Scottish Court of Session Decisions

Dunn v. Carlin & Anor [2003] ScotCS 24 (31 January 2003)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Philip Lord McCluskey	XA131/00 OPINION OF THE COURT delivered by LORD PHILIP in APPEAL From the Sheriffdom of Tayside, Central and Fife at Dundee) in the cause AGNES DUNN Pursuer and Respondent; against FRANK CARLIN First Defender and Appellant; and JOHN WHALLEY Second Defender: _______

 

Act: Fitzpatrick; Allan McDougall & Co, S.S.C., MacDonald Garvie, Solicitors, Dundee

(for Pursuer and Respondent)

Alt: Lindhurst; Campbell Smith, W.S., Muir Myles Laverty, Solicitors, Dundee

(for First Defender and Appellant)

31 January 2003

1. This is an appeal by Frank Carlin ("the appellant"), the first defender in an action raised in the Sheriff Court, Dundee by the late Alexander Brown (here referred to as "the pursuer") claiming damages for injuries suffered by him when he was a visitor in the appellants' scrap yard at Marybank Lane, Dundee. After proof the Sheriff found the appellant liable to the pursuer in damages and awarded the sum of £57,020. The defender appealed against the Sheriff's interlocutor to the Sheriff Principal. The Sheriff Principal refused the appeal and the appellant now appeals against the interlocutor of the Sheriff Principal. Between the date of the Sheriff Principal's interlocutor and the hearing of the appeal before this court the pursuer died, and his representative, Mrs. Agnes Dunn, was sisted as pursuer and responded in his place.
2. The general background to this case, and indeed the bases of the cases of fault made by the pursuer, are set forth concisely and clearly in the Note by the Sheriff Principal (Wheatley) dated 4 August 1999. That summary, which accurately reflects the findings in fact by the Sheriff (Davidson), is referred to. For present purposes it is necessary only to say that Alexander Brown entered the appellant's scrap yard at a time when John Whalley, one of the appellant's employees, acting in the course of his employment, was engaged in the task of decanting petrol from a vehicle with a view to storing it in a jerry can. As the pursuer passed John Whalley, the petrol ignited and the pursuer was severely burned. (John Whalley is often referred to in the pleadings and Notes as "the second defender").
3. When the proof was heard the pursuer had a case under section 2(1) of the Occupiers' Liability (Scotland) Act 1960 and a case based on the alleged negligence of John Whalley: he was blamed on the basis that he was smoking a cigarette while decanting the petrol. The case against John Whalley failed because the Sheriff held that he was not smoking at the time of the outbreak of the fire (see finding in fact 27). In the same finding, the Sheriff recorded that the pursuer was not smoking either at the time of the outbreak of the fire, and stated: "The cause of the ignition of the fire remains unknown."
4. The appellant had no criticism to make before this court of the findings in fact made by the Sheriff and he specifically departed from the criticisms of those findings which he had presented to the Sheriff Principal. Finding in fact 24 is in the following terms:

"24. While the pursuer was in the yard on 18th June, 1992, John Whalley was removing a petrol tank from a Renault motor car. He had removed the tank from the car and had then proceeded to empty the contents of the tank into a plastic bucket. He had filled the bucket and had gone to obtain a jerrycan from the store, taking the full bucket with him. From the time he began to empty the petrol tank into the bucket, the petrol had been rapidly vaporising. As he began to pour the petrol from the bucket through a plastic funnel into the top of the jerrycan, the petrol vapour ignited and flames spread extremely rapidly around the yard, but particularly in the area of the bucket and the jerrycan. The pursuer was caught by these flames. He was wearing a nylon boiler suit. His clothing caught fire. He ran about the yard screaming. He was eventually caught by the defender and Messrs. Cuthil and Cruickshank who rolled him in an old blanket and managed to extinguish the flames. Whalley called the fire service. He also called for an ambulance."

Messrs. Cuthil and Cruickshank were, respectively, a casual customer also in the scrap yard looking around for a part for a car and his companion, Frank Cruickshank.

