Scottish Court of Session Decisions

The pursuer in this action seeks reparation in respect of injuries to his back said to have been suffered by him in consequence of an incident involving a car driven by the defender which occurred on 19 April 1995 within the exhaust fitting bay of the workshop premises operated by National Tyre Services in Glasgow Road, Clydebank.

The layout of the premises may be briefly described thus. The exhaust fitting bay is situated to the rear of the premises, away from Glasgow Road. To the front of the premises is situated the tyre fitting section and also the entrance to the customer reception desk or counter. Internally, between the exhaust fitting bay and the tyre fitting section at the front there is an area of office accommodation, the upper walls of which consist principally of glass, so that from the office one is able to see into, among other places, the exhaust fitting bay. Internally, pedestrian access may be gained from the office area to the exhaust bay by means of a set of double doors. However, in order to gain vehicular access to the exhaust fitting bay a vehicle arriving at the front has to be driven round, externally, to the back of the premises.

In April 1995 the exhaust bay was equipped with a hydraulically operated ramp onto which a vehicle could be driven and which could then be raised so as to give the mechanic or fitter convenient access to the underside of the vehicle for inspection, repair or replacement of the exhaust. (The ramp which was present in April 1995 is that shown on the left in the photograph  No.1 of the photographs Nos.6-8 of process, the ramp shown on the right in that photograph having been installed at some later date). The ramp includes two parallel "runners" or metal plates running lengthways at either side, on which the wheels of the vehicle require to be positioned. With the ramp in its lowered position the upper surface of those runners is not flush with the floor but is a little distance above it. Accordingly, to allow a vehicle to be driven onto the ramp there are two sloping flaps at the entrance to the ramp linking the runners to the floor surface. At the far end of each of the runners there is a raised transverse rail or "stopper" evidently intended to impede a vehicle from going off the far end of the runners. The height of the top of the stopper above the upper surface of the runner was measured by the witness, Mr. Cameron, as 4.5 inches. On 19 April 1995 a workbench was positioned near or against the wall of the exhaust bay directly in front of the far end of the ramp. According to measurements taken by Mr. Cameron, the depth of the bench was 2 feet 6 inches and the space between the far end of the ramp and the wall was approximately 6 feet. The work bench has subsequently been removed from that position and placed elsewhere in the premises.

In the form which the pleadings for the pursuer ultimately took, what is essentially averred on his behalf to have occurred is this:

For his part, the position adopted in averment by the defender, who had gone to the premises in order to get a new exhaust fitted to his car, is that, having being told by the pursuer to do so, he drove his car onto the ramp. He switched the engine off and got out. He apparently left the car in gear. The pursuer having by then gone to the office accommodation the defender remained near his car. The averments continue thus:

In the account of the accident which he gave in evidence the pursuer deponed that both he and Clark, the apprentice, were at the workbench and engaged in tidying away tools which had been used in a previous job. He was teaching Clark the different sizes of tool and where they should be placed. He had his back to the ramp and was facing the bench. He then heard the noise of a car, which he subsequently ascertained was driven by the defender, going onto the ramp. He was not expecting any car. He turned round and the car was on them. He was struck by the car and knocked into a corner of the exhaust bay. Charles Clark was pinned by the car against the workbench. In the course of cross-examination the pursuer said that he was struck on the right side of the body at about waist height by the bumper of the car. He was propelled a distance of some three and a half feet; hit his face against the wall, and then landed on his left-hand side on the ground. The pursuer deponed that he thereafter got up from the ground. Clark was screaming in pain since he was standing with his legs trapped between the bumper of the car and the workbench. The pursuer accordingly hurried to the car and tried to get the car off Charles Clark. According to the pursuer the car had not stalled; rather, the engine was running and the car was pushing against them. Glass from windows set in the wall above the workbench was breaking and coming down around them. Both of the front wheels of the car had gone over the "stoppers". Having returned to the car the pursuer sought to push it off by facing it, putting both his arms under the bumper and pushing with his leg or legs against the workbench.

The pursuer went on to say that he thereafter saw the driver - the defender - lying on the floor, his brother Ian Wylie, who held the post of Manager of the branch, having come from the office area and having got into the driver's seat. Ian Wylie then reversed the car a little, sufficient to release Clark, who was then placed on the ground until the arrival of the ambulance. The pursuer stated that, in the course of reversing, the car caught on a part of the ramp and the near side bumper was pulled off and hanging loose.

