OUTER HOUSE, COURT OF SESSION |
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A789/01
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OPINION OF LADY PATON in the cause PHILIP CRAIG JOHNSON (A.P.) Pursuer; against (FIRST) AMALGAMATED CONSTRUCTION COMPANY LIMITED and (SECOND) THE SCOTTISH COAL COMPANY LIMITED Defenders:
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Pursuer: Primrose, Advocate; Balfour & Manson
Second Defenders: Ivey Q.C.; McClure Naismith
8 October 2004
Accident on man-riding belt
[1] At about 8.30 p.m. on 30 January 1996, the pursuer, a shift foreman then aged 35, was making his way out of Castlebridge mine. It was the end of his back shift. He was on the man-riding belt in the A1 coal road. As he made ready to get off the moving belt, his head struck something. The impact knocked him backwards and caused him a whip-lash type injury. That injury accelerated symptoms of a previously asymptomatic degenerative condition of his cervical spine. He subsequently raised the present action for damages, maintaining that there had been inadequate head-room at the place of the accident. Both liability and quantification of damages are in dispute.First defenders released from action
[2] The pursuer sued firstly, his employers, Amalgamated Construction Company Limited (AMCO) and secondly, the Scottish Coal Company Limited (Scottish Coal) as owners and occupiers of the mine. AMCO had been contracted by Scottish Coal to drive roadways and tunnels in the mine. [3] In 2001, the pursuer released AMCO from the action. AMCO were assoilzied by interlocutor dated 25 May 2001, leaving Scottish Coal as the sole defenders.Proof before answer
[4] A proof before answer took place on 19 to 22 November 2002, and 18 to 19 March 2004. The pursuer (42) gave evidence. The following witnesses were led on his behalf: Mrs. Johnson (39), the pursuer's wife; James Meikle (62), a former AMCO haulage driver; John Farmer (50), a former AMCO contract miner; Mr. Beauchamp (52), a consultant orthopaedic surgeon; Dr. Farquharson (43), a consultant in anaesthesia and pain management; Dr. Banks, an employment consultant; William Gray (44), a former AMCO employee; John Evans (48), a former AMCO site manager; and Mr. A.G. Cannon (75), a chartered mining engineer. A joint minute was tendered, and the pursuer closed his case. [5] On behalf of Scottish Coal, evidence was led from Paul Blundell (31), an insurance manager for AMCO; Gordon Butterwick (47), formerly Scottish Coal's back shift deputy in the A1 coal road; John Brownright (48), formerly Scottish Coal's health and safety officer at Castlebridge mine; M. J. McMaster (63), a consultant orthopaedic surgeon; and Ramsay Dow (51), formerly the colliery manager at Castlebridge. [6] Of the lay witnesses, I found the pursuer, his wife, John Farmer, William Gray, Paul Blundell, and Ramsay Dow, to be straightforward, credible witnesses. Other lay witnesses seemed less straightforward. James Meikle's evidence was unsatisfactory, possibly because he had difficulty remembering anything. John Evans and John Brownright were unsatisfactory witnesses in a different sense. John Evans had been the senior AMCO representative with responsibility for the pursuer's safety. John Brownright had been Scottish Coal's health and safety officer, also with responsibility for the pursuer's safety. Yet neither had made an immediate and thorough investigation of the circumstances of the pursuer's accident. Thus Mr. Evans' evidence was based on memory of visual impressions obtained on the day after the accident, coupled with opinions and beliefs. Mr. Brownright's evidence related to records, general practice, and to an inspection of the site of the accident made some three weeks after the accident. Yet another unsatisfactory witness was Gordon Butterwick, the Scottish Coal back shift deputy responsible for health and safety during the pursuer's shift. His duties included routine checks of clearances at the alighting station. Mr. Butterwick presented as a reluctant, uneasy, and unconvincing witness, who gave the impression that he was not telling the whole truth.Man-riding in the A1 coal road
[7] The A1 coal road had been driven from outbye in to the coal face. On one side of the roadway were haulage wagons, activated by an engine and used to haul equipment to the workers at the coal face. On the other side was a continuous conveyor belt running on rollers. The belt travelled at 2.6 metres per second or 6 miles per hour, estimated by the pursuer's expert witness Mr. Cannon to be about three times average walking speed. The lower surface of the belt, which travelled into the mine, could be used to take materials and equipment into the coal face. The upper surface, which travelled out of the mine, carried minerals or (at certain designated times) men out of the mine. If for any reason a man did not use the belt to get out of the mine, he had to walk along the coal road. It could take about half an hour to walk out. [8] At designated man-riding times, the men got onto the belt in a lit-up area by walking up a ramp to a boarding station. The boarding station was a wooden platform erected alongside the belt. The belt did not stop to allow the men to get on. They had to step from the platform onto the moving belt. They then travelled on the belt into darkness. [9] The clearance or head-room between the upper surface of the belt and the roof of the roadway varied, depending on the shape of the tunnelled-out area at the relevant point, and the height at which the upper surface of the conveyor belt had been positioned (often supported by slings attached to steel arches). The clearance could be as little as 750 mm (about 21/2 feet). Thus anyone using the belt for man-riding purposes was expected to lie face down in a prone position. At the boarding and alighting stations, greater clearances were required to enable men to get on or off the belt in a crouched position. As the belt travelled towards the alighting station outbye, men on the belt were warned of the approach of the station by count-down signs at 45 metres, 30 metres and 15 metres. There was then a "Get off" sign and a sudden emergence into a lit-up area. A rider had to get to his knees, then to his feet in a crouched position in order step off the belt onto the alighting platform.Minimum safety clearance at alighting station
[10] Mr. Cannon, the pursuer's expert chartered mining engineer, referred to the Transport Rules for Conveyor Belt Man-riding at Castlebridge colliery in January 1996. Those Rules had been issued in terms of section 37 of the Mines and Quarries Act 1954. [11] Paragraph 7 of the Rules provided:"Minimum Clearances
... (e) Above centre of top strand of conveyor belting at boarding and alighting stations ................. 1.5 m"
Mr. Cannon confirmed that the minimum acceptable clearance at the alighting station was 1.5 m (about 5 feet). Any lesser clearance would be dangerous, and would be a breach of section 37 of the 1954 Act.