5. Against this background of fact it is perhaps surprising that the pursuer's case was not simply presented to the court as one founded upon res ipsa loquitur. However, for reasons that were not explained, the case was presented on record in a different way. The material facts about the danger were averred by the pursuer in the following terms.

"Petrol is a highly flammable substance. The said method which was adopted for its removal from the fuel tank of a scrapped vehicle was one which was inherently unsafe. The petrol was poured into a large open bucket. There was thus a large surface area of petrol exposed to the air and vaporising. The warm weather increased the petrol's vaporising properties. The presence of petrol vapour in the air gave rise to a considerable risk that the petrol would ignite on contact between the vapour and an ignition source. The First Defender was aware that the Second Defender would decant the petrol by the method herein described. Both Defenders knew or ought to have known, as was obvious, that the said method was highly dangerous. The risk of the petrol igniting could readily have been addressed by employing a safer method for removing the petrol. In particular, the petrol could have been siphoned from the fuel tank by means of a hose, a pipe or other conduit connected between the fuel tank cap and the storage container. Although petrol is highly flammable, it is not apt in the ordinary course of events to combust spontaneously, in the absence of an ignition source. In the present case the most likely such ignition source was a cigarette. At the material time the Second Defender was smoking a cigarette and the cigarette caused the petrol vapour to ignite."

6. The pursuer's case against the appellant was in the following terms:

"Cond. 3. The said accident was caused by the fault and negligence of the

First Defender. It was his duty as occupier of the said premises to take such care as was reasonable to see that persons entering thereon, such as the Pursuer, did not suffer injury by reason of any danger due to anything done or omitted to be done on the premises. Reference is made to Section 2(1) of the Occupier's Liability (Scotland) Act 1960. In the circumstances condescended on it was incumbent upon the First Defender in the performance and discharge of his said duty to see that when petrol was removed from fuel tanks on his premises a safe method was employed. It was incumbent upon him to prohibit the obviously dangerous method of decanting the petrol into an open container. It was incumbent upon him to instruct that the petrol be siphoned into a storage container. In the performance of his said duties the First Defender failed and so caused the said accident. Had it not been for his said failures in duty the said accident would not have occurred. The Defenders' averments in answer are denied except insofar as coinciding herewith."

Article 5 of the Condescendence was introduced by the words "Separatim, the said accident was caused by the fault and negligence of the Second Defender". That case was based entirely upon the averment that John Whalley was smoking a cigarette while decanting petrol.

7. Against this background of averment and findings in fact the first defender and appellant advanced the following grounds of appeal:

"1. The learned Sheriff Principal of Tayside, Central and Fife erred in

refusing the first defender's appeal on 4^th August 1999 against the learned Sheriff's interlocutor dated 9^th July 1998 sustaining the pursuer's first plea in law, finding the first defender liable to the pursuer in the sum of £57,020, and repelling the defenders' first to ninth pleas in law and sustaining his tenth plea in law.

2. The Sheriff Principal erred in law in finding that the Sheriff correctly

held:

(i) that the pursuer had sustained loss, injury and damage as a

consequence of the defender's breach of statutory duty;

(ii) that in the circumstances found proven, the defender's actings

or omissions were the causa sine qua non of the accident;

(iii) that it was reasonably foreseeable by the defender that an

accident such as that which happened would take place.

...

4. The Sheriff Principal erred in law in holding that the Sheriff correctly

found the case on record against the first defender to have been proven by the pursuer, when the case he held proven was in fact a distinct, separate, and new case

5. The Sheriff Principal erred in finding that the Sheriff properly assessed

and applied the documentary and witness evidence before the court in relation to the conclusions which he drew based on that evidence.

6. The Sheriff Principal erred in holding that the Sheriff properly rejected

objections raised at proof to the line of evidence regarding possible sources of ignition other than that averred on Record, namely cigarette smoking.

7. The Sheriff Principal erred in holding that the Sheriff had correctly

assess quantum in respect that he selected:

(i) the figure of £40,000 as the appropriate award for solatium;

(ii) the figure of £2,471 as the appropriate multiplicand for future

care costs."