The police attended along with the ambulance. The pursuer said that he spoke with the police. He accepted in the course of his evidence that he made no mention to the police of having been struck by the car or of having suffered any injury. After the incident the pursuer used a jack to replace the defender's car onto the ramp. According to the pursuer he was assisted in that operation by his brother, Ian Wylie, who accompanied Clark in the ambulance to the hospital but did not return to the branch that day. The pursuer remained at the premises for the rest of the working day. Although he claimed to have no recollection of doing so he accepted that, as was indeed vouched by the N.T.S. documentation, lodged in process, he had repaired the exhaust of the defender's car. He agreed he had worked on until normal close of business in the evening.

In his evidence, the pursuer was adamant that there was no question of his having instructed the defender to drive his car onto the ramp. There was equally no question of the defender's having stopped the car on the ramp and then returning to start the engine whereupon the car suddenly moved forward because it had been left in gear.

The pursuer described himself as being "shaky" on his return home that evening. By the next morning his back was sore and very stiff. He had great difficulty in putting on his socks and lacing up his boots. He had never had any soreness or stiffness in the back prior to that occasion. However, he went to work on that and the following days and he did not go to see his general practitioner until some weeks later (the actual date, according to the general practitioner's records, being 31 May 1995). He did so after he had experienced an episode of acute pain radiating down his leg while crossing a street near to his home in Paisley. The pursuer accepted that on that occasion he had made no mention to his general practitioner of the incident on 19 April 1995.

It is convenient to interpose at this point that the general practitioner's notes record the pursuer's having given an account of suffering back pain for three months. Although it was suggested to the general practitioner - Dr. Mason - by counsel for the pursuer, that his entry of three months might be an error, perhaps an error for three weeks, Dr. Mason was clear that it was not an error, both since in the letter referring the pursuer for an orthopaedic assessment which he wrote on the following day he set out in full hand a history of three months and also since it was his having established with the pursuer a history of back pain for that length of time which led him to refer the pursuer for that orthopaedic assessment. The assessment took place on

4 August 1995 at the Royal Alexandra Hospital in Paisley when the pursuer was noted as having given a history of four months' back pain. No reference is to be found in those notes of the events of 19 April 1995.

The pursuer did not consult his doctor again until 26 April 1996. In that interval he had been transferred by National Tyre Services, at their initiative, from the Clydebank branch to the Paisley Road West branch in order to take up the job of training youths placed with the National Tyre Services for training by the Department of Employment. It was evident that the pursuer did not enjoy this work. He said that he did not have sufficient patience for it and indicated that things such as the late attendance of many of the trainees was "getting under his skin". The pursuer also maintained that he was unfit to do heavy work such as work on heavy goods vehicles, and suggested that factor as a further reason for his transfer from Clydebank to Paisley Road West. At all events the pursuer left National Tyre Services of his own accord, without having taken any medical advice, on 5 February 1996.

When he consulted Dr. Mason on 26 April 1996 the pursuer was noted by Dr. Mason as complaining of constant back pain which had resulted in his having to leave his employment on 5 February. Among other things the note contains these words:

Evidence was also led on behalf of the pursuer from his brother, Ian Wylie, who as already indicated was the manager of the Clydebank branch at the time of the incident. It appears that the staff of the branch then consisted of the Wylie brothers, Charles Clark, and a girl who worked in the office. According to Mr. Ian Wylie, on the morning of 19 April 1995 he spoke with a person whom he now knows to be the defender at the front of the premises having gone out to see what that customer wished. He told the defender to take his car round to the back of the branch where they would put it on the ramp for him and check the exhaust. No one else was present at the time of this conversation since Gordon Wylie and Charles Clark were in the back bay. According to the witness he then went through to the back of the premises by the doors leading from the office area to the exhaust bay. He told his brother Gordon Wylie that a car was coming round and that he, Gordon Wylie, should put it on the ramp. He then returned to the office area. While engaged in the office area, his attention was alerted by the sound of screaming from Clark and Gordon Wylie. He immediately looked through the windows into the exhaust bay. They were screaming because, as the witness put it, a car had come over the ramp and pinned the two boys against the bench. Gordon Wylie, he said, was at the near side front and was over the bonnet, trapped between the bench and the near side front of the car. Mr. Ian Wylie stated that he then left the office and ran round the rear of the car towards the driver's door, which was open. He pulled the driver out of the car and entered it. The engine had stalled. Mr. Ian Wylie was clear that the car was stationary and it was not pressing forward with the engine running. Mr. Wylie therefore started the motor and reversed the car to free his brother and Charles Clark. In doing so he said the front nearside bumper caught on a vertical post of the ramp and was pulled off and was hanging off. In his evidence Ian Wylie was insistent that on hearing the sound of screaming what he immediately observed was two people trapped between the car and the workbench. He did not see anyone being propelled into a corner, then getting up and returning to the front of the car.

