Scottish Court of Session Decisions

Robson v. Glasgow City Council [2003] ScotCS 29 (7 February 2003)

OUTER HOUSE, COURT OF SESSION
A2067/00	OPINION OF LORD MENZIES in the cause JEFFREY ROBSON Pursuer; against GLASGOW CITY COUNCIL Defenders:   ________________

 

 

 

Pursuer: Hofford; Digby Brown, S.S.C.

Defenders: Kelly; E. Bain, City of Edinburgh Council for Glasgow City Council

7 February 2003

1. Introduction

1. The pursuer sustained injury as a result of an accident on 4 August 1997 while he was working as a driver with the defenders' cleansing department. At that time he was employed driving a Street King road sweeping vehicle. This vehicle was fitted with two rotating brushes at the front, which directed debris on the roadway or pavement towards a suction nozzle under the driver's cab, situated at about ground level. A powerful vacuum at the rear of the vehicle sucked debris up through this nozzle, by means of a ribbed plastic pipe and a smooth metal section of pipe into a hopper behind the driver's cab. There was evidence to the effect that on frequent occasions this debris (which might include leaves, twigs, plastic and glass bottles, cans and other items) would become blocked and that blockages might occur at a variety of points between the suction nozzle and the hopper itself. When new, the vehicle was fitted with a tool which could be used to assist in freeing such blockages. It consisted of two metal rods of equal length (on the evidence the length of each section being between 18 inches and 3 feet), one of which had a rubber plunger on the end. This tool was fastened to the outside of the vehicle by clips.
2. The factual basis for the pursuer's case, as averred on record, was that on the day of the accident, and for about two and a half years before that date, this tool and the metal clips were missing from the vehicle; that at a point in Levernside Crescent, Glasgow, while the pursuer was driving the vehicle, he

"noted that the hopper of his vehicle had become blocked with debris. He brought the vehicle to a halt and raised the hopper. The entry hole into the hopper was blocked and in order to reach the blockage, the pursuer stood up on the water tank at the side of the vehicle. He reached up into the hopper and attempted to pull the debris clear. ... as he pulled, the debris suddenly came free in his hand and the pursuer overbalanced, falling from the side of the vehicle to the ground."

3. There were no eye witnesses to this accident. There was evidence about what the pursuer told others regarding the circumstances of this accident at various points later that day, but the only evidence about the circumstances of the accident came from the pursuer himself. The central issue in the case was the credibility and reliability of the pursuer's evidence. It was accepted by counsel for the pursuer that if I was not satisfied that the pursuer was a credible and reliable witness there was not sufficient evidence to enable me to grant decree in his favour. The defenders made a forceful attack on the pursuer's credibility and reliability on a number of grounds. I therefore consider first the evidence as to the circumstances of the accident, and the credibility and reliability of the pursuer.

2. The circumstances of the accident, and the credibility and reliability of the pursuer.

4. The pursuer gave evidence initially that the accident occurred on Levernside Road, but accepted in cross-examination that he had confused the address and that it occurred in Levernside Crescent, approximately 150 to 200 yards from the Pollok Depot where he was based. He was driving the Street King along Levernside Crescent towards the Pollok Depot, on the left side of the road shown in photograph 2 of number 7/16 of process, and close to the kerb and towards the camera in photograph 3 of number 7/16 of process. At a point close to the word "railing" on the sketch plan number 7/15 of process he noticed that there was a blockage in the suction system of the Street King. This was obvious because a trail of debris was left behind the vehicle. This was an occurrence which happened up to three or four times every day. In order to clear the blockage he pulled a lever in the cab which released the hopper and caused it to pivot on its rear end, so that the front of the hopper lifted in an arc. The hole in the front of the hopper which connected to the suction tube was of a diameter of about one to one and a half feet. Once this hole had cleared the top of the cab roof of the Street King the pursuer could see that this was where the blockage had occurred. The pursuer could see that there was debris blocking this hole. He did not know what this debris was, although in cross-examination he expressed the opinion that it was part of an umbrella which had been sucked up and jammed the hole. Having raised the hopper so that the hole was above the roof of the cab, the pursuer said that he got out of the cab and took the side off the rear part of the vehicle to get at the hopper. He climbed onto a ledge at the side of the vehicle which was approximately 2 feet above ground level and was level with the water tank at the bottom of the hopper. He put his left hand on the cabin and used his non-dominant right hand to stretch up to the hole and pull at the debris which was blocking it. He maintained that this was the only way of clearing such a blockage, that this was the method which all the drivers used, that he had never been instructed not to stand on or climb on the vehicle and that he had never been instructed to return to the depot in order to clear such blockages. As he was pulling at the blockage with his right hand he felt himself slipping off the vehicle, and remembers falling back on to a railing beside the road. When pressed about this in cross-examination he repeated that he had slipped off the vehicle. He then said that he fell off. He thought that he lost his balance - "I kind of slipped and fell back". He accepted that he could have missed his footing, and reiterated that he slipped.
5. Having fallen and hurt his thumb while doing so, the pursuer got back into the vehicle and drove it the short distance to the Pollok Depot. He then spoke to the yard man, John Boyle, who was in the depot, and told him that he had been cleaning the Speed King and slipped off. Another employee called Brady came into the depot and the pursuer said that he told Mr Brady the same version of events. Approximately ten minutes later, in response to a telephone call advising him of the pursuer's accident, the pursuer's supervisor, Thomas McKean, arrived at the depot, and the pursuer said that he told Mr McKean the same version of events, namely that he had slipped off the Speed King, and that the hopper was blocked.
6. I did not find the pursuer to be a credible or reliable witness. There were many factors which caused me to form the view that I could not rely on his evidence. I list these (although not in any order of importance) as follows:-