In advancing grounds of appeal 1, 2 and 5, Mr. Lindhorst for the appellant submitted that before the duty incumbent on the appellant by virtue of section 2 of the Occupiers Liability (Scotland) Act 1960 could arise, the danger which gave rise to the pursuer's injury had to be reasonably foreseeable. The onus was on the pursuer to establish that the danger was reasonably foreseeable to the appellant. Foreseeability fell to be judged on the basis of how the danger would have appeared to a reasonable person in the appellant's position before the accident . It was not to be judged on the basis of hindsight. (McGlone v. British Railways Board 1966 S.C. (H.L.) 1).

8. Counsel submitted that the evidence had failed to show that the accident was reasonably foreseeable to the appellant. Reference was made to Bell v. S.S.H.A. 1987 S.L.T. 320 and Bolton v. Stone [1951] AC 850. The method of decanting petrol used by John Whalley had been employed in the appellant's scrap yard for several decades without incident. Any risk involved in the decanting operation had been minimised by the adoption of the method used by Whalley.
9. Mr. Lindhorst argued further that in determining that the appellant had breached the duty of reasonable care incumbent on him the Sheriff had misdirected himself. What amounted to reasonable care in all the circumstances of the case was a question of fact to be determined on the basis of the knowledge of the reasonable man in the defender's position at the time of the accident. The Sheriff had erred in respect that he had applied a standard of strict liability and had judged the matter on the basis of hindsight. When the correct test was applied the evidence showed that the appellant had taken the care which a reasonable person in his position would have taken. The method employed accorded with advice received from a former fireman and complied with all but one of the recommendations contained in the Health and Safety Executive publication "Safe Use of Petrol in Garages". The one recommendation which was not complied with was the use of a closed fuel retrieval system. That system could not be used because of the introduction of anti-siphon devices into the petrol tanks of cars. The method employed was commonly used in scrap yards and minimised any risk. It had been employed without incident for many years.
10. Mr Lindhorst made reference to passages from the evidence which he contended supported his argument. The appellant's evidence was that he did not use a closed fuel retrieval system because of the presence of anti-siphon devices. He had never received any literature from the local authority or any other agency relating to safe practices, but had followed the advice given to him by a former fireman, William Smith. The local Fire Brigade, who had been allowed to use his scrap yard for training purposes, had never made any comment on the method of decanting petrol which he employed.
11. John Radcliffe, a Health and Safety Inspector called on behalf of the pursuer, accepted that the use of a closed fuel retrieval system might not be possible where anti-siphon devices had been fitted. While he felt that all reasonable precautions had not been taken and that a closed retrieval system or other precaution should have been adopted, he accepted that the system employed had caused him no concern at the time of his visit to the yard shortly after the accident. His adverse view of the method used was based on hindsight and on gained experience and research done since the accident.
12. Stanley Johnston, a consulting engineer called on behalf of the pursuer, while critical of the system employed by the appellant, accepted that it was routinely used in scrap yards. At one point he accepted that the fitting of anti-siphon devices made it almost impossible to siphon petrol out of a tank. He had not previously dealt with the handling of petrol in scrap yards.
13. William Cargill, a former station officer with Tayside Fire Brigade called by the pursuer, considered that the method employed was quite safe and similar to the one used by the Fire Brigade itself.
14. In support of ground 2(ii) Mr. Lindhorst submitted that, in the absence of proof that the fire would not have happened if a closed fuel retrieval system had been used, it had not been shown that the appellant's failure to employ such a system was the cause of the accident, rather than an event outwith his control.
15. On behalf of the respondent Mr. Fitzpatrick submitted in relation to grounds 1, 2 and 5 that what constituted reasonable care in all the circumstances was entirely a question of fact for the Sheriff. The Sheriff had found

(i) that on the appellant's premises petrol was decanted more or less daily from

the fuel tanks of scrap vehicles into open receptacles rather than by means of a closed fuel retrieval system (findings in fact 14 and 22);

(ii) that the practice was unsafe (findings in fact 15 - 19);

(iii) that the appellant had never sought any relevant safety advice from any agency

(finding in fact 21); and

(iv) that had he sought such advice, advice recommending the use of a closed fuel

retrieval system would have been readily available to him (findings in fact 16 - 18).

