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Cite as: [2003] ScotCS 61

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OUTER HOUSE, COURT OF SESSION

OPINION OF LADY PATON

in the cause

MICHAEL DELANEY

Pursuer;

against

McGREGOR CONSTRUCTION (HIGHLANDS) LIMITED

Defenders:

________________

Pursuer: P. Lloyd, Advocate; The Anderson Partnership

Defenders: Guinnane, Advocate; Simpson & Marwick, W.S.

7 March 2003

Pursuer injured while unloading lorry

On Friday 5 November 1999, the pursuer (then aged 31; date of birth 8 June 1968) was injured in the course of his employment while assisting with the unloading of long steel rods from a lorry. He suffered a crushing injury to his right leg, with fractures of the tibia and fibula. He seeks damages, averring negligence on the part of his employers.

Proof before answer

At a proof before answer, the pursuer (then aged 34) gave evidence. Evidence was also led from his wife, Mrs Delaney, a learning support auxiliary (aged 38); a consultant orthopaedic surgeon Kevin Baird (aged 42); the proprietor of the Argyll Hotel, Inverary, Derek Classe (aged 54); a professor of orthopaedic trauma and consultant in orthopaedic surgery, Professor Court-Brown (aged 54); the pursuer's general practitioner, Dr Tangney (aged 42); and a health and safety consultant Walter Cameron (aged 71). A joint minute was also lodged.

On behalf of the defenders, evidence was led from their building site agent Laurence Ryan (aged 59, with 34 years experience in the construction industry), and from a consultant orthopaedic surgeon, Quentin Cox (aged 46). By agreement between counsel, Mr Ryan's evidence was interposed in the course of the pursuer's case.

I found the pursuer an entirely credible and generally reliable witness. I had no reason to doubt the credibility of other witnesses, although Mr Ryan's recollection of events on 5 November 1999 seemed to me to have faded to some extent. In general, whenever there was a discrepancy between Mr Ryan's evidence and that of the pursuer, I preferred the pursuer's evidence. On one particular matter, namely the approximate diameter of the bundle of steel rods, I considered Mr Ryan's estimate (of about 20 rods tied together with a diameter of about one foot) to be clearer and more accurate that the pursuer's estimate of two feet, later amended to one foot.

Pursuer's work experience

The pursuer left school at the age of 15. He trained as a plumber with Donald Cameron for about one and a half years, but did not complete his training. In 1985 he joined the Queen's Own Highlanders Infantry, where he remained for about four years, attaining the rank of private. He developed no particular skills during that period. On leaving the army, he worked as an electrician's mate for a local contractor, Mr McDonald, from 1989 to 1991. In the early 1990s he continued to work as an electrician's mate for other electrical contractors, for example, West Coast Electrical. He pulled cables over ceilings and under floors, fitted sockets and lights, and carried out any other work delegated to him by trained electricians. The work often involved kneeling and climbing steps. In 1994 the pursuer joined the defenders' company as a labourer. After about one year, he left the defenders and returned to work as an electrician's mate. In 1997 he again joined the defenders as a ganger-labourer. His job involved general labouring work, and some supervision of other labourers. He was often second-in-command on site, and if the site agent Laurence Ryan had to visit another site, the pursuer would be regarded as in charge during Mr Ryan's absence. While employed, the pursuer received some training. He attended a safety awareness course, a course on abrasive wheels, a scaffolding course, and a road surfaces course. He held a scaffolding qualification, and had been trained in unloading scaffolding materials.

Circumstances of the accident

In November 1999, the pursuer was working on the defenders' site at Unit 41, Ben Nevis Industrial Estate, Fort William. Factory units were being constructed. The work was at foundation level. According to Mr Ryan, the site engineers had assessed the ground as having a tendency to subside. They had accordingly specified particularly long steel rods to make ring beams as reinforcement for the concrete foundations. Mr Ryan ordered the specified steel rods from British Steel. His recollection was that he ordered rods measuring some 14 metres and 13 metres in length. He gave British Steel a date by which he required the rods, but did not know precisely when they were going to be delivered on site.

Mr Ryan had experience of such steel rods. He stated that they were commonly used for foundations, although a length of 14 metres was longer than usual. He had often seen bundles of steel rods being unloaded at sites. Evidence from Mr Ryan and from the pursuer's health and safety expert Mr Cameron established that such steel rods were thin, long, and flexible. They were often bound together in bundles of about twenty. A bundle of twenty was very heavy, weighing about a tonne, yet remaining very flexible. The safest method of unloading such a bundle of rods from a flatbed lorry was by crane, with slings positioned along the length of the rods. In that way, the flexible heavy load could be lifted and deposited in a controlled way. It was not possible simply to insert the forks of a forklift truck under the centre of the rods and lift them off the lorry: the rods were so flexible that the forks would lift up only a small part of the bundle, leaving massive lengths of rods on either side of the forks, lying like a dead weight on the lorry.

Evidence from the pursuer and Mr Ryan established that the pursuer had never seen or dealt with a load of long steel rods such as that ordered by Mr Ryan. The pursuer had no training in or instructions how to deal with such a load. He had experience of unloading items on pallets lifted off by the forks of a forklift truck. He also had experience of unloading by hand plasterboard, loose materials, and reinforcing sheets of wire mesh, measuring about 8 metres by 4 metres, used for reinforcement of concrete foundations. But the pursuer had no experience of loading or unloading bundles of long, flexible steel rods, weighing about a tonne.

On Friday 5 November 1999, the pursuer had to visit the court house in Fort William in connection with work which the defenders had carried out there. During his absence, a British Steel articulated flatbed lorry arrived at the Unit 41 site, carrying steel angles, squares, and also the long steel rods ordered by Mr Ryan. According to Mr Ryan, the lorry arrived at about 14.40 p.m.

Mr Ryan's recollection was that the pursuer had been on site when the lorry arrived. He also thought that the lorry carried two bundles of long steel rods. However the pursuer's evidence was that he had been absent from the site when the lorry arrived, and that on his return from the Fort William court house he had found the lorry on site, in the process of being unloaded by a labourer Mr McInnes (who had 15 years experience with the defenders) and a driver of a JCB fitted with forklifts. Also, according to the pursuer, the lorry carried only one bundle of long steel rods. For the reason given in paragraph [4] above, I preferred the pursuer's evidence, and I accept that the lorry arrived in the pursuer's absence from site, carrying various loads, but only one bundle of long steel rods.

In relation to the diameter of the bundle of steel rods, the pursuer in his evidence in chief estimated the diameter to be about two feet, but in re-examination changed his estimate to one foot. Mr Ryan, in his evidence, estimated the diameter to be about one foot. On this matter, I considered Mr Ryan's estimate to be clearer and more accurate than the pursuer's.

The lorry-driver reported to Mr Ryan. Mr Ryan remembered seeing the lorry, and knowing that Mr McInnes, a JCB driver, and the pursuer, were working at unloading the lorry. At some stage, he went back to his office.

Mr Ryan accepted that he had given the pursuer no instructions about the steel rods. In evidence he said something along the lines of: "I left it to himself. We're all trained for unloading. It's something we do all the time. I didn't think I'd have to speak to Michael. He's experienced. If I had not been there, and the lorry came in, he'd have to do it anyway - he'd have to organise it." Mr Ryan described the pursuer as an experienced ganger, a very competent person, someone whom he was happy to leave on site on his own. He later commented in cross-examination that someone who had been on a building site for a number of years should be competent at what he was doing. However he accepted that the pursuer might never have unloaded long flexible steel rods, or seen such rods being unloaded.

The identity of the JCB driver did not emerge in the course of the proof. The pursuer thought that the driver and the JCB had been hired from another contractor. The labourer Mr McInnes was not led in evidence by either side.

The pursuer's evidence, which I accept, was that on finding the lorry in the process of being unloaded, he assisted. All the steel angles and squares were removed from the lorry without difficulty. At that point, the only load remaining was the heavy bundle of long steel rods. There was no suitable crane with slings available on site. There was no crane or lifting device fixed to the back of the British Steel lorry. The defenders' Hiab lorry, which had a crane at the back, was too small to deal with the load. In the circumstances, an alternative method was adopted to unload the steel rods. The tailgate was removed from the lorry. The JCB driver drove, with the forks extended, towards the side of the lorry, aiming to insert the forks in the middle of the rods as they lay on the flatbed. Mr McInnes stood on the ground, watching the JCB, and warning the driver if he was on the point of colliding with the lorry. The pursuer stood on the lorry flatbed, guiding the driver when inserting the forks. Once the forks were inserted beneath the centre of the rods, the JCB driver raised the forks. The lorry driver was then instructed by the pursuer to move forward a short distance. The effect of the manoeuvre was that the end length of rods slid off the lorry's rear onto the ground. The JCB driver then had to tip and shake his forks in order to get the rods off the forks.

Mr Ryan accepted that he had probably been present when the JCB method of unloading the steel rods commenced. He stated that using an excavator such as a JCB to "slide" long flexible steel rods off a lorry was a common method used by the defenders' employees. He himself had often been involved in such a procedure. He had not foreseen any problems. Had he foreseen any trouble, he would have stopped the operation immediately. Mr Ryan confirmed that there was no suitable crane on site. He had not tried to organise a crane. When cross-examined, Mr Ryan agreed that the safest method of unloading such rods was by means of slings, either using a crane or a forklift.