[12] Mr. Cannon could not give any views about the actual site of the accident. He stated that he had not had an opportunity to inspect the site. He had based his report and opinion dated 1 May 2001 on a letter of instruction dated 31 August 2000; a statement from the pursuer; a copy of the Open Record dated June 1999; an interview with the pursuer in Edinburgh on 5 January 2001; and a copy of Scottish Coal's Transport Rules for Conveyor Belt Man-riding dated June 1995. He noted the pursuer to have been 5 feet 7 inches in height, and to have been in a crouched position when the accident occurred. At paragraph 5.3 of his report he concluded:"...It is obvious that the clear height above the belt at the alighting station where the pursuer was alighting was less than 1.5 metres (5 feet). We understand that some change in gradient of the belt had apparently raised its height some time previously."
Spillage of coal and "grading" of the belt
[13] In January 1996, the coal being brought out by the A1 coal road was particularly wet. That wetness, together with certain uneven areas in the conveyor belt, resulted in spillages of coal from the belt onto the coal road. In an effort to prevent further spillages, employees of both Scottish Coal and AMCO were regularly engaged in "grading" the conveyor belt (i.e. levelling out dips in the belt and thus altering its height to some extent). [14] There was a dispute in the evidence as to whether adjustments to the conveyor belt could be made without stopping the belt and without being documented. [15] The evidence of the pursuer, John Farmer, William Gray, Gordon Butterwick in cross-examination, and John Brownright also in cross-examination, suggested that much depended on the particular adjustment sought to be made, and on the equipment available. For example, Mr. Gray explained that if the adjustment involved raising the conveyor belt to some extent on the walking side (rather than on the "tight" side), and if appropriate equipment was available, those adjusting the belt could do so while the belt was running and carrying coal. Such running repairs came about partly because production targets made belt stoppages highly undesirable. [16] However the evidence of Mr. Dow, the colliery manager, suggested that no grading or alteration to the belt would be made without stopping the belt.Pursuer's account of the accident
[17] The pursuer confirmed that he had used the man-riding belt in the A1 coal road many times. He had used the belt at least two or three times each shift for a period of about a year before the accident. He knew that there were overhead pipes at the alighting station, carrying waste water, compressed air, and methane. The pursuer estimated the head-room available at the alighting station at about 4 feet. [18] The pursuer said that on 30 January 1996, he boarded the conveyor belt in the usual way. He rode to the first count-down sign for the alighting station. He did not notice any new hazards. He began to get ready to get off, adopting a crouched position. As he started to stand, he struck his head on a coupling joint on pipework. The force of the impact knocked him backwards onto the belt. Although conscious, he was dazed and disorientated. [19] The pursuer emphasised that getting on and off the belt was always a formidable task. There was no room for error. The belt moved fast and did not slow down to allow men to get on or off. The pursuer's standard practice was to fix his eyes on the point on the wooden platform where he would place his left foot. He had followed that practice on 30 January 1996. If there had been some overhead hazard, he simply had not noticed it, as he was "concentrating too much on other things". [20] People travelling behind the pursuer saw that he had had an accident and was having difficulty getting up. Someone activated the emergency stop button. The belt came to a stop. [21] The pursuer described himself as dazed. He had no feeling in his arms and hands. He could not use his arms to push himself up. He wriggled about and got to his knees. He then managed to stand up, but his hands and arms were lifeless. He was helped off the belt onto the platform and then to the ground. He sat down for about twenty minutes to "get [himself] back together". Then, because he was the supervisor of the shift and the person in charge, he felt that he had to lead by example. As a result, he walked out of the mine. He went to the Medical Room, arriving there at about 9 p.m. He reported his accident to the nurse. [22] The entry in the Medical Room records was in the following terms:"Date: 30/1/96
Time: 21.15
Check no: 1847
Time of accident: 20.30
Philip Johnson, age/d.o.b. 5/9/60
Job category/District: A.M.C.O. A1 coal road man-riding belt.
Condition: Grazing to back of neck. Tingling of both arms *.
History: Dismounting belt. Struck joint of pipe range.
Treatment/advice: [indecipherable] clean (16A); flamazine (22c) dry dress; cervical collar.
Comments: AR1. F.D.R.I. ..."
Other accounts of the accident
[31] James Meikle (62) had been working at the haulage engine. He did not see the accident, but spoke to the pursuer afterwards. Mr. Meikle thought that there had been problems with coal spillage during the back shift. He thought that he remembered some Scottish Coal employees coming to repair the belt, but he could not say at what time, or what they had done, or whether a record had been kept. He had not been aware of the belt coming to a halt during the shift. Mr. Meikle did not use the belt for man-riding, and could not give any estimate of head-room at the alighting station. [32] John Farmer (50) had been working inbye. He did not see the accident, but heard that the pursuer had been going out and had "caught the pipes at the man-riding platform". Mr. Farmer had not been aware of any work being carried out to the conveyor belt during the shift. Instead, he focused on the pipes crossing above the belt, and the care which belt-riders had to take to avoid striking the pipes. There was one point about 30 metres before the alighting station where a belt-rider had to go from his knees back onto his stomach, then up onto his knees again, in order to avoid pipes. There had been comment that some of the pipes had not been "done properly", possibly because parts had not been ordered. Mr. Farmer estimated the clearance at the alighting station at about 4 to 5 feet. He did not regard himself as a big person (he was 5 feet 9 inches tall) but even he had difficulties getting off at the platform. Following upon the pursuer's accident, the height of the belt had been altered. Work had been done on the pipes. The pipes had been pulled tighter into the side and as high as they could go. As a result, the clearance had been slightly better. [33] William Gray (44) was travelling on the belt about 20 to 30 metres behind the pursuer at the time of the accident. Mr. Gray described the head-room available at the 45 metre warning sign as about 3 to 4 feet. Between the 15 metre warning sign and the start of the platform, a belt-rider began to crouch to be able to step off. As overhead pipes were slung diagonally across the belt between the 15 metre marker and the "Get off" sign, the clearance was restricted to about 3 to 31/2 feet. At the platform itself, there was more head-room. The pursuer hit a pipe just at the "Get off" sign. One had to keep down and go under the pipe before standing up. The clearance under the pipe was about 3 feet. The pipes had subsequently been lifted higher. The pipes had not always been there. They were for pumping water away. They were a make-shift job, low-slung. There had been complaints to the deputy, but nothing had been done. Mr. Gray regarded the pipes as "makeshift" because pipes crossing a man-riding belt should be installed as high as possible and as straight across as possible, so that men riding the belt could duck under and