(a) The pursuer's version of how the accident occurred has not remained constant. In particular, the pursuer has not always adhered to the version of events averred on Record and quoted above, in which it is averred that he stood on the water tank at the side of the vehicle and as he pulled at the debris the debris came free and he overbalanced, falling from the vehicle to the ground. In the accident book entry which was completed by the pursuer's supervisor, Thomas McKean, on the same day as the accident itself, it is noted that he "apparently tripped over some branches that were in the path of S/King. Taken to Southern General Hospital where it was found that his l/thumb was broken. Operation required". This latter version of events was effectively repeated by Mr McKean in his incident report form dated 5 August 1997, being the day after the accident: "operative stated he tripped over branches at front of S/King. Fell over fence (18 inches) and injured thumb. Taken to Southern General Hospital. Subsequently told thumb was broken. No witnesses". When the pursuer was admitted on the day of the accident to the Southern General Hospital a brief history appears to have been taken from the pursuer as to how he sustained his injury. At page 19 of the hospital records (No.6/6 of process) it is noted that he "fell over backwards, landed on left hand", and at page 23 it is noted that he "fell today while at work. Driver in cleansing department. Fell backwards and landed on left hand". Nowhere was it noted in the hospital records that he fell from an elevated position on a vehicle to the ground, nor that there was any involvement with a fence. On 11 August 1997 Mr McKean completed a different incident report form (No.7/2 of process) which contained the following description of events "employee was unblocking neck of hopper to remove twigs and debris. Lost footing and tripped over barrier. Put hand down to save himself and broke left thumb. Taken to hospital where it was discovered an operation was required. (No witnesses)". Mr McKean also prepared a handwritten memo (No7/19 of process) on 11 August 1997 to explain the discrepancy between the incident report form (No.7/2) and the accident book entry (No.7/1). In evidence the pursuer speculated that the debris which he was clearing may have been part of an umbrella which had jammed - it had a lot of metal stakes, and it was jamming as he pulled it. He later said that he did not know if this was what had caused the blockage or not. His evidence about the precise mechanism of his injury was very vague, and often contradictory - he said that he told Mr McKean that he had slipped off the hopper. He then said that he fell off it. He then said that he thought he had lost his balance. He then said that he kind of slipped and fell back. He could have missed his footing. He slipped. I shall return to the conflict between the evidence of the pursuer and that of Mr McKean below; what may be observed from the above is that where the history of the accident has been reduced to writing - in the accident book, in the incident report forms and Mr McKean's written memo, in the hospital records and in the Closed Record (as amended) - or in the formal setting of evidence in Court, there is no one clear consistent history.

(b) There are several examples of the pursuer not having been truthful, or at least not wholly truthful, in relation to matters other than the circumstances of the accident itself. For example, he maintained strongly in the course of cross-examination that if the Street King vehicle for which he was responsible in 1996 had been poorly maintained in that year, he had never accepted that he was to blame for this state of affairs. Even when he was faced with the departmental memoranda dated 17 April and 27 June 1996 (Nos. 7/20 and 7/21 of process) his initial position was that he had never accepted blame for the poor condition of the vehicle. However, he was eventually driven to concede that he did accept responsibility for the poor maintenance of the vehicle. He explained that he did this in order to get another chance, and because somebody had to "take the rap". This may be so, but it does not detract from the fact that the pursuer did (contrary to his repeated earlier assertions in evidence) accept responsibility for the poor maintenance of the vehicle.

(c) Another example of what appeared to be deliberate untruthfulness was in relation to the difference between his depressive illness or symptoms before the accident and after it. In answer to questions from the Court as to how these differed, the pursuer stated that since the accident he would not go out of his house and did not like crowds. The feelings of panic were the worst part of his post-accident condition, and he suffered panic attacks quite frequently. He stated that before the accident he was "just on a downer" - he did not panic, and could go out quite easily. This position is not borne out by his GP records. On 21 August 1972 his GP noted: "Worries +++ about everything ... even worrying because he is worried. Still has panic problems by day ...". (See page 5 of 7/13 of process). These feelings of anxiety and panic appear to have continued. On 1 February 1993 his GP noted: "Feels v.nervous and panicky. Feels anxious all the time", and on 26 September 1972 he was seen at the Royal Alexandra Infirmary, Paisley he was noted as stating that "he feels he is worrying without cause and gets 'panicky' at times" (See pages 14 and 135 of 7/9 of process). While it may be that some of these earlier symptoms were associated with his condition of sleep paralysis, the pursuer was adamant in his evidence that he never suffered from feelings of panic before the accident.