On the day in question, Friday 5 November 1999, the sliding manoeuvre was repeated several times, on each occasion the forks being inserted in the middle of the length of rods remaining on the flatbed, the forks being lifted, the lorry driver moving the lorry a short distance, another length of rods slipping off the lorry to the ground, and the forks being tipped or shaken to free the rods from the forks.

Finally, the only remaining length of rods lying on the lorry measured about 4 metres. The forks were inserted in the centre of the 4 metres, and lifted. The lorry drove forwards, and was free of the load. However despite the JCB driver repeatedly tipping and shaking his forks, and also reversing the JCB, the remaining length of steel rods would not drop to the ground. They had become jammed somewhere in the forks. The rest of the bundle of rods lay on the ground, and the pursuer described the rods as appearing to arch between the ground and the JCB forks.

The pursuer jumped off the lorry. Mr McInnes could not be seen at that stage. The pursuer decided to try to clear the jam. With a view to freeing the rods so that they dropped to the ground, he stood at the side of the forks, at the short end of the rods. He positioned himself on the fork-tip side of the rods (rather than on the JCB driver's side). The rods were about chest height. He stretched out his arms, leaving a gap of about one foot between his body and the side of the forks. He hoped that by lifting or pulling or tugging the rods, he could free them from wherever they were jammed, and they would drop straight down in the space between him and the forks. The pursuer then took a hold of the rods. Whether he managed to free them, or whether they simply came free of their own accord, the rods were released. However they did not drop straight down as the pursuer had hoped. In his words, they "jumped forward" and came on top of him. He found himself lying under the heavy steel. When he was rescued by the others (including Mr McInnes, who had reappeared), he found his right lower leg and foot dangling at a peculiar angle. It was obvious to everyone that his leg was broken. An ambulance was called, and the pursuer was taken to hospital.

Consequences of the accident

The pursuer was found to have suffered a severe fracture of the lower right leg, with both the tibia and the fibula broken in the calf area. The fracture was closed, with no bone protruding. There were also significant crushing injuries to the soft tissues, affecting inter alia the circulation of blood in the leg. The leg was so swollen that Mr Kevin Baird, the consultant orthopaedic surgeon in charge, had to postpone the necessary operation for some days. Meantime a back slab plaster was applied. An operation subsequently took place. An intramedullary rod was inserted, together with one screw at the top of the rod to assist with union of the tibia (the main weight-bearing bone). In accordance with normal practice, the fracture of the fibula was left untreated, as it would either heal spontaneously, or would continue to be unimportant in the context of function and weight-bearing.

The pursuer was discharged home on 15 November 1999. His leg was bruised, swollen, and painful. He was initially unable to climb upstairs, and was restricted to the ground floor of his home. He had to use crutches for about four months until February 2000. He then used a stick for about a month. He attended Belford Hospital regularly for physiotherapy. His physiotherapist concentrated mainly on straight leg raises, being concerned that other exercises would not benefit the pursuer. The pursuer's general practitioner prescribed anti-inflammatory drugs and painkillers.

Despite the passage of time and physiotherapy, the pursuer continued to suffer considerable pain around the fracture site. In evidence he indicated a band of pain around the mid-calf area of the leg. There was also a noticeable boney lump at the fracture site, and the area just below the bump felt soft to the touch. In addition to pain, the pursuer continued to suffer swelling around the fracture site. The swelling affected his lower leg from the knee to the foot.

Ultimately it was ascertained that the fracture had not united. During 5-7 July 2000, the pursuer was an in-patient in Raigmore Hospital, Inverness, where he underwent an exchange nailing operation. A new nail was inserted in his leg. The pursuer was again on crutches for about two weeks. He then had to use a stick. Following upon the second operation, the pursuer found that his symptoms had improved to some extent. He continued to suffer pain and swelling, but in his view, not as much as before. His mobility was still significantly affected. He lived on a steep hill, and was unable to drive. Initially, all he could manage was a half-mile walk into town and back. He then began attending the local gym in Fort William. He walked on a treadmill, which provided a flat surface in a heated environment. The pain still troubled him, but he persisted with exercise.

The pursuer was very keen to return to work, partly because he had always worked, and partly because of pressing financial reasons. He discussed the question with his consultant Mr Baird and with his general practitioner Dr Tangney. Mr Baird had reservations about the pursuer's returning to his pre-accident work, which involved being on his feet for up to ten hours a day, doing heavy manual labour such as breaking out roads. Nevertheless the pursuer felt that he did not have any option financially. He also thought that the more he used his leg, the better it would get.

The pursuer accordingly returned to work with the defenders on 6 November 2000. He tried to carry out his duties. He was breaking out concrete floors, shovelling and pushing barrows. He was working in a squad of about four, trying to achieve a production bonus which would be divided up amongst them. The pursuer was anxious to do his fair share of work, so as not to reduce the bonus. However he suffered considerable swelling of his leg, significant discomfort, and pain at night. After three or four weeks he had an appointment at the surgery. Dr Robertson, the general practitioner who examined the leg, was concerned. He advised the pursuer to take two months off work, and then to review the situation. The pursuer thus found himself off work again. He was referred to Mr Baird. Mr Baird confirmed that the pursuer should take some time off work. He also advised that in the long term the pursuer could not continue with the heavy work which he had been doing prior to the accident.

The pursuer tried wearing a support stocking, but found that his leg swelled up both below and above the stocking. He eventually gave up wearing a stocking.

The pursuer made efforts to ascertain whether the defenders could give him light work. He spoke with a Mr Simpson who was based in Inverness. Mr Simpson in effect indicated that there was no light work available for the pursuer. Thereafter the pursuer did not receive any offer of light work from the defenders.

The pursuer also considered re-training. He thought that he might be able to go to college and work towards a qualification. He first tried to obtain a City and Guilds electrician's qualification. He reasoned that if he could pass that hurdle, he would then be able to proceed to obtain the full qualifications required to be an electrician. The course involved attending Inverness one day a week for five weeks, and completing the necessary homework. He managed to achieve that certificate. He then attempted another course, focusing on inspecting and testing electrical installations. He found the course beyond him, and failed the examination. He then felt that he was not capable of becoming a fully qualified electrician.

The pursuer applied for a job driving day-care patients for 25 hours a week, but was unsuccessful.

The pursuer's sister had a partner, Derek Classe, who worked in the hotel and pub trade. Mr Classe was running several businesses: the Imperial Hotel, Fort William; the Volunteer Arms pub, Fort William; and the Argyll Hotel, Inverary. An arrangement emerged (on the evidence, it was not entirely clear how) whereby Mr Classe employed the pursuer as a part-time handyman to do general maintenance and repair work, such as changing light bulbs, mending faults, and changing toilet seats. The pursuer began working for Mr Classe in October 2001. At the date of the proof in January 2003, the pursuer was still in that employment, working 25 hours a week at a rate of £7.50 per hour. However Mr Classe had sold the Imperial Hotel in about mid-2002. He had also sold the pub. Accordingly, no work was available in Fort William. The pursuer had to work in the Argyll Hotel, Inveraray. Rather than travelling back and forward between Fort William and Inverary every day, the pursuer stayed with his sister in Inverary during the working week, returning home to his family as the weekend approached. This was a disadvantage, as the pursuer felt that he was not seeing enough of his two young boys aged 9 and 11. However he was grateful to have the work.

Parties were agreed that the pursuer was, at the date of the proof, earning £170 net per week - i.e. £8,840 net per annum - as Mr Classe's part-time maintenance man. It was also agreed that, had the pursuer been able to continue working as a chargehand ganger with the defenders, he would at the date of the proof have been earning £312.36 net per week - or £16,242.72 net per annum.

The pursuer was asked both in examination-in-chief and in cross-examination whether he had considered working longer hours. He replied that he had tried working longer hours for one week only. It had not been worth it. He had suffered so much discomfort. His leg had swelled up, and the pain had increased. Even working only 25 hours a week, he was troubled by swelling and pain towards the end of the week. The swelling and pain could be eased by having a bath, and by elevating the leg. But the leg had been much worse when he worked the longer week. The pursuer stated that he had to balance life and work and the children. He did not want always to arrive home at the weekend irritable and short-tempered because of the pain and the frustration of having to sit with his leg elevated to relieve the symptoms. He wanted to be able to join his sons in weekend activities.

The pursuer's wife Mrs. Delaney described the pursuer as having been "bad-tempered, sore, loud, intolerant", on his return from hospital. While there had been improvement since then, Mrs. Delaney confirmed that the pursuer had continuing problems with his leg. Some days his leg "ballooned right up", and went a "gangrenous green colour". When his leg was sore, he had to rest it on cushions on a small table. At the end of a 25-hour week, the pursuer's leg was sore, swollen and green, particularly if he had been on his feet all the time. He tried to alleviate the symptoms by having a hot bath, and by resting his leg on the cushions on the table. He took no medication other than Ibuprofen painkillers. The leg was also bad in cold weather. If she and the pursuer went for a walk in cold weather, he had to elevate and rest his leg when he got home. When asked to comment on her husband's ability to deal with his leg, she stated that she thought his ability to tolerate pain was amazing. He did not complain. He had never been out of work. He would do whatever he had to do to provide a wage for the family.