up. If pipes ran diagonally over a belt (as those pipes did) there was more chance that someone on the belt would hit a pipe. [34] Mr. Gray saw the pursuer hitting his head, and staggering back. The pursuer had been right under the pipes when the accident happened. Someone stopped the belt. The pursuer got up onto the platform. He walked down and stood in a tunnel at the side. He was dazed. [35] Mr. Gray could not say whether any adjustment had been made to the belt during the pursuer's shift, although he commented that grading the belt was an almost daily occurrence. He attributed the limited head-room to the fact that pipes had been moved. At that stage, Mr. Ivey, senior counsel for Scottish Coal, objected to the line of evidence. Mr. Primrose responded on behalf of the pursuer. I allowed the pursuer's counsel to continue, reserving all questions of competency and relevancy. The relevant ruling can be found in paragraph [115] below. Mr. Gray therefore continued to describe the overhead pipes. The pipes were "normally okay". But about a week before the pursuer's accident, a pipe had appeared, which had not previously been above the man-riding platform. It had been put there to deal with water problems. The week after the pursuer's accident, the pipes were lifted "tight to the roof". Mr. Gray had not seen that being done, but he had subsequently noticed that the pipes had been lifted. Prior to the accident, nothing had been done to draw a belt-rider's attention to the new pipe.Investigations following upon the accident
[36] John Evans (48), AMCO site manager, was the most senior AMCO employee at Castlebridge mine in January 1996. Mr. Evans had responsibility for inter alia the safety of AMCO employees, including the pursuer. [37] Mr. Evans arrived at the mine at about 5.15 a.m. on 31 January 1996, the day after the pursuer's accident. The accident was reported to him. He was told that the pursuer had been travelling on the belt in the A1 coal road, and that he had struck his head on a pipe at the alighting station. The pursuer had gone home to England. Mr. Evans felt that he had to speak to the pursuer face-to-face in order to find out what had happened. Accordingly it was not until three weeks later, on 23 February 1996, that Mr. Evans spoke to the pursuer face-to-face on his return to work, and completed the AMCO accident report in the following terms:" ... How did the accident happen? - Head struck low pipe while alighting manriding belt (A1 coal road) ...
...Remarks - Low pipes have now been re-slung to avoid further accidents of same nature ..."
"3 m/s re-grading alighting platform 2 m/s cleaning drive drums, further maintenance top and bottom roller req'd. Belt locked off m/riding on instructions of D. Campbell WPIS Eng."
No similar entry could be seen on 30 January 1996. Mr. Butterwick confirmed that if there had been a reduction in head-room at the alighting station, he would have suspended man-riding due to insufficient head clearance at a man-riding platform. No mention of insufficient head clearance appeared in the report for 30 or 31 January 1996. Mr. Butterwick confirmed that if there had been anything untoward about the clearance, that would feature in the report.
[49] Mr. Butterwick was then asked to look at the colliery district shift reports made in compliance with the Management and Administration of Safety and Health at Mines Regulations 1993 (the "Masham" reports) number 7/6 of process. There were three shifts each day: day shift; back shift; and night shift. The day shift and back shift reports for 30 January 1996 made no mention of difficulties with head-room at the alighting station. The night shift report for 30-31 January 1996 appeared not to have been lodged in process. [50] Although informed of the nature of the accident on 31 January 1996, Mr. Butterwick did not complete the Scottish Coal accident report (form AR1) until the pursuer's return to work some three weeks later on 23 February 1996. Mr. Butterwick said that he had to know how the accident had occurred, and the exact location. He did not have that information, and therefore he could not complete the form. He felt that he had to interview the pursuer to find out what had happened. [51] In cross-examination, Mr. Butterwick said that he had not known precisely how the accident had occurred until the pursuer's return on 23 February 1966. All that he had been told on 31 January 1996 was that a man had hit his head coming off the man-riding belt. He agreed with a suggestion that, if he did not know how the accident happened, he could not have carried out a very careful inspection on 31 January 1996. He said that he had a "brief look round", looking for any defects in the roadway. He added that he had not known anything in particular about the accident. He knew nothing about low pipes being re-slung. [52] Mr. Butterwick accepted that everyone was under pressure to keep the belt running. Although it should not happen, there were occasions when the belt was kept moving while adjustments or repairs were carried out. Maintenance such as grading the belt should have been recorded, but was not always. [53] John Brownright (48) was Scottish Coal's health and safety officer at Castlebridge. He started work each day at 6.30 a.m. His first task was to check whether there had been any accidents during the previous 24 hours. It was his practice to call at the Medical Room to see who had reported for treatment. He noted the names, then collected the relevant accident report (form AR1) from the deputy concerned. His duties included reporting accidents to the manager, making written reports, and going down the mine to check conditions. [54] On 31 January 1996, the day after the pursuer's accident, Mr. Brownright called at the Medical Room. He was given information about the pursuer's accident. He asked the back shift deputy, Gordon Butterwick, for the accident report. Mr. Butterwick had been unable to complete a report, as the pursuer had returned to England. Mr. Brownright's view was that Mr. Butterwick would not be expected to submit form AR1 solely on the basis of what a third party told him. Mr. Butterwick required more information from the pursuer. [55] There was therefore a lapse of about three weeks before Mr. Brownright received the formal accident report AR1. Meantime he took no steps to investigate the accident. Despite having the information in the Medical Room records (as set out in paragraph [22] above), he made no investigations and no measurements, nor did he instruct others to carry out investigations or measurements. He did not go down the mine on the day after the accident. He explained that it was his duty to react to information provided to him in a formal accident report. Until he received that report, "a comprehensive investigation could not be undertaken". [56] On receipt of the accident report AR1 in late February 1996, Mr. Brownright and his supervisor went down the mine with a view to measuring the clearance at the alighting station and checking compliance with the Transport Rules. Mr. Brownright had not received a copy of the AMCO report completed by Mr. Evans. Accordingly he was not aware of Mr. Evans' remarks that "low pipes have now been re-slung to avoid further accidents of same nature". Nothing in the paperwork submitted to him suggested that the cause of the accident was either the raising of the belt, or the low position of a pipe. Mr. Brownright had been aware of previous incidents where a belt-rider had got up from the belt too soon, striking his head. [57] Measuring the clearance was an easy matter. Mr. Brownright simply stood on the alighting platform holding a cloth tape. He hooked the tape onto the rim of a girder, and measured the clearance down to the centre of the belt. Mr. Brownright and his superior found that the clearance at the alighting station in late February 1996 was within