Having freed both Charles Clark and Gordon Wylie, Mr. Ian Wylie took them to the reception and summoned an ambulance. Charles Clark was able to walk with assistance from the witness. According to Mr. Ian Wylie, his brother had also been injured and he expected his brother would also have to go to hospital. Gordon Wylie, he said, told him at the time that he was sore, suffering from a bad or sore back. Mr. Ian Wylie accompanied Charles Clark to hospital and remained with him. When Charles Clark was discharged home in the early afternoon, Ian Wylie did not return to the branch but made his own way home from the café to which he and Clark had gone after they had left the hospital. He had no recollection of ever helping his brother jack up Mr Friel's car to re-position it on the ramp.

According to the evidence given by Charles Clark, on the morning of the day of his accident he had initially assisted Gordon Wylie in replacing an exhaust for another customer, after which he had gone to the front of the premises while Gordon Wylie remained in the exhaust bay to tidy up the tools. At the front of the premises he began talking to Ian Wylie and, according to Mr Clark, had been talking to him for approximately 10 minutes when the person now known to be the defender, Mr. Friel, came up and asked for his exhaust to be checked. According to Mr. Clark, Ian Wylie told the defender that he should take the car round to the back of the building, leave it at the doors, and Mr. Gordon Wylie would then put the car on the ramp. The witness deponed that he then left Ian Wylie and went to speak to Gordon Wylie who was at the workbench and told Wylie that a car was coming round. He then proceeded to help Gordon Wylie put away the tools from the previous job. While he and Gordon Wylie were engaged in that activity he heard the noise of a car coming on to the ramp. He immediately turned round to find the car almost upon him. The car then came off the ramp. Instead of jumping aside, he jumped straight up and his legs were crushed against the bench. At the moment of that happening Gordon Wylie was beside him, right next to him at the bench.

Charles Clark went on to say that once he turned round where he was being crushed Gordon Wylie was "with his back to the car, trying to push the car off my legs". The witness then went on to describe a picture of Mr. Wylie crouching on the floor but facing the workbench and yet trying to lever up the car with his back, his hands being placed on the workbench. According to Mr. Clark he was released when Mr. Ian Wylie reversed the car a little, Mr. Ian Wylie having come from his office, having run round the car, and having pulled the driver from the car thereby causing the driver to fall to the ground. He was then assisted by Mr. Ian Wylie into the office until taken to hospital whence he was sent home after examination and x-ray.

On Mr. Clark' s account of matters, no attempt was made by Mr. Friel to reverse the car. The car was still moving and the engine still running until Mr. Friel was manhandled from the car by Ian Wylie. Mr. Clark agreed that in the process of reversing, after Ian Wylie had taken charge of the car, it was damaged. Mr. Clark deponed that the driver's side front wing was almost ripped off. In response to a succeeding, leading question from pursuer's counsel to the effect that it was the bumper, rather than the wing, the witness conceded that possibility but considered that it was the driver's side rather than the near side.