A further problem identified by the pursuer as preventing his working longer hours was the fact that Mr Classe kept selling his businesses. He had sold the Imperial Hotel and the Volunteer Arms. All that remained was the Argyll Hotel. The volume of maintenance work had decreased, and the pursuer sometimes felt hard pressed to find enough work to fill the existing 25 hours. The pursuer doubted whether he could find similar light, flexible, well-paid work with another employer. He said in terms that Mr Classe was very good to him. Mr Classe seemed to know if the pursuer was feeling pain, and would sometimes tell him that he had done enough for the day. The pursuer did not think that there were good prospects of his obtaining similar light flexible work with as understanding an employer but with longer hours. He was particularly anxious about finding himself contractually bound to perform a certain number of hours per week, no matter what the condition of his leg.

Mr Classe in evidence confirmed that he had sold the Imperial Hotel and the Volunteer Arms pub in mid-2002. He did not wish to explain why he had sold them. He said that he might have to review the pursuer's 25-hour week, depending on the current level of demand for maintenance work. Mr Classe was adamant that he could not offer the pursuer more hours. A part-time handyman was all that was required, not a full-time one. Mr Classe also mentioned the possibility that, depending upon his business plans (for example, selling the Argyll Hotel) he might have to bring the pursuer's contract to an end. The pursuer was entitled to only two weeks notice. Mr Classe added that he might, however, buy another hotel business.

Both the pursuer and Mr Classe stated that the pursuer was unable to cope with other occupations in the hotel, such as waiting at table.

Quite apart from the problems of finding and keeping suitable employment, the pursuer had found himself unable to return to the sport of shinty. He had played shinty since primary school, and had been the captain of the local shinty team at Lochaber. Shinty had been his major interest outside work. He used to train twice a week, and play every Saturday. His social life had centred on shinty. Professor Court-Brown had advised him against resuming shinty, but the pursuer ignored that advice and tried to play. However he found that he was physically unable to play: for example, he was unable to run. In fact, he could only walk a maximum of about two or three miles, after which his leg became swollen, discoloured, and painful. He reluctantly gave up active playing, and restricted his involvement to training school children.

Medical evidence

Three medical witnesses gave evidence on behalf of the pursuer.

Kevin Baird, the consultant orthopaedic surgeon in charge of the pursuer's case, stated that the pursuer had sustained a closed fracture of the tibia and fibula at the junction between the upper third and middle third of the bones. The fact that both bones had been broken, and that a fragment of the tibia had become dislodged, indicated the severity of the injury. The pursuer had also suffered a significant crush injury to the soft tissues - the muscles, nerves, blood vessels and skin. His leg had been very swollen after the accident, and the operation to treat the fractures had to be postponed because the leg was too swollen for surgery.

During the operation, a wire and an intramedullary nail had been inserted in the leg. The pursuer had subsequently developed a lump on his leg, which had been caused by a combination of the fracture itself and new bone developing around the fracture, allowing it to heal.

Mr Baird regarded the pursuer's periods of dependence on crutches and a stick as entirely reasonable. The pursuer's attendances at physiotherapy had also been appropriate.

The pursuer's fracture had however been very slow to heal. Delayed union was not entirely unexpected following a crush injury of such severity. A second operation had been necessary, and had taken place in July 2000 when a new nail had been inserted. The pursuer had been left with scarring as a result of the two operations.

Mr Baird considered that the pursuer's attempted return to work a year after the accident was a reasonable timetable, bearing in mind the nature of the injury. In Mr Baird's view, the fact that the pursuer had then found himself unable to carry out his pre-accident employment as a labourer on a construction site was not unexpected. Mr Baird stated that it was his opinion that the pursuer was now unfit to return to work as a labourer in the construction industry. Based upon what he knew of the pursuer, Mr Baird considered that situation to be permanent.

Although Mr Baird had not seen the pursuer for about 18 months, he considered that the lighter job as a hotel handyman, changing bulbs, mending toilet seats, and carrying out similar small tasks would be within the pursuer's capabilities. Mr Baird was not surprised to hear that the pursuer found his leg sore and swollen towards the end of a 25-hour week. He explained that, given the severity of the crush injury, there had been venous compromise.

Mr Baird's impression of the pursuer was that he was a straightforward man who wanted to get back to some work. He had been used to an active life-style, and was frustrated by being unable to continue that life-style.

When asked whether the pursuer could work longer hours, Mr Baird stated that there was no medical contra-indication, but he could not say that the pursuer would have no symptoms. If the pursuer could cope with the pain and other symptoms, he could try working longer hours. People with an injury such as the pursuer's often suffered continuing symptoms of pain and swelling for an indefinite time.

When asked about any benefit to be gained by an operation to remove the nail, Mr Baird stated that such an operation would be recommended where the patient was suffering pain at the insertion site, making it difficult to kneel. However any pain suffered at the site of the new bone formation would be unaffected by the removal of the nail, as would any swelling. Removal of the nail would not result in the pursuer's achieving his formal level of fitness. Nor would it enable him to return to work as a ganger or labourer. Removal of the nail might, or might not, help the pursuer to work longer hours.

Mr Baird commented that he had not found the pursuer to have a low pain threshold, or to exaggerate his symptoms, or to exhibit inappropriate signs.

Professor Court-Brown, professor of orthopaedic trauma and consultant orthopaedic surgeon at the Royal Infirmary, Edinburgh, examined the pursuer on three occasions, namely 20 April 2000, 3 August 2001, and 18 November 2002. The professor described the pursuer's injury as a fairly serious fracture. It was a high energy injury, associated with considerable damage. The loose fragment of bone indicated the high energy impact. There had been significant soft tissue damage, particularly to the muscles. Such damage tended to reduce the chances of union, reduce the movement in the adjacent joints causing ankle and hind foot stiffness, and also tended to leave scarring, impaired blood supply, pain and swelling. Swelling was not infrequently persistent after such an accident.

Professor Court-Brown confirmed that the pursuer had attempted to return to work within a reasonable time. It was not unexpected that he had been able to manage only three or four weeks, given the level of injury suffered. His was a difficult, manual job. The professor had seen quite a number of patients unable to continue with that type of work after that sort of injury. In his view, the pursuer was permanently disabled from returning to his pre-accident work. Again it was not surprising that the pursuer continued to suffer pain and swelling after working a 25-hour week as a hotel handyman. Quite a few patients suffered continuing pain and swelling after such an injury.

In relation to the possible removal of the intramedullary nail, the professor thought that removal would probably reduce any pain relating to the head of the nail (i.e. at the knee). However there would be no effect on the continuing pain and swelling around the fracture site. Removal of the nail would therefore be contemplated only if the patient was complaining of pain relating to the end of the nail. In Professor Court-Brown's view, the pursuer's pain was likely to be permanent.

When asked whether the pursuer could work longer hours, the professor stated that there would have to be a procedure of trial and error, to see what the pursuer could cope with. Generally, if one found a patient who was reasonably trustworthy, the patient's estimate should be accepted. Professor Court-Brown had been impressed by the pursuer. The pursuer had returned to work quickly. He had made the best of things. He was an impressive character.

In cross-examination, Professor Court-Brown was asked about a possible degenerative tear in the pursuer's meniscus, referred to in the professor's report dated 25 August 2000. The professor confirmed that the pursuer had been complaining of knee pain on that occasion, which the professor attributed to two causes: a possible degenerative tear of the meniscus, and the intramedullary nail. Pain caused by a degenerative tear was usually fairly localised. Many people had such tears, and the pursuer had been a shinty player. Even if the nail were to be removed, the pursuer would still have pain at the fracture site, and at the site of any degenerative tear.

The professor confirmed that in his view, the hotel handyman job was appropriate for the pursuer. It was less arduous than the pre-accident work. If the nail were to be removed, the pursuer might find that three areas of pain were reduced to two (i.e. he would lose an area of knee pain). He might also find that he could squat and kneel more than he could at present. But the removal of the nail would not eliminate the pain and swelling around the fracture site. The professor accepted that if the nail were removed, the pursuer could try to work more hours. The professor did not consider that the wearing of support stockings would do much good.

Professor Court-Brown confirmed that the pursuer had not required to take any days off work in his current employment. The pursuer attributed that achievement to the flexibility of his handyman job. That seemed reasonable. The pursuer had been straightforward when telling the professor what he was able to do. He had not tried to manipulate matters.

Dr Tangney, the pursuer's general practitioner in Fort William, stated that the pursuer had consulted him after the accident. By the date of the proof, Dr Tangney had not seen the pursuer for about a year. Dr Tangney's impression of the pursuer was that he was an honest, hard-working man, who had been fit and involved in sport. He wanted to be active. Being ill was not what he wanted; he was frustrated by the injury. Prior to the accident, he had rarely attended the surgery. Any attendances were connected with sports injuries.

The pursuer had been keen to get back to work. He had been off work for about a year. He had attended physiotherapy and had followed instructions. He had tried to return to work in about November 2000. However he had problems with pain and swelling in his leg. He had consulted one of Dr Tangney's partners, and had been advised to remain off work. Dr Tangney had then written to Mr Baird asking for a review. The pursuer had been frustrated by the problems. It was not through lack of effort on the pursuer's part that he had been unable to return to his pre-accident work. He wanted to work, but found that he was unable to do so as a result of the pain and swelling.