the guidelines. [58] Commenting on the two suggested mechanisms whereby the clearance or head-room might have been reduced (namely, altering the height of the conveyor belt, or the position of the overhead pipes), Mr. Brownright conceded that it was "possible" that overhead pipes might have been moved in February/March 1996: but as far as he knew, no pipes had been altered. Adjusting pipes was a difficult process. Water and air had to be turned off. Any conveyor belt running beneath the pipes had to be stopped. A record of the work done would be kept. Mr. Brownright had checked the belt inspection reports number 7/4 of process; the Man-riding Belt Installation reports number 7/5 of process; the "Masham" reports; and a report by Scottish Coal H.M. Inspectorate of Mines in connection with a visit to the A1 coal road on 9 February 1996. There was no entry suggesting that the pipes had been moved. While the Masham report for the night shift of 30-31 January 1996 appeared to be missing, the day shift report for 31 January 1996 would have disclosed any works carried out to achieve adequate headroom. No such works were mentioned. [59] Turning to the question of a possible alteration to the height of the conveyor belt, Mr. Brownright pointed out that anything which reduced a clearance of 1.5 metres (5 feet) to 2 or 3 feet (Mr. Evans' visual estimate) could not be classified as "grading". "Grading" was tinkering with the belt to get the best out of the belt; but a reduction in clearance by several feet was more major work. If the belt was to be lifted by about 12 inches or more, the belt would be stopped before the work began. Mr. Brownright conceded that more minor works on the belt might be carried out while the belt was moving. There was a dedicated team of Scottish Coal belt maintenance men who worked on the belt. Engineering supervision might be necessary. The depute would be involved. Any work altering the height of the belt would normally feature in the belt inspection reports and the Man-riding Belt Installation reports. Mr. Brownright had examined the reports lodged in process. There was no entry suggesting that work had been done on the belt at the alighting station in the A1 coal road such as to encroach upon head-room at 30 January 1996. It was put to Mr. Brownright that Mr. Evans had noticed a change in the clearance at the accident site on the day after the accident. Mr. Brownright agreed that if Mr. Evans was right, that would be an example of something which should have been recorded, but was not. [60] Mr. Brownright described the A1 coal face as the primary production face of Castlebridge. The A1 coal road was the main roadway to that face. Many people used the belt in the A1 coal road for man-riding. There were three shifts of miners each day, with 30 men in each shift. There were mine support workers, surveyors, belt maintenance men, road maintenance men, senior officials, under-managers, deputy managers, safety officers, and the colliery manager. Inspectors associated with trade unions such as the NUM and NACODS also travelled on the belt, as did Mr. Brownright (in his case several times a week). The safety of the belt for man-riding was given high priority, because of the health and safety of all the people travelling on it. Trade union inspectors and H.M. Inspectorate of Mines would not let any breach of the Transport Rules pass unnoticed.The colliery manager's overview
[61] Ramsay Dow, M.B.E. (51) was the colliery manager at Castlebridge in January 1996. He confirmed that people generally walked into the mine on foot, but rode out on the belt. There would be about 30 men in each shift. Senior management also used the belt: for example, the under-manager; the deputy manager; and Mr. Dow himself, two or three times each week. A mines inspector used the belt and inspected the belt once a month. Inspectors appointed by the NUM carried out inspections on behalf of the miners. Accordingly the belt in the A1 coal road was used by many people, including people from outside the colliery whose job it was to check on the safety and condition of the belt. [62] It was put to Mr. Dow that the pursuer was suggesting that the belt at the alighting station had been raised, thereby reducing the headroom at the station. Mr. Dow responded that in his opinion, it would be a major job to raise the belt at that location. The work would take an hour or more. The belt could not be lifted manually. Equipment would be required, such as a chain hoist. A chain hoist could not be used safely if the belt was moving, and accordingly the belt would have to be stopped. The wooden platform would be at one side of the belt in the alighting platform, but a working platform would be required on the other side. [63] In Mr. Dow's view, a clearance of only 2 or 3 feet at the alighting station was virtually impossible. The belt would be lifting off the rollers outbye. The belt would "float" from side to side. [64] The overhead pipes carried services to the inbye area, such as water for fire-fighting, compressed air, and a pumping column which pumped water back out of the mine. All the pipes would be installed at the same time, before the belt was installed. It was suggested to Mr. Dow that a new pipe had been put in place at the alighting station, some two weeks before 30 January 1996. Mr. Dow replied that if a new dedicated pipe column were to be installed, the belt would have to be stopped. In relation to the suggestion that an existing pipe had been lowered, Mr. Dow stated that in order to drop pipes, a working platform on the other side of the belt would be required in order to gain access. A pipe could not just be dropped at one place: there had to be a lowering of the pipe for a considerable distance on either side. Pipe lengths were about 20 or 30 feet. In order to lower one pipe length, one would have to remove the chains from a number of pipes. Lowering pipes was a lengthy operation, and would be subject to the manager's rules about isolating what was passing through the pipes. For example, compressed air would stop. The pumps could not be used. Water would rise in the roadways inbye. Coal production would stop. Thus lowering pipes would be a planned job, would interrupt work, and would be recorded. There had been no such interruption in the two weeks before 30 January 1996. [65] There had been a visit from the mines inspector on 9 February 1996. The inspector had been accompanied by Mr. Dow and by Mr. J. Brown. The A1 coal road had been visited. The inspector had paid attention to the man-riding belt. Had the head-room at the A1 alighting station been in breach of the Transport Rules, the inspector would have brought that matter to Mr. Dow's attention. He had not done so. Safe use of conveyors in mines was high priority, following upon a report by the Health and Safety Executive in 1993. That report had been compiled as a result of a number of dangerous occurrences, serious injuries and fatalities arising from the use of man-riding belts. Accordingly in 1996 considerable emphasis was placed on the supervision and running of conveyors underground. [66] In cross-examination, Mr. Dow disagreed with a suggestion that if lifting equipment were in place, two people could lift a conveyor belt within a reasonably short period. He hoped that such incidents did not occur. He had put systems and supervision in place, and he did not expect employees to lift conveyors willy-nilly. [67] When it was suggested that there had been evidence that at the end of the pursuer's shift, the height of the belt had noticeably changed, Mr. Dow stated that he had procedures in place to identify dangers, and he had confidence in his officers. If there had been any change in height, that would have been picked up in reporting procedures. [68] No information had come to Mr. Dow that the overhead pipes had been moved either before or after the accident. When Mr. Evans' AMCO accident report was put to Mr. Dow (containing the words "Low pipes have now been re-slung to avoid further accidents of same nature"), Mr. Dow expressed surprise. He had not previously seen that report. He was not aware that pipes had been re-slung. [69] When asked about a pipe with fluorescent tape, possibly indicating a hazard, Mr. Dow replied that there could be no "grey area". If there was not the statutory headroom, the belt would be stopped. Either the belt complied, or it did not. He had no knowledge of fluorescent tape. He could not say that the law permitted fluorescent tape to be applied to an overhead hazard when men were travelling on the belt. [70] In re-examination, Mr. Dow confirmed that if any pipes were to be repositioned in the A1 coal road, such work could not be done by AMCO. The work would have to be done by Scottish Coal.The pursuer's injuries and the consequences