The Sheriff therefore concluded on the facts that the method of fuel retrieval used on the appellant's premises was dangerous; that the appellant should have appreciated and guarded against that danger; that, in the exercise of reasonable care for the safety of persons entering his premises, fuel retrieval should have been accomplished by means of a closed, rather than an open, fuel retrieval system.

16. The question in this part of the appeal was whether the conclusion reached by the Sheriff was one which was open to him on the facts found proved. Even if the Court were disposed to reach a different conclusion, it should not do so unless satisfied that the Sheriff's conclusion could not be explained or justified having regard to any advantage enjoyed by him by reason of having seen and heard the witnesses. The Sheriff was entitled to conclude on the evidence that the pursuer's accident occurred on account of the appellant's failure to take reasonable care for the safety of visitors to his premises.
17. In support of these submissions Mr Fitzpatrick cited passages from the evidence of Stanley Johnston and John Radcliffe. Stanley Johnston's evidence was that the larger the surface of liquid petrol exposed to the air, the greater the amount of vapour generated. Warm weather magnified the extent to which vapour would escape from the surface of the petrol. It could travel considerable distances. The likelihood of less obvious sources of ignition becoming involved was thereby increased. Accordingly, the lack of an obvious ignition source had little bearing on the extent of the risk associated with the operation. The risk would be expected to be known by anyone involved in the motor trade, and warnings appeared in many car owners manuals. His strong opinion was that all practical precautions had not been taken.
18. John Radcliffe spoke to the existence of a number of publications on the safe handling of petrol which were publicly available. They made it clear that the method adopted by the appellant should be avoided. Both Radcliffe and Johnston said that a closed fuel retrieval system was necessary, inexpensive, reasonably practicable, and capable of being adapted to the decanting of tanks fitted with anti-siphon devices.
19. In determining the appeal on grounds 1, 2 and 5 we require to consider whether the conclusion reached by the Sheriff was one which was open to him in the light of the facts found proved. It is not for us, as Mr Lindhorst in effect invited us to do, to examine the evidence anew, and without the benefit of having seen or heard the witnesses, to arrive at different conclusions about the facts established by their evidence. We are not in a position to take a different view of the evidence from that taken by the Sheriff. No challenge was made of the Sheriff's findings in fact. It is not for us to disturb the Sheriff's conclusion unless we are satisfied that it was one he was not entitled to reach on the basis of those findings. We have come to the view that there was ample material before the Sheriff on which he was entitled to come to the conclusion which he did. He found that an accident of the kind which the pursuer suffered was, or ought to have been, reasonably foreseeable to the appellant. The nature of the danger created by decanting petrol into open vessels was not in dispute. Because of the high inflammability and mobility of the vapour given off, ignition could readily be triggered from any one of a wide range of sources. There was evidence that anyone involved in the motor trade should be expected to know that decanting petrol into an open receptacle was to be avoided for this reason. Advice to the same effect was readily available in publications produced by the Health and Safety Executive and motor manufacturers. Standing the evidence of the nature and degree of the risk the Sheriff was entitled to give less weight to the evidence that the appellant had used the method in question for many years without incident. In these circumstances the Sheriff was entitled to conclude that an accident of the kind suffered by the pursuer was reasonably foreseeable.
20. The Sheriff held further, that the appellant had failed to take such care as was reasonable in the circumstances to see that the pursuer would not suffer injury by reason of the danger. What was reasonable in all the circumstances was a matter of fact for him. There was evidence from Mr. Johnston and Mr. Radcliffe that all reasonable precautions were not taken, and that a closed system could be used even where anti-siphoning devices had been fitted. Mr. Radcliffe's evidence was that safety precautions in the form of a closed retrieval system were reasonably practicable and inexpensive. Standing that evidence the Sheriff was entitled to conclude that reliance by the appellant on the gratuitous advice of a part-time fireman given 20 years before was not sufficient to justify his use of the open method. The Sheriff was accordingly entitled to conclude that the appellant had failed to take such care as was reasonable in the circumstances. We therefore reject the arguments based on grounds of appeal 1 and 2. As we have come to the view that the Sheriff properly assessed and applied the evidence before him it follows that ground of appeal 5 also fails.
21. We turn now to the grounds of appeal 4 and 6.
22. The essence of the submissions by Mr. Lindhorst in support of ground of appeal 4 was that the pursuer's case against the appellant was irretrievably bound up with the averment in the third last sentence of the averments of fact quoted, namely, "At the material time the Second Defender was smoking a cigarette and the cigarette caused the petrol vapour to ignite." While counsel accepted that a pursuer did not necessarily fail in an action of reparation simply because he failed to prove each and every averment made on his behalf, the situation in the present case, he submitted, was that the averment that the smoking of a cigarette by John Whalley caused the petrol vapour to ignite was absolutely central and was crucial even to the case made in Article 3 of the Condescendence (the Occupiers' Liability Act case): that, he submitted, was because of the opening words of the fourth sentence of that Article of Condescendence, namely, "In the circumstances condescended on it was incumbent upon the first defender..." These words inevitably referred back to the circumstances averred in Article 2 of the Condescendence, including the crucial averment that John Whalley's cigarette ignited the petrol vapour. In short, the only case that the appellant was required to meet, and this applied both to the case of vicarious responsibility for John Whalley's fault and also to the case under section 2(1) of the Occupiers' Liability (Scotland) Act 1960, was a case based upon proof that the cause of the igniting of the petrol was that specified in Article 2 of the Condescendence, namely John Whalley's cigarette. The case which the Sheriff had held established was a case that was independent of proof that the cigarette smoked by John Whalley ignited the petrol vapour; indeed it did not depend upon proof of any known cause of ignition. There was, he submitted, no room for such a case given the crucial link focused by the use of the words, "In the circumstances condescended on". The case held established by the Sheriff, which plainly proceeded upon the fact that the cause of the igniting of the petrol vapour was unknown to the court, could not properly be regarded as a variation or development of the case of the kind contemplated in the opinion of the Lord Justice Clerk (Thomson) in Burns v. Dixons Ironworks 1961 S.C. 102 at pages 107-108. Reference was also made in this regard to Gibson v. British Rail Maintenance Ltd. 1995 S.L.T. 953, McCusker v. Saveheat Cavity Wall Insulation Limited 1987 S.L.T. 24, Morrison's Associated Companies Ltd. v. James Rome & Sons Ltd. 1964 S.C. 160, Hamilton v. John Brown & Co. (Clydebank) Ltd. 1969 S.L.T. (Notes) 18, and Maclean v. The Forestry Commission 1970 S.L.T. 265. A case based upon a cause of ignition other than the smoking could not, it was submitted, be a variation or development of a case based exclusively upon an express averment that the cause of the igniting was John Whalley's lighted cigarette.