(d) The histories which the pursuer has given to his various medical advisers have been inconsistent in several material respects. For example, with regard to his consumption of alcohol, he told his GP on 29 February 2000 that he had reduced his drinking to "occasional" and "reasonable" (2 beers), and on 7 March 2000 he told his GP that he was not drinking (see pages 5 and 54 of 7/9 of process). However, he admitted to Dr Craig Melville, a specialist registrar in psychiatry, that he had been drinking a bottle of whisky every night between finishing work and going to bed, in the period from New Year until April 2000 (see page 42 of 7/9). It seems impossible to reconcile the contradiction between these two versions. Interestingly, at about this time it appears that the GP had reservations about the pursuer's truthfulness - on 4 February 2000, in relation to an allegation by the pursuer that he had written a letter to the GP, the doctor noted "? is it a fiction?".

(e) The pursuer gave his history to Mr Bransby-Zachary, consultant orthopaedic surgeon, and this is noted in the report of 19 April 2000 which is No.6/2 of process. The pursuer told Mr Bransby-Zachary that "he is on medication for depression which has only started since his injury in the last few months". Without going into the question of precisely what constitutes depression at this point, it seems to me that the pursuer's position as described to Mr Bransby-Zachary may fairly be described as being economical with the truth. His medical records show that he underwent psychiatric assessment at Dykebar Hospital in September 1974 and again in November 1989. He received further psychiatric advice in March 1993 at the Southern General Hospital, and in February 1997 he was again seen at Dykebar Hospital where it was considered that he had developed a depressive illness. In evidence Dr Alan Fraser, who was an expert psychiatric witness called for the pursuer, expressed the view that the pursuer had a past history of depressive episodes requiring medication. Mr Gary Macpherson, a consultant psychologist called on behalf of the defenders, expressed the view that the pursuer had at least a 30 year history of anxiety of clinical importance, and had been suffering from depressive symptoms and disorder for possibly 10 years or thereabouts, and before the accident in August 1997. I regarded it as being less than wholly truthful for the pursuer to state to Mr Bransby-Zachary that his depression had only started since his injury in the last few months.

7. (f) The pursuer was similarly not wholly truthful when he gave his employment history to Dr Fraser. Dr Fraser in examination in chief stated that he understood from the pursuer that the pursuer was downgraded at work because he could not drive a vehicle because of his injury. In cross examination he repeated this and gave further detail - Dr Fraser said that the pursuer told him that he had been downgraded because he was unable to apply enough pressure to the steering wheel and therefore could not drive a Street King and he also told Dr Fraser about some physical difficulty with changing brushes on the vehicle. The pursuer told Dr Fraser that this was the reason for his changing to manual street sweeping, without the use of a machine. It is clear from the documentation that the pursuer was downgraded for a reason unconnected with the injury to his thumb. Nos. 7/22, 7/23 and 7/24 of process make it clear that he was downgraded and demoted to spare road sweeper as a result of a disciplinary hearing at which he was found guilty of industrial misconduct by not checking oil in the vehicle that he was responsible for. This was confirmed by Mr McKean, and the pursuer accepted this in evidence. (I note in passing that in his evidence Dr Fraser stated that he considered that the pursuer was drinking more than he admits to, and expressed surprise that the pursuer has stopped going to his GP and has not been taken anti-depressant medication).