The defender, a 58 year old self-employed printer, gave evidence on his own behalf. He explained that he drove past the National Tyres Services' Clydebank branch daily on his way to and from work. Since a hole had developed in the exhaust of his Vauxhall Cavalier car, he called at the premises on the morning of 19 April 1995 in order to have the matter receive attention. He stopped his car at the front of the premises, got out and spoke to an employee whom the defender subsequently established in the course of his evidence to be the pursuer. In response to inquiry from that employee he explained that he was in for an exhaust. The employee told him to drive the car round to the back of the premises, which the defender did. The defender then parked his car at the entrance to the exhaust bay in front of the ramp. The same employee with whom he had spoken earlier (the pursuer) then came through from the office area and asked what it was again that the defender was in for. The defender again explained that he was in for an exhaust. The same employee then told him to drive his car on to the ramp. The defender accordingly drove the car on to the ramp. He switched off the engine and got out of the car. The defender went on to say that he then went to the area at the end of the ramp, at the rear end of the car, and waited. The employee with whom he had just spoken had disappeared into the office area and he was alone for a while. There then appeared a much younger man, aged 17 or 18 years, who asked him what he was in for. The defender explained again that it was for a repair to his exhaust. The youth then asked the defender to move his car a little further along the ramp and went and stood in front of the car between it and the bench. The defender explained that as he got into the car he asked the youth to move away from the front of the car. The youth made a small movement to the side but did not move from the front of the car. The defender then testified that he switched on the engine and the car immediately jerked forward, the only explanation for that jerking forward being that he had left the car in gear. As it jerked forward the car both veered a little to the left so that the front wheels came off the runners and also struck the youth on his legs. The defender realised immediately that he had struck the youth, who had begun to scream. The defender immediately put the car into reverse gear and tried to put it back up on the ramp but he was unable to do that. He therefore switched off the engine, got out of the car and went towards the young man with a view to assisting him. As he did so he observed the employee with whom he had first spoken (the pursuer) come out from the office area. On being asked by that employee what had happened the defender replied that the car had come off the ramp and jammed the boy. The defender and the employee were able to edge the boy (who was, of course, Charles Clark,) out from the gap between the front of the car and the bench by walking him along in a sort of sideways movement . The defender stated that he then asked the pursuer to find a chair for the boy. He remained with the boy while the pursuer went off in search of a chair. While the pursuer was doing that another man appeared to whom the defender explained what had occurred. That other man then returned to the office area. Someone then provided tea for Charles Clark and himself pending the arrival of the ambulance and the police. The police were in attendance before the ambulance left. Charles Clark was able to walk to the ambulance.

The defender went on to explain that after the police and the ambulance had departed the employee with whom he had first spoken (the pursuer) obtained a hydraulic jack with which he and the defender were able to re-position the defender's car on the ramp. The front wheels of the car had not gone over the "stoppers" but those wheels had laterally come off the runners on the car's nearside. The pursuer then proceeded to replace the defective exhaust . Having paid for the repair to the exhaust the defender then proceeded on to his workplace. Later in the course of the afternoon, he telephoned the branch to inquire after the youth who had been struck by the car. A male voice informed him that Mr. Clark had been sent home. The defender then obtained from the branch a note of Mr. Clark's address and after he had finished work that evening he went to see Mr. Clark and his parents in order to see how Mr. Clark was and to express his regrets.

Evidence was also led on behalf of the defender from the two police officers who attended at the scene, namely Police Constable Moyes and Police Constable Catherine Sloan. Having spoken with those present and having made some notes in their notebooks the two police officers then reported details of the incident by radio to their controller. Since the incident did not involve the commission of any criminal offence and since the injuries to Mr. Clark did not appear serious, they did not make any more formal report. The system operated by the police involved the controller's recording the details given to him in a computer and those details, along with information from the hospital, were summarised in 7/19 of process - "abstract of occurrence". The terms of the summary of the occurrence as reported to or by the police are these:

In her evidence, P.C. Sloan stated that she had spoken with the pursuer, having noted his name and address in her notebook as being someone who had been present. Had there been any suggestion that he had been struck by the vehicle she would have noted that fact in her notebook but she had made no such note. She was clear that only one person was suggested as having been injured and that what was contained in 7/19 of process was entirely consistent with her recollection of what she and her colleague had been told.

In his evidence Police Constable Moyes indicated that his recollection of what he and his colleague were told was that the vehicle, in for repair, had been on the ramp when the owner was asked to move it forward a little. It had then moved suddenly forward, possibly having been left in gear. It had hit a young tyrefitter. He could not recollect anything as suggesting that anybody else had been struck by the car and he would have expected to have been told of that if it had been the case that someone, additional to the tyrefitter (Mr. Clark) had been struck. Nothing had been said to the effect that the driver had driven onto the ramp at some speed and had not stopped. If that had been the information with which he had been presented, he thought he would have remembered receiving that account. He had inspected the vehicle and noticed some damage to the near side light. He did not recollect there having been any damage to the premises. If that had been mentioned to him he would have made a note of that as well.

It will be readily apparent from the foregoing summaries of the evidence given in relation to the events of 19 April 1995 that there are sharp conflicts between the accounts spoken to by the pursuer and his witnesses and the account given by the defender. Having considered the evidence it appears to me that the evidence given by and for the pursuer presents a number of unsatisfactory features.