23. In response to the submissions made in support of ground of appeal No. 4, Mr. Fitzpatrick repeated the submission that he had made to the Sheriff Principal to the effect that the appellant had persistently misconstrued the pursuer's pleadings and had reached the mistaken view that all he had to do to rebut liability was to show that John Whalley did not ignite the petrol vapour with a cigarette. In his submission, however, the pursuer had made two distinct cases against the appellant. The first was a case under the Occupiers' Liability Act and related to the appellant's responsibility for employing an unsafe method of removing petrol from fuel tanks on the premises and permitting an obviously dangerous method of carrying out this task to be adopted by his employees. That case was wholly independent of proof by the pursuer of the precise cause of the igniting of the petrol vapour. The second case, and it was noteworthy that it was introduced by the word "Separatim", was a case based upon a distinct averment, namely that John Whalley was smoking and that his action in smoking while decanting petrol caused the igniting of the vapour. It was quite wrong to suggest that the words "In the circumstances condescended on" appearing in the fourth sentence of Article 3 of the pursuer's Condescendence referred back to, and somehow included, the averment that at the material time John Whalley was smoking a cigarette and that that caused the petrol vapour to ignite. On the contrary, the pursuer's case under the Occupiers' Liability (Scotland) Act 1960 was based upon the assertion that the appellant was responsible for a system of work which had the effect of releasing petrol into the air whereby it became vapour which was susceptible to dangerous ignition. He referred to the averment "The First Defender was aware that the Second Defender would decant the petrol by the method herein described." That averment followed the averment that "The presence of petrol vapour in the air gave rise to a considerable risk that the petrol would ignite on contact between the vapour and an ignition source" (emphasis added). The case, therefore, under the Act was a separate case based upon the creation of a dangerous petrol vapour atmosphere and was related to any ignition source, not just to a lighted or smouldering cigarette. In short, the pursuer's case under the Act was not predicated upon proving that Mr. Whalley was smoking at the material time. The case was that it was dangerous to use the system of decanting fuel which the first defender routinely sanctioned. The pursuer did not seek to found upon the practice, permitted by Burns v. Dixon Ironworks and the other cases referred to, of developing or varying a case made on record. The case made on record stood clearly on its own independently of whether or not the actual cause of the igniting of the petrol was proved. Ground of appeal No. 4 was misconceived.
24. We agree entirely with the submissions advanced by Mr. Fitzpatrick for the respondent. For the reasons that he gives, the Sheriff was well entitled to conclude that the pursuer's case did not fail simply because he did not succeed in proving the precise cause of the igniting of the petrol, and, in particular, because he did not succeed in proving that John Whalley had ignited the vapour by smoking a lighted cigarette while decanting petrol. In particular we agree that the words "In the circumstances condescended on" in Article 3 of the Condescendence could not properly be read as meaning that the duty of the occupier of the yard to introduce a safe system - or to avoid having an unsafe system - arose only when one of the circumstances was that John Whalley was smoking while decanting petrol. It is, in our view, clear that the pursuer's case based upon the Occupiers' Liability (Scotland) Act 1960 is a case based upon the failure of the appellant, as occupier of the premises, to protect those entering upon the premises, such as the pursuer, from encountering petrol vapour in such a state that it was liable to ignite fiercely if anything occurred or was done that might cause it to ignite. There can be no dispute, and Mr. Lindhorst did not argue otherwise, that something caused the petrol to ignite. There was a source of ignition. It is abundantly clear, in our view, that the pursuer's case in Article 3 of the Condescendence was not crucially dependent upon proving what the precise cause was.
25. In relation to ground 6, the argument was that the Sheriff fell into error by rejecting objections raised at the proof regarding other possible sources of ignition, other, that is, than cigarette smoking. This submission depends upon the same error made by the appellant, namely that the pursuer's case under the Act depended crucially upon proof that a cigarette smoked by John Whalley ignited the petrol vapour. It also falls into the error of supposing that the Sheriff, by allowing evidence from witnesses as to other ways in which petrol vapour might be ignited, was in some way holding the appellant responsible for the act which ignited the petrol. That is simply not so. The Sheriff's finding of liability under the Act was clearly based upon his finding that the cause of the igniting of the petrol vapour had not been established in the evidence. In these circumstances, it is difficult to see any force whatsoever in the submission made for the appellant that at the proof he was in some way prejudiced by rulings which permitted the introduction of evidence as to other "possible sources" of ignition. Such evidence was in substance designed to show the dangerous character of petrol vapour in the circumstances described. This view, that there is no basis for concluding that there was prejudice to the appellant in this respect, gains some support from the circumstance that in the Answers for the first defender it is denied that John Whalley was smoking and it is averred that the pursuer himself caused the igniting of the petrol because at the time of the accident he, the pursuer, was smoking a cigarette. Further, it is averred that if the pursuer was not smoking a cigarette then the reason for the petrol igniting was not known to the first defender. Thus the first defender's own averments contemplated all the possibilities that arose and we see no basis for holding that he was prejudiced by the Sheriff's rulings.
26. For the foregoing reasons we conclude that grounds of appeal Nos. 4 and 6 both fail.
27. In ground of appeal 7(i) the appellant challenges the Sheriff's award for solatium of £40,000. In presenting this ground, counsel for the appellant specifically refrained from making any criticism of the relevant findings in fact Nos. 32 to 40, in which the Sheriff sets out very fully the extent of the pursuer's injuries, their effect on him and the treatment he received. These findings were in the following terms:

"32. On admission to Dundee Royal Infirmary, the pursuer was found to be suffering from full depth burns to approximately 35% of the surface of the body. He required urgent fluid resuscitation to replace lost body fluids and to maintain blood circulation. These were extremely serious injuries and the pursuer was extremely ill on admission. He was not expected to survive. He would have died within two days but for protein replacement therapy. At a later stage in his treatment, problems not amounting to renal failure, but amounting to a degree of renal dysfunction manifested themselves. He required deep vein thrombosis prophylaxis to avoid the risk of thrombosis while he was immobile. It is well known that serious body burns affect the circulation of blood throughout the body and blood has a tendency to clot. A full thickness burn is a burn which removes the skin and the layer of subcutaneous fat and exposes muscle. This means that initially the degree of pain is less severe because of the destruction of nerve ends. Initially, the pursuer underwent debridement where dead skin was removed. There followed a series of skin grafting operations initially dealing with about 15% of the burnt areas. There was restricted availability of donor sites. Mesh grating had to be used .e. a method of grafting using slices of skin rather than complete sections because of the extent of the injuries in an effort to encourage regeneration of skin. On 17th July, 1992, he underwent further skin grafting. Time had to elapse between grafting operations firstly as these had to be carried out under general anaesthetic and secondly to minimise the risk of infection. The pursuer around this time appeared to suffer periods of significant disorientation on account of the restricted blood supply to the brain. He also suffered severe circulation problems in his left leg. All these complications were directly attributable to the burn injuries. The pursuer went on to suffer from pressure sores as a result of poor circulation and required to have his left great toe amputated. That was carried out under general anaesthetic on 24th August, 1992, and at the same time, further skin grafting operations took place. In between these operations, the burns would require regular dressing and some skin grafting was carried out without the use of anaesthetic. By the beginning of September some occupational and physiotherapy was taking place and the pursuer was fitted with pressure garments, especially elastic tights, which were made to press on the scarring to promote recovery. The pursuer was then mobilised but was only able to walk with the aid of two sticks. He was eventually discharged home on 13th November 1992 having spent almost five months in hospital.