(g) There were several respects in which Mr Gary Macpherson considered that the pursuer had been misleading or deliberately untruthful in his responses when being examined by Mr Macpherson. These were (a) the pursuer told Mr Macpherson that he had not been sexually intimate with his partner for 3 to 4 months, although his partner confirmed that he had been sexually intimate the previous week and several weeks previously while on holiday in Spain. Mr Macpherson stated in evidence that there could be no confusion about what was meant by sexual intimacy, because when discussing this matter with the pursuer and his partner Mary Kane the references had been explicitly to sexual intercourse. (b) The pursuer told Mr Macpherson that he consumed no more than 3 to 4 pints of beer over a typical weekend and remained abstinent during the week. Mr Macpherson noted that "I found his account difficult to reconcile with the account provided by his partner, Mrs Mary Kane, who told me that he visits public houses and consumes alcohol on a daily basis .... She explained that his use of alcohol had a destabilising effect on his mood". The pursuer explained in evidence that Mrs Kane had misunderstood one incident in which she thought that he had consumed 2 litres of spirits over the preceding weekend and a total of 3 litres of spirits over the course of the preceding week. Even if this was a misunderstanding, it does not explain the inconsistency between the pursuer's account of his typical drinking and the account of his partner. (c) The pursuer initially told Mr Macpherson that he had not left his house for some time. However, he thereafter told Mr Macpherson that he continued to play bowls, and that he socialised at his local social club at weekends, and his partner Mary Kane told Mr Macpherson that he visits public houses on a regular basis. (d) The pursuer told Mr Macpherson initially that he was unable to drive by reason of disability. Later he stated that he owned a car and used the vehicle to visit shops approximately two times per week. The pursuer stated that he had taken a taxi to the clinic for Mr Macpherson's assessment. However, Mrs Kane confirmed that the pursuer had in fact driven to the clinic for the appointment. This matter was aired with the pursuer in his evidence, and the pursuer accepted that he told Mr Macpherson a lie about going to see him by taxi, and also that he did not drive when in fact he did. When I asked him why he had lied to Mr Macpherson the pursuer told me that he became "a bit uptight" and panicked when Mr Macpherson asked him the question. He was unable to give an adequate explanation as to why he had lied to Mr Macpherson.

8. (h) With regard to reliability, both Dr Fraser and Mr Macpherson formed a poor impression of the pursuer's ability to give a history. Dr Fraser noted (at page 4 of 6/3 of process) that "he gave a very poor history. This appeared to be a consequence of anxiety and poor concentration rather than deliberate evasion". Mr Macpherson observed at page 2 of 7/14 of process that "he appeared to be a rather unreliable historian at times and attempted in my view to misrepresent his overall functioning". The opinion was expressed that the pursuer's heavy consumption of alcohol at times and his depression may each have had an adverse effect on the pursuer's memory. Indeed, Mr Hofford in his submissions accepted that this was a criticism which might be made of the pursuer, but emphasised that the pursuer's account was straightforward and was not departed from under cross-examination.
9. (i) There was a stark conflict of evidence between the pursuer and Thomas McKean. Having regard to the demeanour of both the pursuer and Mr McKean, and to the other factors referred to, I considered that Mr McKean was a credible and reliable witness and I preferred his evidence to that of the pursuer. His recollection of what the pursuer told him on the day of the accident was clear, and much more specific than the pursuer's recollection. Moreover, Mr McKean took a written note of what the pursuer told him shortly after the accident - the report in the accident book (No.7/1 of process) was completed on the day of the accident, and the incident report form (No.7/18 of process) was completed on the following day. It was part of Mr McKean's duties to take an accurate note in these circumstances, and I see no reason to think that his note was inaccurate. None of the other witnesses who spoke to what the pursuer told them took any written note of what he said. It was suggested in cross examination of Mr McKean that he was personally motivated to give a false account in the accident book and the incident report form because he knew that the two metal clips were missing from the Street King and that he ought to have arranged for replacements. I did not consider that this suggestion had any substance. It is not foreshadowed in any averments on behalf of the pursuer in the Closed Record, although the substance of Mr McKean's position was fully averred in the defences. Indeed, the pursuer in evidence never suggested that he had reported the absence of this tool to Mr McKean, nor that Mr McKean was aware of its absence. I formed the impression that Mr McKean was being truthful, and that he had "no axe to grind" in this matter.

Mr McKean was clear in his recollection that when he saw the pursuer in the depot shortly after the accident he asked the pursuer what had happened and the pursuer had said that there were some twigs or branches at the front of the machine and he had gone round to the front of the machine to clear them away, had tripped over some twigs or branches that were at the front of the machine and had fallen over a fence which was about 18 inches high. Mr McKean was clear in his recollection that the pursuer said nothing about the Street King being blocked at that time, and was adamant that the entry in the accident book and the incident report form (7/18 of process) accurately reflected what the pursuer told him on the day of the accident. He went on to state that the pursuer came into the depot with a doctor's certificate on 11 August 1997 and Mr McKean had a conversation with the pursuer in his office on that date. Mr McKean stated that he showed the pursuer the entry in the accident book dated 4 August 1997 and it was at that time that the pursuer said that this was not how the accident happened, but rather that there had been a blockage in the Street King and he had raised the hopper and climbed on the side of the machine to unblock it. It was because the pursuer told him this that Mr McKean completed a further incident report form at that time (No.7/2 of process), together with a handwritten note to explain why there was a discrepancy (No.7/19 of process). I considered this to be a logical and credible explanation for the various productions which were before me on this point.

By contrast, although the pursuer accepted in evidence that he saw Mr McKean some 4 or 5 days after the accident, he could not remember telling him anything about the accident that day. He denied looking at the entry in the accident book which Mr McKean had made, and was quite sure that Mr McKean did not show it to him. He was sure that Mr McKean never showed him a version of the accident which was different from the pursuer's version, and he could not remember whether he gave any account of what had happened when he spoke to Mr McKean some 4 or 5 days after the accident.