Firstly, if the pursuer were correct in his account of the car's having been driven along the ramp by the defender, contrary to instruction, and of his being struck by the moving vehicle with such force as to propel him a distance of some three or three and a half feet, striking a wall, and then falling to the ground it is very difficult indeed to believe that he would not have reported, or made mention of, that fact to the police at the time of their attendance. It is however evident from the police records and the testimony of the officers themselves that nothing in any way suggestive of that account was related to them. Indeed, as I understood his evidence, the pursuer accepted that he had made no complaint of being struck in any way by the defender's car. The pursuer attempted in evidence to explain his failure to make any mention to the police of his being struck by the car, on the one hand, by stressing his professed concern for Colin Clark, and on the other, by saying that he had not in fact been injured in any way. I have to say that I found, and find, this attempted explanation unpersuasive. Similarly, given the traumatic nature of the accident, so far as affecting him, I find it very difficult to believe that the pursuer would not have mentioned it and the onset of persistent back pain within hours of its occurring when he consulted Dr. Mason on 31 May 1995. Further, if the incident had occurred in the way described by the pursuer and if back pain had not only set in within hours of the accident, but had also been the subject of repeated exhortation to seek medical advice, as the pursuer's partner, Laura Dewar claimed, I find it utterly surprising that he should not have suggested, if not stressed, that connection at his first consultation with Dr. Mason. If matters were indeed as the pursuer had described in evidence, I find quite unpersuasive his attempted explanation that he did not link the back pain to the incident. Although at one point the pursuer asserted in evidence that he had told a doctor at the Royal Alexandra Hospital on 4 August 1995 of this incident, it is to be observed that no record of such information is contained in the hospital records, and I find this assertion also unpersuasive.

Moreover, it is clear from the evidence given by the medical witnesses that the pursuer has given different, and conflicting, accounts of the alleged incident. I have already set out the note made by Dr. Mason of the consultation in April 1996 but different histories were also given to those examining the pursuer for forensic purposes. Thus, when seen by Mr. Allan, Consultant Orthopaedic Surgeon, on 5 February 1998, the history related to Mr. Allan is recorded in these terms:

The pursuer was seen by Mr Colin Mainds, Consultant Surgeon on 10 August 1999. Mr Mainds' report (No.7/17 of process) states inter alia -

In his evidence Mr Mainds was clear that this was information given to him by the pursuer. It may be noted that the pursuer told Mr Mainds that he had instructed the defender to drive the car on the ramp, a matter which he denied in evidence. The pursuer must also have been aware that Mr Clark returned to work a few days after the incident and had not suffered fractures of his legs. When seen subsequently on 9 November 2000 the history given by the pursuer to Mr Mainds was that -

While I recognise that the history as recorded in the medical reports does not use the precise words spoken by the pursuer and that there is scope for some misunderstanding, I am nonetheless satisfied, even after making allowance for those factors, that the pursuer has been far from consistent in his account of the incident.

Further, the account advanced on the pursuer's behalf in the pleadings has undergone significant alteration in the course of these proceedings. In the summons, served in April 1998, it is averred that the defender's car was driven up the ramp and without warning the defender accelerated instead of breaking. The summons goes on to aver that the pursuer and Mr. Clark were unable to move out of the way and were pinned up against the wall of the workshop. The version to the effect that both the pursuer and Clark were pinned against a wall and trapped persisted throughout the period of adjustment and was incorporated in the Closed Record No.13 of process, without there being any suggestion of the pursuer's having been struck and thrown into a corner. A diet of proof was fixed for June 2000 but did not proceed by reason of there being, regrettably, no judge available to hear the case. Shortly before that diet a minute of amendment was tendered which made certain changes to the pleadings for the pursuer, but no alteration was made to the allegation that the pursuer had been trapped against a wall until freed by another employee. The pursuer agreed that all of these accounts were wrong. Only by minute of amendment in November 2000 was the present version advanced in the pleadings. Again, while I readily recognised that the account of an accident given by a pursuer in his pleadings is distilled or filtered through a process of reduction or summary by his counsel and solicitors and minor inconsistencies are generally of no consequence, in the present case I consider that the contrast between the account initially advanced and maintained in the pleadings of the pursuer's having being trapped and his ultimate assertion of having been struck and thrown into a corner and thereafter coming to the assistance of the unfortunate Mr. Clark to be of materiality in my assessment of the reliability and credibility of his evidence.