[71] The accident caused a cut or abrasion to the back of the pursuer's neck, where his helmet dug in. More importantly, the pursuer suffered a severe hyperflexion or hyperextension injury to his neck, which accelerated symptoms of a previously symptom-free degenerative condition of the cervical spine. [72] When the pursuer attended the Medical Room at Castlebridge colliery, he had pain in the back of his neck radiating down to his shoulders and back. While some feeling and movement had returned to his arms and hands, he was still having problems with tingling and numbness. [73] The pursuer then travelled to Bolsover, Chesterfield, Derbyshire, wearing the cervical collar provided by the colliery nurse. He attended the Royal Hospital in Chesterfield, where he was X-rayed and found to have no fractures. By letter dated 1 February 1996 (number 6/9 of process, page 13) an orthopaedic registrar advised that he should wear a soft collar, take non-steroidal drugs, and undergo physiotherapy. [74] The pursuer tried some physiotherapy. However his neck remained very stiff and sore. He continued to experience aching, tingling and numbness in his arms and hands. He had difficulty sleeping because of the continuing pain and aching discomfort. He experienced great discomfort when trying to carry out strenuous activities such as lifting or bending. [75] As a result of pressure from Mr. Evans, the pursuer returned to work after about three weeks, although he had not recovered. In his capacity as supervisor, he was initially able to restrict himself to light duties. For example, as he was experiencing difficulty lifting weights, he tried either to avoid lifting, or to have additional help when lifting. But he was unable to avoid bending and working in cramped conditions. He found that he was having significant problems carrying out his work. As the months passed, the problems increased. He eventually requested a transfer from Castlebridge to Maltby colliery, nearer his home, in order to benefit from regular medical attention and lighter duties. However the work there was even more strenuous. He was forced to request a lighter job. His request was refused. He then had to decide whether to try and continue (which in fact he could not physically manage) or whether to take time off work and convalesce. He terminated his employment in about mid-1996, only a few weeks after his transfer. He subsequently remained unemployed for over three years, until November 1999. He then managed to obtain work in the light engineering sector, with R & E Kirwin Ltd., Chesterfield, manufacturers of cleaning blades for paper mills. His wages there were considerably lower than the wages he had earned with AMCO. A Joint Minute number 28 of process agreed that in 1995-96, the pursuer had been earning a net average weekly wage of £470 with AMCO, whereas at the time of giving evidence (November 2002) he was earning £277 net per week with R & E Kirwin Ltd. [76] During his time off work, the pursuer rested and convalesced. He was depressed. He had lost status and income. His prospects of obtaining employment seemed non-existent. The pursuer described himself as very irritable and low, and difficult to live with. He took out his pain, depression and frustration on his family. He continued to attend his general practitioner. He was referred to a pain clinic, and was given facet joint injections and a TENS machine to help with the pain. [77] At the date of the proof, the pursuer still suffered from all the symptoms, but in a milder form. The evidence of the pursuer, his wife, the orthopaedic consultant Mr. Beauchamp, and the pain consultant Dr. Farquharson, gave a picture of constant pain and stiffness in the neck, right shoulder, and arm; reduced rotation of the neck and right shoulder; tingling and decreased sensation throughout the right arm, particularly on the outer side of the forearm, and in the thumb, index and middle fingers (all suggestive of nerve compression); difficulties with lifting and bending; problems with headaches and sleep disturbance; a degree of stress and depression (although on the evidence of Mrs. Johnson and the medical witnesses, the pursuer was a straightforward person who kept a lot to himself as he "did not like moaning"); and an inability to walk any distance, to indulge in physical play with his children, or to resume swimming and motorcycling. The pursuer continued to attend the pain clinic and to receive facet joint injections. He took muscle relaxants. [78] The pursuer had never previously experienced any problems with his neck and shoulders. But for the accident, his intention had been to carry on in the career structure offered by AMCO, and to become a site manager. [79] When asked if he would have found work elsewhere if he had lost his job with AMCO as a result of decreasing demand for mining engineers, the pursuer accepted that the mining industry had declined. However AMCO had survived. Recognising that the mining industry was shrinking, AMCO had diversified, and taken steps to move into other areas of work, such as civil engineering. The pursuer had experience of engineering outside mines. He had worked with railway companies constructing and maintaining tunnels. The pursuer considered that he would have been well qualified for AMCO's new ventures. In this context, however, Mr. Blundell, an insurance manager for AMCO, gave evidence that AMCO's work force had shrunk from 2,142 in 1991 to 485 in 2000, and further reduced to 145 in 2002. Mr. Blundell thought that it was very unlikely that the pursuer would have been transferred within AMCO to alternative work in civil engineering. In such circumstances, the pursuer's career path might have been as outlined in evidence by Dr. Banks, the employment expert, with reference to his reports numbers 6/6, 6/18 and 6/19 of process. [80] The pursuer had to rely upon assistance from his wife for a year or so. He had found driving very uncomfortable, and his wife did the majority of the driving. His wife had also carried out DIY and strenuous tasks around the house (such as moving furniture), whereas formerly, the pursuer had performed those tasks. The pursuer's brother had also helped by doing general DIY work; plumbing jobs such as installing additional radiators; and general building work around the house and garden. Some jobs required his brother's presence every day; other jobs might result in weekend work only. His brother was continuing to help as at the date of the pursuer's evidence (19-20 November 2002): he was constructing an outbuilding for the storage of the pursuer's gardening equipment.Medical evidence
[81] There were three medical witnesses:[82] Mr. Beauchamp, MB, ChB, FRCS (52), consultant orthopaedic surgeon at the Chesterfield and North Derbyshire Royal Hospital, with considerable experience of treating miners' injuries. He examined the pursuer on two occasions for the purposes giving reports and evidence on the pursuer's behalf.