Dr Tangney described the pursuer as very genuine. He was not someone who complained. If he did complain, Dr Tangney paid attention. The pursuer only attended the surgery if there was something genuinely troubling him.

Dr Tangney's opinion was that the pursuer would not be able to return to his pre-accident work.

When asked about the pursuer's ability to work longer hours if his existing 25-hour week caused him pain and swelling, Dr Tangney stated that unfortunately the pain and swelling might persist for many years. Three years had passed since the injury. It was highly unlikely that the pursuer could work a 40-hour week if a 25-hour week was causing him some difficulty. The doctor's view was that working longer hours was not an option open to the pursuer.

The defenders led one medical witness, Mr Quentin Cox, consultant orthopaedic surgeon at Raigmore Hospital, Inverness.

Mr Cox confirmed that he had examined the pursuer on one occasion in April 2002. He had also seen the hospital records, the general practitioner records, and the three medical reports dated 25 April 2000, 3 August 2001, and 19 November 2002, prepared by Professor Court-Brown.

The pursuer had suffered a severe fracture of the upper tibia below the knee, together with significant soft tissue damage. When examined by Mr Cox, the pursuer had been complaining of three areas: swelling in the leg; pain when kneeling on the right side; and discomfort at the back of the knee going down to the calf, worse on activity. The pain and swelling increased as the day or the week progressed. On examination, Mr Cox found a full range of movement of the hips; no muscle-wasting above the knee; an operation scar; a visible and palpable deformity at the fracture site, with no effusion; tenderness at the front of the patella and along the scar; and diffuse tenderness over the upper tibia.

Mr Cox confirmed that the degree of pain and discomfort complained of was consistent with the significant injury suffered by the pursuer. The ankle joint and knee joint were remarkably good, bearing in mind the injury sustained.

When asked about the pursuer's complaints of pain and swelling by the end of the working week, resulting in having to elevate his foot, Mr Cox confirmed that the swelling had a gravitational element. The soft tissue injury included damage to the venous drainage of the leg. Elevating the leg helped to reduce the swelling. Mr Cox recommended that the pursuer try a support stocking, provided that it was supplied on prescription.

In Mr Cox's view, the pursuer's attempt to return to his pre-accident work, and his inability to remain longer than three or four weeks, was entirely reasonable. The swelling was not unexpected. Mr Cox had been advised that the pursuer had obtained a job as a hotel handyman. The pursuer had described the job as part-time, with a degree of flexibility. Mr Cox regarded it as advantageous for the pursuer not to be forced to remain in one position all the time (for example, kneeling). If the pursuer had to stand for 11/2, 2 or 3 hours, Mr Cox thought that he would have more trouble with swelling in his leg.

Mr Cox stated that the sort of injury suffered by the pursuer would affect his ability to walk over uneven ground. The pursuer's "proprioception" had been affected by the soft tissue injury: i.e. there was an impairment of the muscle stretch receptors which told the brain how far to bend the knee. Thus if the pursuer had to walk across a ploughed field, he would find it more difficult and his leg would tire more easily. The pursuer would also experience tightness and swelling.

When asked if the pursuer could work as an electrician's mate, carrying heavy cables on construction sites and performing other similar tasks, Mr Cox thought that the pursuer would not necessarily be prevented from trying such work, but if he had to work all day, moving back and forth, carrying cables and so on, he would tire easily. Also he would have to pick his way.

In Mr Cox's view, the pursuer would have to be given a gradual reintroduction, a "work-hardening" experience, to assess whether he could return to his pre-accident work. The pursuer had certainly been unable to work a 40-hour week as a ganger-labourer when Mr Cox saw him in April 2002.

Mr Cox was then asked about the possible degenerative tear of the meniscus mentioned in one of Professor Court-Brown's reports. There was an objection to the line of evidence on the ground of lack of record. The question was departed from.

In the context of removal of the nail, Mr Cox stated that some patients found it beneficial to have the nail removed. It was more difficult to predict the result in an individual case. If the X-rays showed that the nail was slightly prominent, Mr Cox would tend towards recommending removal of the nail. However if there was no suggestion that the nail was prominent, the matter would have to be weighed up. Much depended upon how much the activity of kneeling was causing the patient symptoms. The operation would make the swelling worse. Furthermore there was the pain at the back of the knee, which would not be cured by removal of the nail. Many people found that they could adjust their lives so that they were not kneeling on the knee with the nail. Knee-pads could be tried. Mr Cox agreed with Professor Court-Brown's view that even if the nail were removed, the pursuer would still be left with pain and swelling.

Mr Cox thought that the pursuer might be able to work as an electrician provided that he was not asked to do heavier work than he was currently doing. He might manage if he was doing less manual work. But resuming the sport of shinty would be difficult for the pursuer. Proprioception came into play, and it was not surprising that the pursuer had difficulty running. So far as exercising in the gym was concerned, Mr Cox stated that the pursuer would have to choose his equipment. He had an element of pain at the front of the knee, so rowing machines would make his symptoms worse. He had no problems with his upper limbs or his back. He could probably use the treadmill for short periods, to help the blood circulate. Straight-leg exercises would be beneficial. Swimming would be good provided that the pursuer avoided the breast-stroke, which would produce pain in the medial side of the leg. It would be best if he kept his leg straight.

Mr Cox considered that the pursuer was left with a disability, although not with gross impairment. The pursuer could not run. He could not participate in sport.

Mr Cox stated that he would be surprised if the pursuer could not work longer hours. However removal of the nail would not necessarily mean that the pursuer could complete a 40-hour week. Symptoms of pain and swelling were somewhat subjective. If the pursuer was complaining of pain and swelling after a 25-hour week, Mr Cox would recommend elevating the leg earlier in the week. As a fairly objective way of measuring pain, Mr Cox recommended using numbers of days off work, and types of painkillers taken. In the pursuer's case, there were no days off work, and the only painkillers were two to four aspirin tablets towards the end of the week. Also the pursuer had good muscle tone. Mr Cox's conclusion was that working longer hours would not make things worse for the pursuer. If more work were available, Mr Cox would have no objection if the pursuer wanted to "give it a go". On objective criteria, there was no reason why the pursuer should not work 40 hours per week rather than 25. In Mr Cox's professional opinion, the pursuer could work 40 hours in his current job.

In cross-examination, Mr Cox agreed that he had not found the pursuer to be making claims inconsistent with his condition. He was not "over-egging the pudding". When it was put to Mr Cox that Mr Baird and Professor Court-Brown were of the view that the pursuer was not fit, and was permanently unable to return to work as a ganger-labourer, Mr Cox stated that he did not disagree that the pursuer was not fit. Whether he was permanently unfit would have to be tested. When asked whether on a balance of probabilities the pursuer could return to such work, Mr Cox stated that on a balance of probabilities, he agreed with Mr Baird and the professor - in other words, there was an over 50 per cent chance that the pursuer could not return to his pre-accident work.

If, at the end of his 25-hour week, the pursuer was complaining of pain at the fracture site and swelling around the shin and calf, Mr Cox regarded such complaints as reasonable. The gravitational element in the venous damage meant that the swelling would come and go.

Mr Cox agreed that the pursuer was probably now as well as he was ever going to be. He had reached a plateau (apart from some possible symptom adjustment, for example, by wearing a support stocking).

When asked whether he would criticise the pursuer as "shirking work" if the pursuer said that when he did more than 25 hours, his leg became too sore and swollen, Mr Cox replied that he would not.

Health and safety evidence

Mr Walter Cameron confirmed his work experience, as set out in his report number 6/6 of process. He became a member of H.M. Factory Inspectorate in January 1961, then spent two years training and attending health and safety courses. Thereafter he worked as a factory inspector for 29 years, enforcing health and safety legislation, including legislation relating to construction sites. He became H.M. Principal Inspector in charge of the construction group of inspectors in Glasgow, enforcing health and safety legislation in Strathclyde and Dumfries and Galloway for a period of 10 years. Latterly, he was H.M. Principal Inspector in charge of the engineering group of inspectors in Glasgow. After retiring in December 1991, Mr Cameron became an industrial health and safety consultant.

Mr Cameron stated that in his opinion the makeshift method of unloading the steel rods was inappropriate and dangerous. The steel rods were extremely flexible. To drop the rods from the forks resulted in an uncontrolled drop. The JCB with forklifts was designed to lift pallets or other compact loads, carry them for a distance, and then deposit the pallets. The JCB was not designed to allow items to drop from the forks. If a 40 foot bundle of flexible steel rods was allowed to drop, it could bounce, and anyone in the vicinity could be injured.

The method of moving 40 foot rods was always by crane and two-legged sling. The rods were thus lifted in a controlled way, and were then deposited safely at their destination. If the defenders expected a delivery of steel of this nature, it was for them to give consideration to the unloading of the steel before the steel arrived on site. It was for the defenders to consider the hazards involved, and the steps to take. The appropriate person to consider such a matter was someone with experience and qualifications - someone much higher up in the company management than a ganger-labourer, who did not have authority to allocate company funds to the hire of a crane.