As I have indicated, I preferred the evidence of Mr McKean to that of the pursuer. The pursuer did receive some support from John Boyle and James Brady. Mr Boyle was a labourer who was working as the yardman in the Pollok Depot on the day of the accident. He did not have much to do with Street Kings. He was the first person that the pursuer saw after the accident. Mr Boyle could not remember the pursuer's exact words, but his recollection was that the pursuer told him that he was clearing a blockage from the Street King - possibly twigs - and in removing this he fell back. He did not say where the blockage was, and Mr Boyle was unable to infer where it might have been because of his lack of familiarity with Street Kings. He did not write anything down at the time, and he contacted Mr McKean because it was Mr McKean's job to take down the official account of what happened. James Brady was another employee of the defenders who came into the Pollok Depot shortly after the accident. His recollection was that the pursuer told him that he had climbed up to clear a blockage in the hopper of the Street King; he was standing up on the side of the Street King when he fell backwards and put his hand out to save himself. He had a vague recollection that there was a discussion that the pursuer may have tripped over branches, but he could not remember the details - he thought that this may have been a possibility raised by Mr McKean. However, he said that it was so long ago that he found it hard to remember what was said. Under cross examination he accepted that the pursuer could have said something about going round the side of the machine - he thought that this was possible, but he was not 100% sure. Mr Brady himself was tending to the pursuer's injured thumb, and was principally paying attention to this task - he was talking with the pursuer to take the pursuer's mind off what he was doing. Both Mr Boyle and Mr Brady accepted that they did not have clear recollections of what the pursuer said. I did not find their evidence to be sufficiently reliable in support of the pursuer to offset the evidence of Mr McKean. Evidence was also led from the pursuer's two sons, Steven Robson and Jeffrey Robson. Steven Robson said that on the day of the accident Mr McKean drove the pursuer to their house, and then drove Steven Robson to the depot to collect the pursuer's car. In the course of this latter journey Steven Robson said that Mr McKean told him that his father had been clearing his Street King and fell off it. He said that this is what his father told him later. Jeffrey Robson in turn heard of the accident through Steven Robson, and that Steven told him that their father had been cleaning a machine at work and damaged his thumb when he fell off it. None of this evidence caused me to prefer the evidence of the pursuer to that of Thomas McKean.

10. (j) Finally, I found the pursuer's version of how the accident happened inherently improbable. The point at which the pursuer maintains that the blockage occurred was the hole towards the front top end of the hopper. There was no particular reason why debris should block at this point - the front side of the hopper was itself only the thickness of the material from which it was constructed, and inside the hopper there was no ledge or other constriction which might cause a blockage to occur at that point. Mr James Garvie was a contract supervisor with Schmidt (UK), the company charged with the maintenance and servicing of the defenders' 43 Street King machines. He had been employed by Schmidt for the last 8 or 9 years, first as an engineer and latterly as contract supervisor. He gave evidence that the hole in the front of the hopper was the same diameter as the suction tube itself - there was no narrowing of the aperture which might result in a blockage. He had seen many blockages of Street Kings, but had never seen a blockage at the hole at the entrance to the hopper. In his experience, if there is going to be a blockage this happens in the ribbed tube. There was nothing for debris to sit on at the aperture itself - it was just an open hole. If anything did wedge there, he considered that it would fall when the hopper was lifted up. The suction tube is ribbed for much of its length, and then for the last 8 or 10 inches before the hopper aperture the tube is made of smooth metal. In his experience blockages always occurred either in the ribbed section of the tube, or where the ribbed tube joins the smooth metal, some 8 to 10 inches below the hopper hole. I found this evidence persuasive.
11. In light of the above considerations, I formed the view that the pursuer was neither a credible nor reliable witness. Apart from the evidence of the pursuer, there was no other evidence about the circumstances of the accident. Standing my view as to the credibility and reliability of the pursuer, there is no evidence properly before me to enable me to find the circumstances of the pursuer's accident proved. It follows that the pursuer's action must fail.

3. If the pursuer had established the circumstances of the accident as averred by him, was there any breach of a duty of care or statutory duty by the defenders, and if so, did this cause or contribute to the accident?