Accordingly, taking the pursuer's testimony on its own, and looking at it both intrinsically and by reference to prior inconsistent statements, I find much that makes me question its reliability.

I therefore turn to see what support is to be derived from the testimony of the witnesses present at the time and adduced in his support. On that examination I do not consider that either the testimony of the pursuer's brother, or that of Mr. Clark provides any proper support. In his testimony Mr. Ian Wylie adhered to the position that the pursuer was trapped between the car and the workbench and all that he described was, to my mind, inconsistent with the pursuer's account of having been struck and propelled into a corner. Mr. Ian Wylie' s account may well be consistent with the version advanced in the pleadings prior to November 2000 but, as the pursuer accepted, the version so advanced in his pleadings was wrong. Charles Clark's evidence was to the effect that the pursuer was standing beside him at the workbench at the very moment when the car trapped him against the bench. He said nothing positively supportive of the pursuer's account of being thrown into a corner. He then described the pursuer as crouching down, facing the bench, using his back to lever the car away and pushing with his hands against the bench. Even if that were generously to be assumed to occur after the pursuer had been precipitated against a wall, had fallen to the ground in the corner, and had thereafter raised himself and gone to the assistance of Mr. Clark, it is not consistent with the pursuer's account of allegedly facing the car and pushing with his hands under the bumper and with his feet positioned against the bench for purchase. It is also, as counsel for the defender pointed out, difficult indeed to envisage the practical possibility of either of those positions being adopted when - as appears to have been the case - the space between the front of the car and the workbench was so narrow as to jam or crush the legs of Mr. Clark. Either position - whether facing the bench or facing the car - appears equally improbable. As counsel for the defender further pointed out there are also other material conflicts in the evidence of the witnesses for the pursuer, such as that between Mr. Ian Wylie's testimony that he was alone when he spoke with the defender at the front of the premises and Clark' s testimony that he, Clark, was present; between Ian Wylie' s evidence that the car had stalled and the engine was not running and Gordon Wylie's evidence that the engine was running and, the car in gear and pushing forward. I would also observe that the pursuer's evidence that he did not expect any car to arrive in the exhaust bay is inconsistent with either the version of Mr. Ian Wylie that he had expressly told Mr. Gordon Wylie that a car was coming round or Clark's version that he told the pursuer similarly.

As counsel for the defender further submitted, the account given by George Clark and Gordon Wylie of the car proceeding onto and immediately off the ramp in a single movement or sequence is in sharp conflict with both the police abstract, whose terms have already been set out, and the entry inserted at some indeterminate point in time by Ian Wylie in the Company's accident book: "Customer puting [sic] car on ramp left in gear shot off hit Charles". The accident book also contains an entry immediately thereafter in respect of the pursuer the brief description of which is - "Customer puting [sic] car on ramp shot off hit Gordon". The injuries attributed to Gordon Wylie in the book are "shoulder and back trapped between ramp/and bench". The preceding entry is dated July 1994. The succeding entry is dated August 1998. It is plain that despite the apparent times of reporting Mr. Ian Wylie did not make those entries on the date of the accident. He said that he made those entries some time a little later. I do not consider that the time at which those entries were made can be reliably established.

For these, among other reasons, I have to say that, even in absence of the evidence given by the defence, I do not consider the evidence tendered for the pursuer to be prima facie reliable.

By contrast, the very clear impression which I formed of the defender, Friel, was that of a conspicuously honest witness whose evidence was also reliable. Subject to one possible qualification his evidence is wholly consistent with the information supplied contemporaneously to the police. The qualification is this. In his evidence Police Constable Moyes stated that he had examined the car and recorded in his notebook that the near-side indicator lamp was damaged. He did not elaborate on the nature or extent of that damage. In his evidence, which had preceded that of P.C. Moyes, the defender, Friel, stated that the car was not damaged in this incident. He was asked specifically about the bumper (which the pursuer had claimed to be hanging off) but not about the near-side light which had hitherto received no mention in the evidence. It is not entirely clear that the damage noted by the police constable was suffered in this particular incident and I do not see this matter as diminishing my clear impression of Mr. Friel' s manifest honesty and substantial reliability. It may, more importantly, be observed that the police evidence of their examination of the car wholly contradicts the assertion by the Wylie brothers that the nearside bumper was hanging off and also Clark' s assertion that the offside wing was ripped off. There is also no support in the evidence of the police for the pursuer's assertion that in the course of the incident the glass panels above the workbench were breaking and coming down around them.