[83] Dr. Farquharson (43) MB, ChB, DA, FRCA, a consultant in anaesthesia and pain management at Chesterfield Royal Hospital, Derbyshire. The pursuer was a patient at his pain clinic. Dr. Farquharson had seen on the pursuer on three occasions between January 1998 and June 1999. Thereafter the pursuer had been treated by a colleague. Dr. Farquharson saw about fifty patients each week. Many had degenerative conditions of the spine. Derbyshire had mining and heavy metal industries, and many of the patients worked in those industries. Accordingly Dr. Farquharson had seen many cases similar to, although not identical with, the pursuer's case.[84] Mr. McMaster (63), MB, ChB, FRCS, consultant orthopaedic surgeon at the Royal Infirmary, Edinburgh, with 28 years experience of back problems (including miners' back problems). He was instructed by Scottish Coal to examine the pursuer for the purposes of the case. Mr. McMaster interviewed and examined the pursuer on 11 August 1999 and 21 August 2001. He gave his opinion on the basis of those examinations and interviews, and also on the basis of medical records, X-rays, and most importantly, MRI scans viewed in consultation with a consultant radiologist with a special interest in spinal pathology.
[85] Each consultant gave evidence that the pursuer had a very severe pre-existing degenerative condition of his cervical spine, with severe narrowing of the cord, and restriction of the nerve roots. Each agreed that the degenerative changes had not been caused by a single incident, but had developed slowly, over a number of years. Each gave evidence that, even without the accident, the pursuer would eventually have suffered the same sort of symptoms as he was suffering when he gave evidence, including the numbness in his right arm. If the pursuer had undergone an MRI scan for some reason in January 1996, he would have been advised not to return to mining or to any other heavy work. [86] The one matter causing disagreement was the estimated period by which the pursuer's symptoms had been accelerated. Mr. Beauchamp and Dr. Farquharson estimated that there had been an acceleration of five to ten years. Mr. McMaster estimated that the acceleration was in the order of one to two years. [87] In weighing up the evidence, I took into account the fact that Dr. Farquharson acknowledged that he was not an expert in interpreting MRI scans, and that he would defer to a radiologist's view. I also took into account the fact that Mr. Beauchamp had initially formed a view about the pursuer's condition without the benefit of MRI scans. He was later given MRI scans. Mr. Beauchamp said in evidence that those scans had disclosed a degenerative condition of a much greater degree that had been visible on X-ray. He acknowledged that the degenerative condition was quite severe for someone of the pursuer's age and fitness. [88] Finally, I took into account the fact that Mr. McMaster, when forming his opinion, had not only the benefit of MRI scans, but also the assistance and advice of Dr. Beggs, a consultant radiologist with a special interest in spinal pathology. Mr. McMaster reviewed the scans with Dr. Beggs. They found very severe degenerative changes in the cervical spine, with severe narrowing of the spinal cord, and restriction of the nerve roots. On a range of one to ten, with ten being the most severe, the pursuer was at level nine. Level ten would be someone who was paralysed because the spinal canal had narrowed to such an extent that he would be quadriplegic. The pursuer had suffered an extreme amount of degeneration for a fit man. He was "an accident waiting to happen". [89] The MRI scans were displayed and analysed in the course of the proof. Those scans, and the evidence of all three witnesses, persuaded me that the degree of degenerative change in the cervical spine suffered by the pursuer prior to his accident was exceptionally severe for someone of his age and fitness. Bearing in mind such a degree of degeneration, and the other factors mentioned in paragraphs [87] and [88] above, I ultimately accepted Mr. McMaster's estimate of an acceleration of the symptoms of the pursuer's previously symptom-free condition by one to two years.Liability
Submissions on behalf of the pursuer: liability
[90] Counsel for the pursuer moved the court to sustain the pursuer's first and second pleas-in-law, and to award the pursuer damages. So far as the defenders' pleas were concerned, the first plea-in-law had already been repelled; the second to fifth pleas-in-law should be repelled, and the sixth plea sustained only to the extent that the sum sued for was excessive. [91] There were two strands to the pursuer's case. [92] (i) A modification or adjustment of the belt, lessening the head-room available: After his accident, the pursuer had been told of spillage problems by several people, including Mr. Meikle. On the evidence of the individuals who were "hands-on", working down the mine, the height of the belt could be adjusted in a relatively short time, while the belt was still running. Again, on the evidence of those individuals, the operation would not necessarily be documented. Counsel accepted that on the evidence it was not clear exactly what had been done. It was submitted however that the evidence of John Farmer, John Evans, and William Gray established that the clearance at the alighting station was restricted and did not satisfy the 1.5 metre minimum laid down by the Transport Rules. The two strands of the pursuer's case intertwined to some extent, in that Mr. Evans also remembered that pipes crossing the belt were re-routed after the accident. [93] Counsel submitted that there was ample evidence enabling the court to conclude that there had been a breach of Scottish Coal's common law duty of care, as a result of the alteration to the belt made in the course of the pursuer's shift. Further, in relation to the statutory case, if the court accepted the evidence of the pursuer and other witnesses (in particular John Farmer) the clearance at the alighting station was illegal even before anything had been done to the belt. It therefore followed that, if the court accepted that something had been done to the belt to raise it, the Transport Rules had been breached. [94] (ii) Insufficient head-room due to the presence of a pipe in the vicinity of the alighting station: The second strand to the pursuer's case concerned an overhead pipe. The main witness to the second strand was William Gray, who gave evidence that there had been an alteration in the pipes in the vicinity of the alighting station. He told the court that the pipe which the pursuer struck had been installed the week before. Further, he gave evidence that after the accident, pipes were lifted tight to the roof. Counsel submitted that there was ample notice of the separate case on record, and that the defenders' objection to the line of evidence should be rejected. Another witness, John Evans, remembered pipes being moved the next day. The court was invited to find a breach of statutory duty and common law duty on the basis of the second separate case concerning an alteration to the overhead pipes. [95] Counsel ultimately confirmed that the pursuer also invited the court to find liability established as a result of a breach of the Occupiers Liability (Scotland) Act 1960.Submissions on behalf of Scottish Coal: liability