12. The pursuer makes two common law cases of fault against the defenders, namely failure to provide safe work equipment and failure to provide a safe system of work, and a statutory case of breach of regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992. With regard to the duty to provide safe work equipment, the pursuer avers that it was the defenders' duty to take reasonable care to ensure that the appropriate tool for removing such blockages was fitted to the vehicle at the material time, and that the defenders failed in this duty and so caused the accident. The breach of regulation 6 of the 1992 Regulations rests on an averment that the tool provided for removing blockages in the hopper was missing from the vehicle, thereby rendering the Street King vehicle not maintained in an efficient state with regard to safety or in efficient working order. I had strong reservations as to whether, on the assumption that the accident occurred as averred by the pursuer, this breach of common law duty and breach of statutory duty was established on the evidence, and if so, whether it was causally linked to the accident. There was nothing special about the tool in question, at least in the context of removing debris blocked at the hole at the front of the hopper. All it amounted to, for this purpose, was a pole being somewhere between 3ft and 6ft long when screwed together. It was flexible and the plunger at one end was only used for clearing blockages in the suction tube. I formed the view that the purpose of providing this tool attached to the Street King was to clear blockages in the tube, and not to free debris from the hole in the hopper (if indeed debris ever became blocked there). For the latter purpose there was nothing about the tool which rendered it more effective in clearing debris from the hole than a broom handle or brush pole. Alexander Tabor was a chargehand with the defenders, and had driven Street Kings for them from 1988 until April 2002, and still did so occasionally. He had worked from several depots, including in August 1997 the Pollok Depot where the pursuer worked. He agreed that the tool which was provided was not very useful - he described it as "a waste of time", it was pliable and tended to bend, and he preferred to use a brush pole. He stated that all the regular drivers of Street Kings would have a brush pole with them in the Street King in order to clear blockages. Mr Tabor's evidence was consistent with that of Joseph O'Rourke, who was no longer employed by the defenders but had been employed by them from 1977 until 1999, starting as a road sweeper and ending as a supervisor. He had worked in the Pollok Depot from 1986 to 1994. He stated that he was unaware that the Street King ever came with a tool of this kind, but the drivers all used to use a brush pole or a piece of wood to clear blockages. The pursuer accepted in cross-examination that one could use a brush handle or something like that to clear a blockage at this point, and indeed he said that it was his practice to do this. He said that he mainly did this from the cab of the Street King - he would open the cab door, kneel and prod the blocked debris with a brush, because a brush has a longer handle than the tool. Hugh Wright, one of the defenders' area managers, confirmed that Street King drivers tended to use a brush pole or a tool with an iron bar in order to clear blockages. Neither he nor Thomas McKean were aware of any complaints about the lack of a tool to clear blockages. John Boyle, the yard man at the Pollok Depot confirmed that it was his responsibility to give out tools to drivers who asked for them, that he frequently gave brushes, shovels, rakes, litter pickers and brooms with long handles to drivers, that there were plenty of these in the depot and if the pursuer had asked for one Mr Boyle would certainly have given him one.
13. Moreover, there was evidence that if a blockage occurred where the pursuer avers that it occurred on the day of the accident, this was something which, if it was not cleared by high pressure hose, required to be cleared by hand. The pursuer stated in cross-examination that the only way of unblocking this blockage was by hand. Mr Tabor appeared to agree with this - although he kept a brush pole with him in his Street King, if there was a blockage at the hole in the hopper he stated that he would pull it out.
14. In light of this evidence I was not persuaded that the defenders were in breach of their common law duty to provide safe work equipment or in breach of regulation 6 of the 1992 Regulations. The preponderance of evidence was to the effect that there were plenty of brush poles or the equivalent in the Pollok Depot, and that these were preferable to the original tools provided. I concluded that there was no breach of any duty by the defenders in this regard. In any event, even if the pursuer had the tool (or a brush pole or equivalent) with him, on his own evidence the only way that he considered he could unblock this debris was by hand, so it must be unlikely that he would have done anything different. I consider that the case based on failure to provide the tool (both at common law and under statute) would have failed even if I had accepted the pursuer's account of the accident.
15. With regard to the pursuer's case of unsafe system, this rests on an averment that it was the defenders' duty to take reasonable care to instruct employees not to attempt to remove such blockages by hand. The pursuer's position in evidence was that he had attended a two day training course before he started to drive a Street King, and on 4 December 1996 he had attended an additional Street King course. He denied that he was ever told in training, or at any other time, that he should not stand on the Street King vehicle or climb on it, and he denied that he was ever instructed to return to the depot to clear blockages. This did not accord with the evidence of Thomas McKean or Hugh Wright. Mr Wright stated that it was part of the training which the pursuer received that at no time should an operative climb on top of a Street King vehicle. Mr Wright stated that this was emphasised during the training course, and the defenders would never ask a driver to climb on top of a vehicle. Thomas McKean had also attended a Street King course and confirmed that it was part of that course that drivers were told that they were not supposed to climb up on their vehicle. He stated that all those attending the course were told that there were no hand holds or foot holds on the vehicle, that it was a danger to climb on the vehicle, and they were told that it was not to be done. Moreover, both Mr McKean and Mr Wright stated that drivers were instructed that if a Street King became blocked with debris the driver should return to the depot and clear the blockage using a power hose at the depot. Mr O'Rourke stated that if a driver found that debris had become blocked in a Street King he would generally return to the depot and clear the blockage using a hose. John Boyle confirmed that drivers did frequently return to the Pollok Depot to use the high pressure hose to clear blockages, and there was no problem in their doing so. Although the high pressure hose was not always working, there was a fire hose which always worked and this was suitable for clearing debris. The accident happened only some 40 or 50 yards from the Pollok Depot, and there was no reason why the pursuer should not return to the depot to clear the blockage there.
16. Again I was not persuaded by the pursuer's evidence that he had received no instructions in these respects. On the basis of all the evidence I was satisfied that the defenders had indeed instituted a safe system of working in this regard whereby drivers were instructed not to climb on their Street King vehicles, and were instructed to return to the depot in order to clear the blocked debris by means of a high pressure hose or fire hose. This system appears to have been operated effectively, and there was no evidence before me to the effect that other employees had sustained injuries as a result of falling from Street King vehicles. Particularly as the accident happened so close to the depot, I see no reason for the pursuer to have departed from the normal system. In these circumstances the pursuer's case based on unsafe system fails as well.
17. Accordingly, even if the pursuer had established that the accident occurred as he averred on record, I would not have been satisfied that liability had been made out against the defenders.