Mr Cameron further commented that anyone involved in unloading long flexible steel rods from a lorry should have sufficient knowledge and experience to know what was required. Mr Cameron would not have expected a ganger to be put in the situation in which the pursuer found himself, even if his employers were a small company.

In relation to the jamming of the rods, Mr Cameron explained that reinforcing steel rods were quite narrow. There could be small gaps or grooves in forklifts, for example, where the forks hinged. It was quite foreseeable that one of the rods would catch in a gap. The forks of a JCB could be tilted down to enable them to be inserted under a load. The forks were then tilted up again in order to carry the load. It was quite inappropriate to tilt and shake the forks to try to free a load from the forks. The use of forklifts with such a load was inappropriate. In 40 years experience, Mr Cameron had never seen reinforcing steel rods handled in such a way.

In cross-examination, Mr Cameron was asked to comment on a labourer who saw steel rods jammed in JCB forks, and decided to give the rods a tug. Mr Cameron commented that labourers on construction sites would be likely to adopt such an approach. They did not "hang about". They tried to resolve matters with the equipment available. However someone in the pursuer's position, on seeing the jammed rods, should in fact have done nothing. The JCB driver should simply have lowered the forks with the load resting on them.

Liability

Counsel for the pursuer invited the court to sustain the pursuer's first plea-in-law and to award damages of £228,397.

Counsel referred to the evidence of the pursuer, Mr Ryan, and Mr Cameron, and relied upon the four statutory cases averred on record.

Lifting Operations and Lifting Equipment Regulations 1998

With reference to regulations 6 and 8, counsel for the pursuer submitted that the pursuer had been involved in a lifting operation. The JCB with forklifts had been lifting the bundle of steel rods.

With reference to regulation 8(a) and (c), (lifting operation to be properly planned by a competent person, and to be carried out in a safe manner), counsel submitted that the duty imposed was a strict one. It had been breached. The lifting operation had not been properly planned by a competent person. Mr Ryan was not a competent person. Mr Ryan had said in evidence that he had not seen anything wrong with the way in which the rods were being unloaded by the JCB: but his equanimity simply demonstrated that he himself was someone who had not been properly trained. In any event, he had not planned the operation. He had not known when the rods would be delivered on site. The evidence of both Mr Ryan and Mr Cameron established that the safest method of lifting and unloading a bundle of long flexible steel rods was by crane and slings. But Mr Ryan had not made provision for a crane which could lift the load. He had not contacted a plant hire company. He had not made any enquiry or request of British Steel about how the rods could be unloaded from the lorry at the site. British Steel might be expected to have considerable experience of and equipment for such unloading. Mr Cameron's evidence had been to the effect that the whole enterprise using the JCB's forks had been hopelessly inappropriate.

Counsel for the pursuer submitted therefore that there had been breaches of regulation 8(1)(a) and (c), in that the operation had not been properly planned by a competent person, and had not been carried out in a safe manner.

In relation to regulation 6(1), (reduction of any risk of the load striking a person or falling freely), counsel submitted that part of the method of unloading adopted involved the load "falling freely" (subparagraph (1)(b)(ii) of regulation 6) in that the JCB driver tipped or shook the rods off his forks. There had therefore been a breach of regulation 6(1)(b)(ii).

Counsel for the defenders, on the other hand, submitted that the defenders had done what was reasonably practicable in the circumstances. The defenders owned a Hiab lorry with a crane affixed to the rear. However the Hiab was not large enough for the load. While there had been some suggestion that British Steel could have provided a lifting device such as a crane, that option had not been explored in evidence. The lorry and its load had appeared unexpectedly on a Friday afternoon. The only available machine was the JCB. Counsel submitted that the defenders had done what was reasonably practicable in the circumstances. Further, despite the pursuer's counsel apparently choosing to rely upon regulation 6(1)(b)(ii), counsel for the defenders submitted that the pursuer's case was truly founded upon regulation 6(1)(b)(iii) - unintentional release of the load. In that context, the pursuer was in some difficulty. But for his intervention, the load would not have been released unintentionally. The JCB forks could have been lowered. The load would not have sprung out if the pursuer had not pulled it. The pursuer had failed to establish any breach of statutory duty on the part of the defenders.

In my view, the pursuer has established a breach of regulation 8. Bearing in mind the evidence given not only by Mr Cameron, but also by Mr Ryan, I consider it to be established that in November 1999 the safe way of unloading a bundle of long flexible steel rods weighing about a tonne was by crane and slings or some similar arrangement. The method involving the JCB with forks was in my view improvised, unsatisfactory, not easily controllable, and accordingly risky for those in the vicinity. I am therefore unable to accept that the operation was properly planned by a competent person, or that it was carried out in a safe manner.

So far as regulation 6 is concerned, I accept that the pursuer founds upon regulation 6(1)(b)(ii). There were no averments by the defenders, and perhaps more importantly, no evidence led, which persuaded me that it was not reasonably practicable for the defenders to ascertain the date on which the steel rods would arrive on site, and to arrange for appropriate equipment to be on site for the unloading of the rods. For example, the use of a crane and slings would have satisfied the defenders' obligations in terms of regulation 6 in that they would have reduced "to as low as is reasonably practicable the risk ... (b) from a load ... (ii) falling freely". The defenders failed to satisfy me that it was not reasonably practicable to provide a crane and slings, or a similar arrangement. A breach of regulation 6(1)(b)(ii) has also in my view been established.

Provision and Use of Work Equipment Regulations 1998

Counsel for the pursuer referred to regulations 4 (work equipment to be suitable for the purpose), 8 (adequate information and instructions to be given about work equipment), 9 (adequate training to be given in methods when using work equipment), and 12 (any risk to safety when using work equipment to be prevented or adequately controlled).

In relation to regulation 4, counsel submitted that the JCB fitted with forks was not "so constructed or adapted as to be suitable for" lifting or raising the steel rods, because its use gave rise to a risk of injury from the uncontrolled movement of the load. The employer had a duty to assess any risk to health and safety in advance of the operation, and to ensure that the work equipment was used only for operations for which it was suitable. The evidence of Mr Cameron on this matter had been unchallenged. The JCB was unsuitable for the task.

In relation to regulation 8(1) and (2), counsel submitted that the pursuer should have been given adequate health and safety information about the operation proposed. In relation to regulation 8(3), the pursuer should have received instructions or warnings about what to do or what not to do in certain foreseeable abnormal situations, including warnings about placing himself in a position adjacent to the load if the load jammed. The rods were very flexible. The bulk of the rods had been lying on the ground, and as a result of the jamming of the end of the rods on the forks, the rods were arched. Once freed, there could be some kind of whiplash. The pursuer should have been advised of that risk, and instructed not to attempt to free the rods. There had therefore been a breach of regulation 8(3).

Regulation 9 repeated the employer's duty to instruct and train his employees, including training about methods to be adopted when using the equipment, any risks which might arise, and any precautions to be taken. That regulation had been breached.

Regulation 12 required the employer to take measures to prevent or reduce the risk to health and safety from specified hazards arising from the use of work equipment, other than by providing personal protective equipment or by training and instruction. In particular the employer was to take measures to prevent or reduce the risk to health and safety from the hazard of "any article or substance falling or being ejected from work equipment". The rods had fallen or been ejected from the JCB. Accordingly there was a breach of regulation 12.

Counsel for the defenders on the other hand submitted that there had been no breach of the 1998 regulations. Counsel invited the court to prefer the evidence of Mr Ryan to that of the pursuer, to find that there had been two bundles of long steel rods on the back of the lorry, and to find that one bundle had been successfully unloaded using the JCB. It was not clear why the rods had jammed on the second occasion. The defenders' position was that the pursuer should not have manhandled the rods. Once they were jammed, he should have been aware of the risk of injury if they were manhandled. If the pursuer had instructed the JCB driver to lower his forks, and had then sought assistance, the problem would have been dealt with in a different way.

As indicated in paragraph [4] above, when there were discrepancies between the evidence of the pursuer and the evidence of Mr Ryan, I generally preferred the pursuer's evidence. I was satisfied that there had been one bundle of long steel rods on the back of the lorry. Nevertheless, even if there had been two bundles, and one bundle had been successfully unloaded using the JCB with forks, that fact would not necessarily persuade me that there had been compliance with the Provision and Use of Work Equipment Regulations 1998.

In my view, the pursuer has established breaches of regulations 4, 8, 9, and 12. In relation to regulation 4, the evidence of the pursuer and Mr Cameron satisfied me that the JCB fitted with forklifts was not "so constructed or adapted as to be suitable for" lifting or depositing long, flexible steel rods in a controlled and safe manner. As the pursuer explained, the steel rods were so flexible that the forks could raise only a small portion of their length, leaving the rest lying on the back of the lorry. The method adopted on 5 November 1999 was in my view an improvised method, attempting to move an extremely heavy, long, and flexible load with machinery which was simply not suited to the task. I am satisfied that a breach of regulation 4 occurred.

In relation to regulations 8 and 9, the evidence established that the pursuer was given no warnings, instructions, or training in connection with unloading bundles of long, flexible steel rods weighing about a tonne. It was clear on the evidence that such rods have certain properties which may make them mobile and uncontrollable in certain situations - for example, if suddenly released after being held under tension, they may spring or whip-lash. The pursuer was given no guidance or information. I am satisfied that breaches of regulations 8 and 9 occurred.