[96] At the outset, senior counsel for Scottish Coal renewed his objection to the line of evidence relating to any modification of the pipes at the locus. The pursuer's case on record was a raising of the belt during the pursuer's shift, with an esto case that, if no alteration had been made to the belt, the head-room as it had existed for a considerable period was insufficient. There was no case on record concerning modification of pipes, or the addition of a new pipe. [97] Turning to the pursuer's first strand, counsel posed the question: where was the evidence that the belt had been raised. A difficulty for the pursuer was that there was a considerable variation in what was said to be the resulting head-room. No-one had measured anything. That was just one of the doubtful features in the pursuer's case. [98] Counsel submitted that the sort of grading which would produce an insufficient clearance for the pursuer (who said in evidence that he was 5 feet 7 inches, and who was crouching at the time he struck his head) suggested some adjustment much more significant than an inch or so. Accordingly the sort of operation involved was not "grading", but a fairly major change in height, an engineering operation. The pursuer himself could not give evidence about any such operation. Mr. Meikle's evidence, it was submitted, amounted to nothing. John Farmer gave no evidence about work being done to the belt on the day of the pursuer's accident, but described a pipe which had to be ducked on the approach to the station. [99] William Gray did not say that anything had been done to the belt that day. He thought that the accident occurred because of lowered pipes, and that a new pipe had been installed a week or two before the accident (a line of evidence objected to on the basis of lack of fair notice in the record). Critically, Mr. Gray said nothing about a modification to the belt, but introduced the issue of a new (or altered) pipe. The court was asked to rule that Mr. Gray's evidence about a new or altered pipe was inadmissible. But if that evidence were to be admitted, counsel invited the court to reject it in its entirety. [100] John Evans was another witness focusing on the overhead pipes. Mr. Evans described a mystery pipe with fluorescent tape which no-one else had mentioned, and which was moved the next day. [101] Counsel concluded in relation to the pursuer's first strand by submitting that there had been no evidence of any work done to the belt at the alighting station on the day of the pursuer's shift of such a nature that the head-room was reduced. [102] The second strand of the pursuer's case, as pled on record, was nothing to do with altered pipes. The complaint was that for some time the pipes had not permitted sufficient clearance. The difficulty for the pursuer was that he had not described such a situation. [103] Counsel submitted that the suggestion that insufficient clearance had existed for a considerable period was unacceptable. It was inconceivable that such a situation could exist unnoticed. The insufficient clearance would come to the notice of the mine management, the mines inspectorate, and the workmen's inspectorate (NUM, NACODS, and other trade union inspectors who would not be slow to draw attention to inadequate head-room). [104] If the evidence about an alteration to pipes, or the installation of a new pipe, were to be admitted (despite objection), then that evidence was wholly incredible. Witnesses Brownright and Dow had explained that the installation of a new pipe was a major operation. Gas, air and water had to be shut down, and mining operations stopped, thus losing money. To suggest that a pipe could appear a fortnight before, and disappear a few weeks later was incredible, or at best unreliable, evidence. The records did not disclose the installation of a pipe. The pursuer himself did not say that there had been a new pipe. [105] Counsel concluded on liability by submitting that there was no evidence of a breach of the Transport Rules at the alighting station. There was nothing upon which to base an alleged breach of the common law duty of care. In particular, there was no evidence to suggest that the clearance of 5 feet accepted as adequate in the Transport Rules could in some way be regarded as inadequate and unsafe at common law. If no breach of the Rules could be established, the pursuer had no case at common law. The Occupier's Liability (Scotland) Act 1960 did not in the circumstances add anything to the common law. [106] Counsel invited the court to sustain Scottish Coal's second and third pleas-in-law, and to grant absolvitor.Decision: liability
Transport Rules: Article 5 of Condescendence
[107] In 1996, in terms of the Transport Rules, the minimum clearance at the A1 coal road alighting station should have been 1.5 metres or about 5 feet. If the pursuer proves, on a balance of probabilities, that at the time of his accident on 30 January 1996 the clearance had been allowed to fall below 5 feet, then a clear breach of the Transport Rules would be established. [108] The pursuer sought to prove that such a reduction in the minimum clearance had been caused by either of two mechanisms, namely (i) the process of grading (adjusting the height of the conveyor belt to prevent coal spillage), or alternatively (ii) the installation of, or alteration to, pipes running above the belt at the alighting station. [109] Putting to one side for the moment the mechanism which might have caused any reduction in clearance at the alighting station, the crucial question in my view is: what clearance actually existed at the alighting station in the A1 coal road at the time of the pursuer's accident on 30 January 1996. One of the profoundly unsatisfactory features of the present case is that no-one (either from AMCO, or Scottish Coal, or a trade union) measured the clearance in the hours or days following the pursuer's accident. The evidence established that measuring the clearance was an easy matter. Mr. Brownright stated that one stood on the platform and used a cloth tape hooked onto the rim of a girder. Mr. Evans, AMCO site manager with responsibility for the safety of AMCO employees such as the pursuer, accepted that it would probably have been an easy matter for him to measure the clearance at the alighting station. Nevertheless he did not do so. Similarly no Scottish Coal safety representative made the necessary measurements on the day after the accident. As a result of this highly unsatisfactory state of affairs, no measurements were made of clearances at the alighting station in the hours or days following upon the pursuer's accident. It was not until late February 1996 that Scottish Coal safety representatives made measurements of the clearances at the alighting station, and found them to comply with the Rules. By that time, it was at least possible that the physical environment had changed since the day of the pursuer's accident. Certainly witnesses John Farmer, William Gray, and John Evans gave evidence that, following upon the pursuer's accident, works were carried out altering the belt height and/or the position of