4. Damages

18. The pursuer claimed that as a result of the accident he has sustained both physical and depressive symptoms. With regard to his physical symptoms, expert medical evidence was led from two consultant orthopaedic surgeons, namely Mr Mark Bransby-Zachary who treated the pursuer, and Mr Geoffrey Hooper who examined him on behalf of the defenders. There was no dispute that the pursuer sustained a comminuted fracture of the base of the left thumb metacarpal involving the joint. He underwent surgery at the Southern General Hospital, Glasgow on 4 August 1997 for reduction of this displaced fracture and stabilising by the insertion of two wires. His left hand was his dominant hand. He was allowed home on the following day. The wires were removed on 4 September and he underwent physiotherapy. When he was seen on 11 December 1997 his thumb had healed well and he was discharged. Mr Bransby-Zachary, who was the consultant in charge of his treatment, gave evidence that at about that time, or at the latest within a few weeks thereafter, he should have been able to return to work, and this was about an average recovery time. The pursuer returned to the clinic on 2 February 1998 having sustained a further minor injury to his left thumb which, as a result of the weakening effect of the initial fracture, caused a second fracture of the distal phalanx of the left thumb. Mr Hooper agreed that the first injury meant that the pursuer was more predisposed to further injury to this thumb. The pursuer returned to work in about July 1998; both consultant orthopaedic surgeons agreed that this was not an unreasonable period off work having regard to the combination of the two fractures. There was some disagreement as to how to categorise the extent of any osteoarthritic changes in the pursuer's thumb as a result of the accident - Mr Hooper was of the view that there were no major features of osteoarthritis change, whereas Mr Bransby-Zachary described the osteoarthritic change as significant but not gross. However, such dispute as there was appeared to be relatively minor on the basis of the evidence given in Court - Mr Hooper accepted that there were arthritic changes, but assessed these as minor and not advanced. On the basis of all the evidence before me I took the view that there was arthritic degeneration in the thumb, but that the features of this degeneration as at the date of the most recent examination of the pursuer in September 2002 could not be described as major or gross, although it was significant. Certainly the pursuer told Mr Bransby-Zachary in September 2002 that he did not want a further operation on his thumb.
19. With regard to the effect of the thumb injury on the pursuer's ability to work, it appears that he was off work until about July 1998. He resumed work as a Street King driver, but on 29 October 1998 he was demoted to spare road sweeper for disciplinary reasons unconnected with his injuries. The effect of this was that he no longer drove a vehicle, but became a manual road sweeper. He continued to work in this capacity until January 2000, when he complained that the pain in his thumb was increasing and he could no longer work. He stopped working in about January 2000 and was retired on the grounds of ill health with effect from 23 February 2001. Mr Hooper accepted that periods of recovery for injuries such as the pursuer's were quite variable, but he stated that the pursuer's was the longest period of recovery that he had encountered in any person he had seen with this type of injury. He took the view that when the pursuer suffered pain in the winter of 1999/2000 he should have taken two or three weeks off work, changed his painkiller and then returned to work. Mr Hooper was of the opinion that the pursuer could return to work either as a driver or as a manual road sweeper, or indeed any occupation for which he was qualified, and that his physical condition arising from the thumb injury would not prevent him from any form of work. Mr Bransby-Zachary agreed that the pursuer's physical condition would not prevent him from returning to a driving job or activity such as a yardman, but was of the opinion that he would not be able to perform heavy manual work.
20. I concluded that the pursuer was disabled by the physical consequences of his thumb injury from working until July 1998 at the latest, but that these symptoms did not prevent him from working in any capacity after that date.
21. With regard to the pursuer's depressive illness, evidence was led on behalf of the pursuer from Dr Alan Fraser, a consultant general psychiatrist at the Southern General Hospital, Glasgow, and on behalf of the defenders from Mr Gary McPherson, a chartered psychologist and consultant at the State Hospital at Carstairs. Dr Fraser prepared two reports dated 14 February 2001 and 23 July 2002 (numbers 6/3 and 6/4 of process). He was not responsible for any psychiatric treatment of the pursuer - his only involvement was as an expert witness. He was of the opinion that the pursuer was suffering from a depressive illness of moderate severity, that his depression was related to the persistence of pain and disability affecting his left hand, that the most probable precipitating cause of his depression was his inability to do his job, and that the prognosis for improvement in the pursuer's psychological symptoms was increasingly poor. Mr McPherson prepared a psychological report regarding the pursuer dated 2 October 2002 (number 7/14 of process). His opinion in evidence was broadly as contained in his report. He considered that the pursuer has had at least a 30 year history of anxiety of clinical importance, a long-standing history of alcohol dependence, a 20 year history of benzodiazepine dependence, and depressive symptoms and disorder of possibly 10 years duration, and starting before the accident in August 1997. He did not consider that the pursuer's present symptoms amounted to a clinically significant psychological condition and it was his view that the accident on 4 August 1997 has had no significant effect on the pursuer's psychological functioning.