33. Initially, when he got home, he was able to do almost nothing for himself. A nurse attended daily to dress the burns etc and he was dependent upon friends, relatives and neighbours to care for him. He was almost completely immobile and suffering severe pain in his left foot and lower leg. Another particular difficulty was the contracture of his left hand, the fingers, and especially the pinkie, having been pulled in towards the palm of his hand, thus restricting severely the use of this hand. Contact with that hand also caused pain.

34. On 20th September, 1993, the pursuer underwent a further operation to attempt to relive the contracture of the left hand. This operation partially achieved that effect but the left pinkie remained bent and interfering with usage of the hand.

35. At about the same time, the pursuer was referred to the Pain Clinic at Ninewells Hospital as he continued to suffer excruciating pain in his left foot directly attributable to the insult the limb had sustained n the fire. Various attempts were made with medication to find pain relief without success. It was discovered that the pursuer obtained a degree of relief using transcutaneous nerve stimulation. He continues to have and use a TENS machine.

36. On or about 9th September, 1994, the pursuer underwent a further operation to the left hand under general anaesthetic, in a further attempt to make this less of a nuisance to him. Again this operation was successful up to a point.

37. The pursuer underwent a further operation on 19th September, 1995 to his left thumb and ring finger designed to melt away scar tissue which was causing these fingers to remain in a bent position.

38. Subsequent to his giving evidence, the pursuer underwent an operation for the amputation of his left pinkie.

39. The pursuer, now some six years after the accident, is left with extensive scarring, especially to both legs and feet, both buttocks and to his left arm and hand. He cannot bend his left knee. Despite a series of operations, his ability to use his left hand is extremely restricted, in that it has no grip strength and has very limited mobility. He continues to suffer such a degree of pain in his left foot that he requires to take a daily course of prescribed tranquillisers which have some effect in moderating the pain. He remains largely immobile, managing to get around his house with the aid of a stick. Apart from medical appointments he has not been out of the house since 13th November, 1992. His life now consists of occasional visits from friends and relatives, watching television and looking out the window. He has great difficulty in sleeping and requires to sleep on his right side and partly on his stomach. He needs assistance with all ordinary everyday tasks.