In relation to regulation 12, the improvised method adopted, using a JCB with forklifts combined with the lorry moving forward, the steel rods sliding off the back of the lorry onto the ground, and the JCB driver tipping his forks so that the rods fell from the forks, contained an element of free and uncontrolled fall of a section of the steel rods. By contrast, the accepted safe method, using a crane and slings, did not include an element of free fall of the load. Regulation 12 provides:

"(1) Every employer shall take measures to ensure that the exposure of a person using work equipment to any risk to his health or safety from any hazard specified in paragraph (3) is either prevented, or, where that is not reasonably practicable, adequately controlled."

One hazard is defined as "any article or substance falling or being ejected from work equipment". As indicated above, the defenders failed to satisfy me that it was not reasonably practicable to provide a crane and slings (or some similar arrangement) to deal with the load of steel rods. Had a crane and slings been used, there would have been a much reduced risk of free movement or free fall of the load. In the circumstances I am satisfied that a breach of regulation 12 occurred.

Manual Handling Operations Regulations 1992

Counsel for the pursuer submitted that when the pursuer proceeded to move or to support the steel rods with his hands, he was involved in a manual handling operation as defined in the 1992 regulations. He was lifting, or pushing, or pulling the load. He was imparting bodily force to the load. In terms of regulation 4(1)(a) of the 1992 regulations, it was the employer's duty, so far as was reasonably practicable, to avoid the need for the pursuer to undertake any manual handling operation at work which involved a risk of his being injured. The employer had failed to comply with the regulation. The defenders had failed to show why it had not been reasonably practicable to arrange for a crane and slings.

Counsel for the defenders submitted that the unloading of the steel rods was not a manual handling operation. The pursuer had not been required manually to handle the load. Mechanical equipment had been provided, and was being used.

On this matter I agree with the defenders. I am not satisfied that the pursuer was engaged in a manual handling operation at the time of the accident. Regulation 2 of the 1992 Regulations defines "manual handling operations" as meaning "any transporting or supporting of a load (including the lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or by bodily force". The operation in which the pursuer was involved was being effected by mechanical equipment. It did not require any lifting, pushing, pulling, or supporting of the load by hand or by bodily force. I do not accept that the operation in which the pursuer was engaged could be regarded as a manual handling operation because the pursuer tried manually to free the jammed rods. Accordingly I am not persuaded that the 1992 regulations applied to the unloading of the steel rods.

Construction (Health, Safety and Welfare) Regulations 1996

Counsel for the pursuer contended that the pursuer was at the relevant time engaged in "construction work". He was involved in "the preparation for an intended structure, including ... laying or installing the foundations of the structure". He was certainly working on a construction site. Contrary to regulation 8(1) of the Construction (Health, Safety and Welfare) Regulations 1996, the defenders had not, "where necessary to prevent danger to any person", taken "suitable and sufficient steps ... to prevent, so far as [was] reasonably practicable, the fall of any material or object". The whole approach to the unloading of the lorry depended upon the steel rods falling.

Further, the defenders had breached regulation 8(4) which provided:

"No material or object shall be ... tipped from a height in circumstances where it is liable to cause injury to any person". The method of unloading the lorry required the tipping of the heavy load of flexible steel rods in circumstances where an employee in the vicinity might be injured.

So far as regulation 28 was concerned, the pursuer had been given no training or technical knowledge to assist him with the steel rods. Nor did he have the necessary experience. Hence his ignorance of the risks he was running. In the circumstances, there had been breaches of regulations 8(1) and (4), and 28.

Counsel for the defenders on the other hand submitted that in the context of regulation 8(1) and (4) there had been no employees in an area in which steel rods falling or being tipped were liable to cause danger or injury to any person. During the operation, the pursuer had been on the back of the lorry, in a safe position. He was not in danger there. Only when he jumped off the lorry and walked up to the rods could he be regarded as being in a position of risk. But in any event, the load did not in fact "fall". Nor was it "tipped". The load had jammed. Counsel accepted that earlier, when the pursuer was standing on the back of the lorry, and the JCB driver freed the load by tipping and shaking his forks, that amounted to a tipping operation. However it was not a tipping operation which had caused the accident. Once the pursuer was standing on the ground beside the JCB, the driver was not attempting to tip the rods off the forks. Any movement at that stage was the pursuer's alone. Also the defenders had done what was reasonably practicable in the circumstances. The defenders' Hiab lorry was not large enough. The possibility of British Steel providing some sort of lifting device had not been explored in evidence. The lorry had arrived unexpectedly on a Friday afternoon, making the option of hired plant impossible. In the circumstances, there had been no breach of the construction regulations.

I accept that the pursuer was engaged in construction work, and that regulations 8(1) and (4) and 28 applied. I also accept that the unloading method adopted depended upon the steel rods falling from the JCB forks onto a lower surface. In my view, the pursuer was in an area of risk not only when he jumped from the lorry onto the ground and stood near the jammed rods, but also when he was standing on the back of the lorry at times when the steel rods were being tipped or shaken free from the JCB forks such that they fell onto the lorry's flatbed.

So far as regulation 8(1) is concerned, I am not satisfied that the defenders took suitable and sufficient steps to prevent, so far as was reasonably practicable, the fall of the steel rods. As indicated previously, the defenders have not satisfied me that it was not reasonably practicable to make arrangements for a crane and slings to deal with the load. In relation to regulation 8(4), I am satisfied that the steel rods were "tipped from a height in circumstances where [they were] liable to cause injury to [a] person". As for regulation 28, I am satisfied that the pursuer did not possess the necessary training, knowledge or experience as was appropriate having regard to the nature of the unloading operation. Nor was he under sufficient supervision. In all the circumstances, I am satisfied that breaches of regulations 8(1) and (4) and 28 occurred.

Contributory negligence

Counsel for the pursuer submitted that there had been no contributory negligence. The burden of proof lay upon the defenders to establish contributory negligence, and they had failed to do so. Mr Ryan had been in charge of the unloading operation, not the pursuer. Mr Ryan had decided upon the manner in which the unloading was to be carried out. He had then either watched the procedure, or sat in his office knowing how it was being carried out. He expressed no concern about the method adopted. He thought it quite acceptable. Counsel reminded the court that it had been suggested to the pursuer in cross-examination that it was not sensible to try to free the rods as he had done. The pursuer replied that he had seen no problem, he had not foreseen what would happen. Of course the pursuer now accepted, with the benefit of hindsight, that there had been risks and that he would not perform such an operation again.

Counsel invited the court to have regard to the following factors: (1) The pursuer had no experience of a load such as the long steel rods. (2) Mr McInnes, a workman of greater experience than the pursuer, would (on the pursuer's evidence) have helped the pursuer to free the rods, had he been in the vicinity. (3) Mr Ryan had not been asked whether in his view the pursuer had done something stupid. Mr Ryan might well have replied that it was the pursuer's job to get on with the unloading. (4) As Mr Cameron, the health and safety expert, pointed out, the pursuer was only a ganger-labourer. What he had done was just what labourers did: they got on with the job. The pursuer had done something unsurprising, which the defenders might have foreseen would occur, and about which he required some instruction and warning. Reference was made to Moffat v. Atlas Hay, 1992 S.L.T. 1123. In the same way in the present case it was the defenders' failure to fulfil their statutory duties which had placed the pursuer in a position where he exposed himself to danger. In all the circumstances, there should be no finding of contributory negligence. If, contrary to that submission, there were to be any finding, it should not exceed 10%.

Counsel for the defenders advised the court that the averments upon which the defenders based their plea of contributory negligence were set out in Answer 3 of the record, and were as follows:

"The accident was caused by the pursuer's own fault and neglect. He had a duty to take reasonable care for his own safety. He was an experienced man. ... He knew or ought to have known as was obvious that if the rods became jammed on the forklift there was a material risk of injury to him if he tried to free them manually. ... If the rods became jammed in the forklift it was his duty not to attempt to move them manually. In each and all of said duties he failed and thereby caused said accident."

Counsel confirmed that any other averments appearing in Answer 3 on page 15 of the record did not form part of the defenders' case of contributory negligence.

Counsel for the defenders submitted that the pursuer was an experienced ganger. He was giving directions both to the JCB driver and to the lorry driver. There was no evidence that he had been in any danger when he was on the back of the lorry. It was only when he moved to the ground beside the jammed rods that any danger emerged. The pursuer should not have attempted to manhandle the rods. He had not discussed the jammed rods with either the JCB driver or Mr McInnes. He had not sought advice from Mr Ryan. He attempted to manhandle the rods without considering any possible dangers. When Mr Cameron, the health and safety expert, had been asked about the situation, he was quite clear that the load on the forks should have been lowered by the JCB driver and should not have been touched by the pursuer.

While accepting that there was no evidence that the pursuer had ever encountered a load such as the steel rods prior to 5 November 1999, counsel drew attention to the number of courses attended by the pursuer. The pursuer was not a newcomer to the construction industry. He held a scaffolding ticket. He had received training in unloading scaffolding materials. Given his evidence that he had never seen such a load before, he should have been more careful when the load jammed. He should have sought assistance.