22. I preferred the evidence of Mr McPherson to that of Dr Fraser. Dr Fraser appeared to have proceeded, more or less uncritically, on the basis of the history which the pursuer gave him. It was apparent in the course of Dr Fraser's evidence that the history given by the pursuer had been misleading in several respects. Dr Fraser appeared to accept the pursuer's narrative of his symptoms, as well as his history of employment, without any real critical questioning as to whether this was true or not, although he stated in evidence that the pursuer frequently gave completely inappropriate answers to questions which he was asked. He thought that this seemed to be due to lack of concentration on the pursuer's part, rather than any deliberate attempt to mislead. He attributed the pursuer's alcohol consumption to an attempt at self-medication. He expressed the opinion that any depressive illness which the pursuer suffered in the early part of 1997 had cleared up quickly and was therefore not significant, although the pursuer was continuing to take medication until the date of the accident. By contrast Mr McPherson adopted a more critical and more sceptical approach to the pursuer's history which, in light of my decision on credibility and reliability of the pursuer, seemed to me to be well justified. His opinion about the pursuer's pre-accident depressive condition and his consumption of alcohol appeared to me to be more consistent with the medical records than was Dr Fraser's opinion. He elicited several inconsistencies from the pursuer which he commented upon in his report and in his evidence, and which I have referred to above. Having regard to all of the evidence before me, I accepted Mr McPherson's opinion that the accident on 4 August 1997 has had no significant effect on the pursuer's psychological functioning, and that such depressive symptoms as the pursuer has suffered from have been manifestations of the depressive disorder from which he had suffered for some years before the accident.
23. Counsel for the pursuer urged me to make an award of £20,000 by way of solatium. He suggested that the physical consequences of the pursuer's thumb injury fell between a moderate and a serious thumb injury in the Judicial Studies Board Guidelines, and suggested that it merited an award of about £7,500. He submitted that the psychiatric consequences of the accident were moderately severe and justified an award of solatium of £12,500. Interest at 4% on half of the above figures added just over £2,000 to the total of £20,000. Counsel for the defenders suggested that this was properly within the category of a minor thumb injury in the Judicial Studies Board Guidelines. He also referred me to Beck v United Closures and Plastics plc 2002 S.L.T. 1299 and Martin v Scottish Coal Co Limited 1998 GWD 40-2075.
24. The injury to the pursuer's thumb does not in my view fall within the category of serious or moderate in the guidelines. It generally falls within the category of minor injury, although it was rather worse than that sustained in Beck. I would have awarded solatium of £3,000. All of this would have been attributable to the past; the interest would have run at 4% on the whole of this figure to the date of decree.
25. With regard to loss of earnings, on the evidence the period of work attributable to the thumb injury was accepted by both consultants as being from the date of the accident until July 1998. Loss of earnings for this period would have been £2,430. Interest would fall to be added to this at 4% per annum until decree.
26. In view of my decision as to the duration of the pursuer's physical symptoms, and the evidence of Mr McPherson about his psychological complaints, I would have made no award of future wage loss. A claim was made for services rendered to the pursuer by his sons Jeffrey and Stephen Robson in terms of Section 8 of the Administration of Justice Act 1982. In view of my decision regarding psychological symptoms, clearly any award in this regard would fall to be considerably lower than that suggested by the pursuer's counsel. However, there was evidence that the pursuer's sons did provide some services to him in the months following the accident, such as going shopping for him and performing routine household chores which he could not manage. I would have made an award of £300 under this head.

5. Conclusion

27. For the reasons which I have given I am not satisfied that the pursuer has suffered loss, injury and damage through the negligence or breach of statutory duty by the defenders. Accordingly I sustain the second and third pleas-in-law for the defenders, repel the second plea-in-law for the pursuer and grant absolvitor.