40. Prior to the accident, the pursuer was a reasonably fit 72 year old retired gentleman who lived independently and was able to look after himself. He regularly worked at the defender's scrapyard albeit on a casual basis. He maintained an elderly Austin Ambassador motor car and took pleasure at weekends in driving out into the Perthshire and Angus countryside. He maintained an allotment on the Dundee Law where he grew flowers and vegetables and this gave him immense pleasure and he attended there most days during spring, summer and autumn when the weather permitted. He can now do none of these things. He cannot leave his house."

In his Note the Sheriff describes the pursuer's injuries as "devastating", and causing "a very severe major disability".

28. Counsel for the appellant submitted that the award for solatium was unreasonable and plainly excessive in the light of the reported cases. The Sheriff had failed to follow the level of awards revealed by those cases, but had struck out on a path of his own. Counsel cited Morley v. Campbell 1999 S.L.T. 325; Dillon v. Secretary of State for Scotland 1989 S.L.T. 301 and McAleenan v. N.C.B. 1987 S.L.T. 106, and Love v. B.R.B.. 1984 S.L.T. 2, as cases which gave an indication of a figure for solatium appropriate to the pursuer's condition. The report in the case of McAleenan dealt with the cases of seven miners who were injured in an explosion at Cardowan Colliery in 1982. Counsel submitted that one of the miners, Hugh Murphy, had suffered injuries which were close to those sustained by the pursuer. He had sustained burns covering some 35% of his body surface area, required skin grafts and was detained in hospital for three months. One of his little fingers had been amputated and his grip had been substantially impaired. He had sustained damage to his lungs through inhaling smoke and hot vapour and suffered from "agitated depression". He could no longer lead a normal live both because of his physical and his mental state. The solatium awarded in that case was £17,500, the updated value of which was £29,250.
29. In Love an award of £25,000, the updated value of which is £53,750, was made in 1984 to a 10 year old boy. The boy had sustained burns over 53% of his body surface, most of which were full thickness skin loss. His right leg had had to be amputated below the knee and his right arm had been amputated at the upper arm level. He had required extensive skin grafting and there was considerable scarring to his body. Counsel argued that an award of solatium comparable to the updated value of the award in Love would be too high, as the injuries in that case were significantly worse than the pursuer's. The case of Hugh Murphy in McAleenan on the other hand represented the highest point of the appropriate range for the present case.
30. Counsel for the pursuer submitted that in the years since 1987 the courts had increased awards of solatium in excess of the rate of inflation. There had been a general acknowledgement that awards had been too low. In these circumstances the mere application of inflationary increases to earlier awards did not provide an appropriate comparative figure. In any event, the impact of the injuries on the pursuer was greater than in the case of Murphy, and the Sheriff had had the opportunity to observe for himself the catastrophic limitations placed upon the pursuer's activities.
31. We take the view that there are no grounds for interfering with the Sheriff's award of solatium of £40,000. Counsel for the appellant conceded that a range of £25,000 to £30,000 would have been appropriate. Standing that concession, it is difficult to argue that an award of £40,000 is plainly excessive and wholly outwith any reasonable bounds. In any event the range contended for by counsel for the appellant did not take account of the general increase in awards of solatium, apart from inflation, which has occurred in the last 20 years. The pursuer was a fit man of 70 enjoying a full and active life. His injuries were widespread, unpleasant and distressing and had a catastrophic effect on his life. Before his death his days were now spent at home looking out of the window or watching television. He suffered great pain, discomfort and lack of mobility to the end of his life. In these circumstances we are quite unable to conclude that the Sheriff's award for solatium was unreasonable or plainly excessive.
32. We will accordingly refuse the appeal and adhere to the interlocutors of the Sheriff and the Sheriff Principal.