Counsel for the defenders further submitted that the pursuer was not justifiably ignorant of the dangers. He had a number of years experience. The pursuer should have considered whether his own safety was in danger. Whatever the precise diameter of the bundle of rods (the pursuer had estimated two feet in his evidence in chief, while Mr Ryan's estimate was one foot), the pursuer was standing at arms length from the rods, tugging at them, leaving only about a foot between his body and the forks. Such a procedure was foolhardy. The pursuer had thought that the load would fall between him and the JCB. He did not consider the properties of the rods, and while the defenders did not criticise him for that (as he had never come across flexible steel rods before), it was all the more reason why he should have sought advice. Counsel suggested that the pursuer had been influenced by the fact that it was a Friday afternoon, close to the end of the working week. He had accordingly stepped in to try to free the rods. The court was invited to find the pursuer solely to blame for the accident. Alternatively, if the court were minded to make a finding of contributory negligence rather than sole fault, the court was invited to make a finding of 20% contributory negligence.

I consider that it was the defenders' site agent Mr Ryan who set up or authorised the method of unloading the long flexible steel rods using the JCB with forks. I also consider that it was the defenders' breach of duty which resulted in the pursuer's finding himself in the position he was in. I therefore reject any suggestion that the accident should be attributed to the sole fault of the pursuer.

The only question is whether there should be any finding of contributory negligence. The pursuer had worked in the construction industry for only three or four years. He was a ganger-labourer. He had no experience of, or training in, unloading long flexible steel rods. He had received no warnings about the properties of such rods. In these circumstances, the pursuer could not be criticised for failing to appreciate the properties and potential behaviour of flexible steel rods. Nor could he be criticised for participating in an improvised method of unloading the rods which had the approval of his superior, the site agent Mr Ryan. Nevertheless it was in my view rash for any adult taking reasonable care for his own safety to stand at arms - length from a raised and precariously balanced load which was known to be very heavy and to be at least a foot in diameter, and to try to dislodge that load by pulling or tugging at it in his own direction, in the hope that the load would fall to the ground in the gap between him and the machine. I accept the pursuer's evidence that he personally foresaw no danger; but in my view he ought to have foreseen at least some risk of danger to himself, if only a possible injury to a toe. Even without knowledge of the properties of long, flexible steel rods (particularly rods which had become jammed and therefore might be under tension) someone taking reasonable care for his own safety would in my view have appreciated that, if the heavy load was tugged or pulled in some way, its precise reaction, and its path to the ground once freed, could not be predicted with any certainty. Standing at arms-length from the load, in what could be the potential path of the load once freed, and trying to free the load, should in my view have been appreciated as involving some risk for personal safety. Accordingly while I reject the defenders' contention that there should be a finding of sole fault against the pursuer, I make a finding of 10% contributory negligence.

Quantum

Solatium

Counsel for the pursuer referred to the Judicial Studies Board Guidelines (5^th edition), Leg Injuries, paragraph 6 L(b)(iii) and (iv), and to Stirling v. Norwest Holst Ltd., 1998 S.L.T. 419. He submitted that damages for pain and suffering should be valued at £20,000, one half attributable to the past.

Counsel for the defenders referred to the Judicial Studies Board Guidelines (5^th edition) paragraph 6 L(b)(iv); and to Rhodes v. Bragg [2002] 4 Q.R. 11; Shires v. Ford [2002] 4 Q.R. 15; and Denheen v. B.R.B., 1988 S.L.T. 320. Counsel pointed out that, in the pursuer's case, there was no muscle-wasting, no limitation of movement in the knee joint, and no instability of the knee. The defenders' submission was that damages for pain and suffering should be valued at £15,000, one half attributable to the past.

I also consulted the new sixth edition of the Judicial Studies Board Guidelines.

I consider the injury suffered by the pursuer to be a significant one, with permanent consequences affecting his whole life. I agree with counsel for the pursuer that an appropriate award would be £20,000, with one half attributable to the past.

Loss of wages

Rates of pay and continuing wage differentials were the subject of agreement in the joint minute. It was agreed that, but for the injury, the pursuer would have continued working as a ganger-labourer with the defenders, and would have earned £46,908.29 net from 5 November 1999 to the date of the proof. Following upon the accident, the pursuer in fact earned only £3,735.16 in employment with the defenders. Also since commencing light work with Mr Classe in October 2001, the pursuer had earned £10,880 by the date of the proof. Counsel for the pursuer submitted that the pursuer's past wage loss as at the date of the proof amounted to £32,293.13.

The defenders argued that the pursuer should have been working longer hours ever since he began working for Mr Classe in October 2001. The defenders accordingly contended for a lower figure in respect of past wage loss.

Parties were also in dispute over future wage loss. There was a measure of agreement as set out in paragraphs 7 and 8 of the joint minute:

"7. As a chargehand ganger with the defenders the pursuer would be earning, as at proof, £312.36 per week or £16,242.72 p.a. net.

8. The pursuer earns as at proof £170 p.w. net or £8,840 p.a. net as a maintenance man employed by Mr Derek Classe at the Inverary Hotel."

Accordingly, parties were agreed that, as at the date of the proof, the pursuer was in fact continuing to suffer a wage loss of £142.36 net per week, or £7,402.72 net per annum. But there the agreement ended.

Counsel for the pursuer submitted that a full multiplier, selected from Table 25 of the 4^th edition of the Ogden Tables (loss of earnings to pension age 65 (males)), should be applied to the wage differential. But for the accident, the pursuer would have continued working for the defenders. The medical evidence established that the pursuer was now permanently disabled from returning to work as a labourer in the construction industry. Even Mr Cox, the orthopaedic consultant called by the defenders, had given an opinion in cross-examination that, on a balance of probabilities, the pursuer would not be able to return to his pre-accident type of work. (However if the court took a different view of Mr Cox's evidence, counsel invited the court to prefer the evidence of Professor Court-Brown and Mr Kevin Baird). Counsel submitted that the pursuer was a hard-working, uncomplaining, family man, who was doing his best to mitigate his loss. Even if the court formed the view that the pursuer could work for 40 hours a week, he would have to be able to find appropriate light work resulting in an increased net weekly wage. Finding such a job might not be easy. For example, the hourly rate might not be as good as that given by Mr Classe. The tax position might be different.

When asked about a possible choice between the two relevant loss of earnings tables - Table 23 (earnings to pension age 60) and Table 25 (earnings to pension age 65) - counsel accepted that there had been no clear indication in the evidence whether the pursuer would have continued working as a labourer in the construction industry until the age of 65. However he invited the court to draw as favourable an inference as possible from the evidence, and to bear in mind that the witness Mr Ryan was still working for the defenders in his capacity as site agent at the age of 59. It was possible that the pursuer might have been promoted. The pursuer presented as a well-motivated man, who might have worked until the age of 65, even although not digging trenches at that age.

Counsel for the pursuer accordingly submitted that the appropriate multiplier for the pursuer (aged 34 at the proof) should be selected from Table 25 of the Ogden Tables (4^th edition), and should be 19.35, being 21.03 adjusted for contingencies other than mortality. In adjusting for such contingencies, counsel referred to Section B of the Explanatory Notes to the Ogden Tables, headed "Contingencies other than mortality". Counsel adopted the medium figure in Table A for a man aged 35 (the pursuer being aged 34 at the proof), namely 0.96. Counsel then further reduced the adjustment figure of 0.96 by 0.02 to reflect the risks in the pursuer's manual occupation, and by a further 0.02 to reflect the pursuer's residence in Scotland in terms of paragraphs 42 and 44 of the Ogden Tables. Ultimately, the multiplier contended for was 19.35, being 0.92(21.03)=19.35.

Counsel for the defenders, on the other hand, submitted that the evidence indicated that the pursuer could work longer hours. As Mr Cox had pointed out, there was no medical or musculo-skeletal reason why the pursuer could not complete a 40-hour week. Mr Cox had found the following factors of significance: (1) The pursuer wished to work longer hours. (2) The pursuer was not on any medication other than aspirin in low doses of about 4 tablets at the end of a working week. (3) The pursuer was not having to visit his general practitioner: Dr Tangney had not seen the pursuer for some 18 months. (4) The pursuer had not had to take time off work. (5) The pursuer himself gave evidence that in his present job he had to search for things to do, and that he did not have to elevate his leg during the week (other than the normal elevation when lying in bed at night). It was only towards the end of the week that he had to take baths to relieve his leg, and to elevate his leg in day-time hours. There was therefore no objective reason why the pursuer was not able to work longer hours. He had a high pain threshold, or at least he did not complain. It appeared that the pursuer had not looked for alternative employment in the Fort William area since he began working for Mr Classe. The defenders should not have to suffer wage loss calculated with the current wage differential and a full multiplier simply because the pursuer was not trying out his leg for longer hours. The court had been given no information about jobs available in the Fort William area, and what work the pursuer might be able to do. The pursuer's reasons for not trying to retrain were unconvincing. The court was therefore invited to apply a lower wage differential as the multiplicand. Counsel's suggested formulation, set out in a Schedule of Damages, was as follows:

"For 25 hour week the pursuer earns £170;

For a 40 hour week the pursuer would earn £272

If still employed by defenders he would be earning £312 (approx)

Therefore: differential £312-£272=£40(52)=£2,080"

Counsel further submitted that the appropriate starting-point for the multiplier was Table 23, not Table 25. There was no evidence that the pursuer would have continued working as a ganger-labourer until aged 65. Nor was there any information upon which the court could base an inference that the pursuer might have been promoted. Counsel accordingly referred to Table 23, and in view of the pursuer's age at the proof (341/2) submitted that the appropriate multiplier was 18.51 (compiled from 18.78 and 18.25 in the table), discounted for risky employment and a Scottish location to 17.02, being 0.92(18.51)=17.02.