The defender freely admitted - as he has done all along - that as a result of his causing the car to jerk forward, he struck and injured Mr Clark. He was plainly sorry at the time that such should have occurred and he went to the trouble of enquiry after the fate of Mr. Clark, ascertaining his address, and visiting him at his home to express those regrets again. Mr. Clark accepted that the defender had made such a visit, albeit that he differed, in my view immaterially, as to its timing. No reason is suggested wherefor Mr. Friel should deny that his car struck the pursuer, had that happened. As the defender put it, if he had hit two chaps he would admit that he hit two chaps. But Mr. Clark was the only person there when the car jerked forward.

For all these reasons, I consider the evidence of the defender is clearly to be preferred to that of and for the pursuer, which I reject insofar as inconsistent with what is said by the defender. On the balance of probabilities I am well satisfied that the defender's account is the correct one and that the pursuer was not struck by the defender's car in any way and indeed only appeared at the later stage when the defender, Mr. Friel, was going to assist Mr. Clark. I am also satisfied that any assistance rendered by the pursuer was simply on the lines described by Mr. Friel. In these circumstances the defender is entitled to absolvitor.

That finding is sufficient for disposal of the action but it is appropriate that I give a relatively brief expression of my views on the appropriate amount of damages had the pursuer been successful.

Counsel were agreed in terms of the joint minute lodged in process on the appropriate sums which would fall to be awarded for solatium and loss of services. Counsel for the pursuer did not insist in the claim in the pleadings for losses in connection with the pursuer' s sideline of trading in second-hand cars. Accordingly the only matters relating to quantum of damages which remain in dispute are loss of earnings to date and future loss of employability.

There was ultimately little real difference among the medical witnesses concerning the pursuer's medical condition and I simply refer to the medical reports in process. Briefly, the pursuer does, unfortunately, suffer from chronic low back pain. He is viewed as being unfit for heavy work but can undertake lighter work which involves neither heavy lifting nor bending nor prolonged periods of sitting. According to Mr. Scott, Consultant Surgeon, the pursuer ought to be capable of working in a supervisory capacity or in training others.

In respect of loss of earnings to date, counsel for the pursuer invited an award of £38,386.65 with interest at a median rate of 4% per annum from March 1996, producing a figure of £46,063.98. This calculation proceeded on the basis of the pursuer's average net wage preceding the cessation of his employment and ran from that cessation. Counsel for the pursuer pointed out that the pursuer had taken a first step to becoming a driving instructor but had been thwarted in that by not having the appropriate funds of £2,195.00.

Counsel for the defender disputed that approach. He pointed out that the pursuer had left National Tyre Services in February 1996 of his own accord. He had not been medically advised that he was not fit to continue in that employment. He had not in fact attended his general medical practitioner with any complaint of backache prior to leaving. He was at that time responsible for training youths from the unemployment services. That was, on the medical evidence, his job within his then current capabilities. His efforts to seek other employment had not evidently begun until the year 2000. Counsel for the defender however conceded that having once given up his employment at the Paisley Road West branch, once he thereafter sought other employment the pursuer would, by reason of his back problems suffer an element of loss of employability Counsel thus suggested a figure of £10,000 to reflect that past loss of employability.

In my view the approach of counsel for the defender is to be preferred. I am persuaded that the pursuer's decision to leave National Tyre Services on 5 February 1996 was not prompted by medical reasons. On the medical evidence, it appears to me that the job which he was doing was within his capability. However it was not to his taste. Nevertheless, the pursuer having resigned on the account of that distaste, I accept that the pursuer's back problems (arising for reasons unconnected with events on 19 April 1995) imposed some restrictions on the other jobs available to him. Had I found that those back problems were related to events on 19 April 1995 and to the fault of the defender, I would have allowed the amount suggested by counsel for the defender of £10,000, which approximates to fifteen months of the pursuer's previous average net earnings.

So far as future loss was concerned, counsel for the pursuer invited an award for loss of employability and she proffered the figures of £15,000 to £20,000 as being reasonable. For his part, a counsel for the defender did not take issue with that general approach but said that the figure proposed was excessive. This matter is plainly not capable of any precise assessment. All that I say is that I do not think the figures proposed by counsel for the pursuer to be excessive. Had it been necessary for me to make an award of future loss of employability I would have awarded the sum of £20,000.

In the event I shall uphold the third and fourth pleas-in-law for the defender and grant decree of absolvitor.