Counsel argued, in addition, that the pursuer's case involved so many imponderables that the multiplier should be further discounted. The pursuer might not have remained in the construction industry as a ganger. He might have returned to work as an electrician's mate. In any event, the construction industry in the Fort William area might suffer a recession. Counsel invited the court to have regard to the following specific factors when assessing what multiplier to apply: (1) The "Fort William" factor: job opportunities in Fort William were different from job opportunities in the central belt of Scotland. (2) The fact that, in the past, the pursuer had moved from employment to employment. While he had always worked, he had undertaken various jobs. He had been employed by electrical contractors who were no longer in business. He had worked for others. It was far from clear what job opportunities would have been available to him but for the accident. He was reluctant to retrain. (3) The fact that the construction industry required workers who were fit. Professor Court-Brown had mentioned a degenerative knee condition from which the pursuer suffered. Counsel accepted that there was no evidence about that matter, but nevertheless submitted that the court was entitled to take the view that, even without the accident, the pursuer's degenerative knee condition would have had an effect upon his working career. (4) Finally, the pursuer's wish not to seek more taxing work which might provide a higher income. In all the circumstances, counsel submitted that a multiplier of about 15 would be appropriate.

I take into account not only the evidence of Mr Baird, Professor Court-Brown, and Dr Tangney, but also the careful evidence given by Mr Cox. I consider the pursuer's injury to be a serious handicap for a man who has little formal training and who has made his way in life largely by means of labouring work. With the pursuer's history of continuing leg trouble which restricts the nature and amount of physical work he can undertake, he is in my view unlikely ever to be able to achieve his pre-accident earning power as a labourer. Retraining in order to undertake less physically demanding work does not appear to be a very likely prospect. I accept that the pursuer is well-motivated, but his past attempts to retrain in areas in which he had some experience and familiarity (electrician's work) were not wholly successful. The possibility that the pursuer might work longer hours also seems unlikely. As stated above, I accept that he is well-motivated. He wishes to work. He wishes to earn as much as possible. He does not want to be a handicap to any fellow employees with whom he works. He wants to be able to look after his family both financially and in other ways, and to enjoy his chosen leisure pursuits such as shinty. But the physical limitations imposed by his injured leg make these goals difficult for him to achieve.

I do not therefore accept that the pursuer should have been able to work longer hours ever since he began working for Mr Classe, as contended for by the defenders. Nor do I accept that it would be reasonable for the pursuer to leave his present employment in order to attempt to work longer hours (Mr Classe being unable to offer him more than 25 hours a week). The pursuer currently benefits from an understanding employer, who pays him a good hourly rate for a 25-hour week, and who allows him a degree of flexibility. The pursuer might be unable to find such a sympathetic employer elsewhere, and the pursuer was right, in my view, to view with trepidation the prospect of committing himself to an employment contract involving fixed and longer hours. None of the doctors who treated or examined the pursuer considered that he was exaggerating his symptoms. If anything, they thought that he tended to understate any pain, discomfort, or restriction in function. They considered him to be the best person to gauge the amount of work he was able to do within the restrictions imposed by his leg. Having heard the pursuer giving evidence, I entirely agree with the doctors. I accept that the pursuer is working as much as he can within the limits set by his injured leg. I accordingly reject the submission that the pursuer ought to be able to work longer hours each week, or ought to be actively looking for other employment.

It follows that I accept that the pursuer's past wage loss as at the date of the proof amounted to £32,293.13. Some weeks have passed since the proof, and applying the agreed continuing net weekly wage loss of £142.36, I calculate the pursuer's past wage loss to the date of this judgement at £33,432.01.

It also follows that I take the view that the pursuer is unlikely ever to be able to make up the wage differential from which he presently suffers. It stands at £7,402.72 per annum at present. In the future, that wage differential may increase to some extent, or it may decrease: but as the pursuer's damages must be assessed now, once and for all, I am satisfied that a multiplicand of £7,402.72 fairly represents the pursuer's annual wage loss.

I also accept that this is a case in which it is appropriate to apply a multiplier based on the Ogden Tables (4^th edition). In view of the heavy nature of the labouring work which the pursuer carried out prior to his accident, and the lack of evidence about his likely date of retirement or about any prospects of being promoted to a less physical job in his fifties or sixties, I am unable to accept that the pursuer would have continued in his pre-accident work after the age of sixty. I agree therefore with counsel for the defenders that Table 23 is the appropriate source for the multiplier. However without actuarial guidance, I am unwilling to accept the defenders' counsel's suggestion that a multiplier of 18.51 can be gleaned from Table 23. In my opinion in the absence of actuarial evidence the court should be guided by Table 23 alone, and the multiplier most appropriate to the pursuer, aged 34, is 18.78. Also if Table 23 is relied upon, the relevant table for discounting to reflect contingencies other than mortality is in my view Table B, (Loss of earnings to pension age 60), not Table A (Loss of earnings to pension age 65). Accordingly the appropriate adjustment factor is 0.98, reduced by 0.02 to reflect the risks in the pursuer's manual occupation, and by a further 0.02 to reflect the pursuer's residence in Scotland. In my view therefore the multiplier to be applied is 0.94(18.78)=17.65.

In relation to the defenders' submission that the court should take into account a possible degenerative tear of the meniscus, counsel for the pursuer had, in the course of the proof, objected at one stage to a question about a degenerative tear on the ground of lack of record. Although the question was departed from, and accordingly no formal ruling was required, it is undeniable that there are no averments on the part of the defenders about any such knee condition or its possible effect upon the pursuer's ability to work. In any event Professor Court-Brown in his report referred only to the possibility of a degenerative tear. He did not refer to a proven fact. For both the above reasons (lack of record, and reference only to a possible tear), I am unable to accept any submission that the multiplier should be further discounted to reflect a degenerative tear in the meniscus. Nor do I accept that there is any other valid reason for further discounting the multiplier.

A multiplier of 17.65 applied to a multiplicand of £7,402.72 results in damages for future wage loss of £130,658.

Loss of employability

Counsel for the pursuer made a minor amendment to the pleadings, to reflect the evidence as it had emerged. He submitted that the pursuer should be awarded a separate lump sum for disadvantage on the labour market. Mr Classe's evidence suggested a real risk that he might sell the hotel business in Inverary. The pursuer was well-motivated, and the court might take the view that he would be likely to find some work somewhere. Nevertheless there might be a gap of a year or so while the pursuer looked for work. Also the pursuer might not be able to achieve the same rate of pay. Counsel submitted that an appropriate award would be £25,000, being the equivalent of approximately three years pay.

Counsel for the defenders submitted that no such award should be made. Mr Classe's evidence should be rejected. He was unlikely to sell the Inverary hotel business. If there was any real risk of his doing so, he would have discussed the matter with the pursuer's sister, who would have mentioned that fact to the pursuer. In any event, Mr Classe had spoken of purchasing another business. Finally, counsel submitted, on an esto basis, that the pursuer's counsel's suggested figure of £25,000 was too high. Any award in respect of loss of employability should be made only if damages for wage loss were reduced. Any award should not exceed £10,000.

Mr Classe appeared to me to be a shrewd businessman who kept his own counsel. I was not persuaded that he would necessarily discuss his future business plans with the pursuer's sister. When Mr Classe first employed the pursuer, he had three businesses. He subsequently sold two. In relation to the third business, the hotel in Inverary, he gave evidence that he might well sell that business, although he also stated that he might purchase another business. While Mr Classe is a sympathetic and flexible employer, with a family connection with the pursuer, he struck me as unlikely to shape his business plans in order to suit the pursuer. Accordingly I accept that there is at least some doubt about the security of the pursuer's present employment, and that it is possible that he will at some stage be forced to look for work elsewhere. I also accept that he is at a serious disadvantage in the labour market. I consider that the sum of £25,000 fairly represents that disadvantage. I therefore make a loss of employability award of £25,000.

Services

Parties were agreed by joint minute that any damages awarded in respect of services should be £2,500, inclusive of interest.

Total damages

I shall sustain the pursuer's first plea-in-law and the defenders' fifth plea-in-law, and award damages as follows:

Solatium 1/2 to the past: £10,000 @ 4% for 3.34 years	£20,000 £ 1,336	£ 21,336
Past loss of earnings Interest: 4% for 3.34 years	£33,432.01 £ 4,466. 51	£ 37,898.52
Future loss of earnings		£130,658
Loss of employability		£ 25,000
Services (inclusive of interest)		£ 2,500
TOTAL		£217,392.52

The total award is reduced by 10% to reflect contributory negligence, resulting in an award of damages of £195,653.27. I reserve all questions of expenses to enable parties to address me on that matter.