overhead pipes. [110] At all events, the only evidence of clearances at or about the time of the pursuer's accident consisted of visual estimates relating to rather ill-defined parts of the man-riding belt: the pursuer's estimate of about 4 feet; Mr. Evans' estimate of about 0.6 metres (about 2 feet); John Farmer's estimate of about 4 to 5 feet; William Gray's estimate of about 3 to 31/2 feet at the "Get off" sign, with a greater clearance at the alighting platform; and Mr. Butterwick's evidence that, so far as he could see, there was nothing amiss at the alighting station. There was, in addition, the evidence of the pursuer's chartered mining engineer Mr. Cannon. His conclusion was based on reasoning that if a miner 5 feet 7 inches tall adopts a crouched position yet nevertheless hits his head on an overhead obstruction, then the clearance at that point must be less than the statutory minimum of 5 feet. [111] Such visual estimates, opinions, and views are not sufficient in my opinion to establish whether or not there was a breach of the Transport Rules at the alighting station on 30 January 1996. Some of the visual estimates were made in circumstances of considerable difficulty during normal working procedures (for example, when travelling on the moving belt, or about to alight from the belt, moving suddenly from darkness into light). Moreover, as the Transport Rules permit a clearance of 750 mm (or 21/2 feet) on the approach to the alighting station, it is essential to establish in precisely what area a height was being estimated or measured. Finally, I am unable to accept Mr. Cannon's approach as a satisfactory substitute for an actual measurement of the clearance at the alighting station. In the circumstances that he describes, there could be alternative explanations other than a breach of the Transport Rules. [112] In my view therefore, in a case such as this, the court is entitled to evidence of an actual measurement of the clearance available at the alighting station at, or reasonably shortly after, the time of the pursuer's accident. Without such evidence, the court cannot reach a proper conclusion about compliance or non-compliance with the Transport Rules. Accordingly I am not satisfied that the pursuer has established his case based on the Transport Rules as set out in Article 5 of Condescendence. [113] That being so, it is unnecessary to decide how a reduction in the clearance at the alighting station (if any) might have come about. Nevertheless, for completeness, I give the following views. [114] Dealing firstly with the pursuer's alternative mechanism involving overhead pipes: counsel for Scottish Coal objected to the pursuer's line of evidence in relation to pipes, on the basis of lack of fair notice on record. In response, counsel for the pursuer relied upon averments at page 7B-C of the record, which were in the following terms:"Separatim explained and averred that esto as the second defenders [Scottish Coal] aver, no alterations had been made to the height of the A1 man-riding belt on the day of the accident (which is denied) there was, in any event, insufficient room above the belt to allow the pursuer to access the alighting platform in safety due to the presence of the water pipes. The second defenders ought to have routed the said water pipes away from the area directly above where operatives required to leave the man-riding belt, as they did after the accident. It would have been reasonably practicable for them to have done so. Alternatively they ought to have marked the pipes with fluorescent tape to draw the attention of those such as the pursuer to their existence."
Common law negligence: Article 4 of Condescendence
[120] In January 1996, the accepted minimum safe clearance at an alighting station was defined by the Transport Rules as 1.5 metres (about 5 feet). As indicated in paragraph [107] above, if the pursuer were able to prove that the clearance at the alighting station in the A1 coal road was less than 5 feet, a breach of the Transport Rules would be established, and the pursuer would be entitled to damages. There would be no need to rely upon negligence at common law, and no need to establish the reasonable foreseeability of the accident. [121] If however it were proved that the clearance at the time of the pursuer's accident was 5 feet or over, I am unable to accept that such a clearance could be regarded as a breach of Scottish Coal's duty of care at common law, bearing in mind that the Transport Rules laid down the then generally accepted safe clearance. [122] In the result, the pursuer has been unable to prove to my satisfaction the clearance existing at the A1 coal road alighting station at the time of his accident on 30 January 1996: see paragraphs [109] to [112] above. It follows that I unable to conclude that Scottish Coal were in some way negligent at common law. I accordingly reject the case set out in Article 4 of Condescendence. [123] I would add that, as it has not been proved that any grading or alteration to the belt was made during the pursuer's shift, and as there were no averments and no evidence relating to prior accidents at or complaints about the clearance at the alighting station prior to the pursuer's accident, there was in my view little material upon which the pursuer could rely to establish that his accident was reasonably foreseeable to Scottish Coal.Occupier's liability: Article 7 of Condescendence
[124] Section 2(1) of the Occupiers Liability (Scotland) Act 1960 provides:"The care which an occupier of premises is required ... to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them ... shall ... be such care as in all the circumstances of the case is reasonable."
Conclusion: liability
[127] It follows that liability on the part of Scottish Coal has not been established. I shall sustain Scottish Coal's second and third pleas-in-law, and grant them absolvitor.Contributory negligence
[128] For completeness, I now deal with the issue of contributory negligence. [129] Counsel for the pursuer submitted that there had been no contributory negligence. The pursuer's evidence showed that he regarded alighting from the belt as an operation not to be undertaken lightly. He needed his wits about him. He knew that there were overhead pipes. It was highly unlikely that he would stand up too soon when he was fully aware of those pipes and when he was aiming for a certain point on the platform. Furthermore the pursuer was a careful worker. He was well thought of. He did not seem to be the sort of person who would make a blatant mistake, given the nature of the operation. If the pursuer struck his head on a pipe either because the conveyor had been raised, or a pipe had been moved, it was not an indication of carelessness on his part that he failed to notice anything. He was concentrating on his work, paying attention to where he was going when stepping onto the platform: cf. McArdle v. Andmac Roofing Co. [1967] 1 W.L.R. 356. [130] Counsel for the defenders submitted that the most likely explanation for the pursuer's accident was a misjudgement on his part. He had stood up too early. If however the court took the view that there had been a change (although not a very significant change) to the man-riding belt, it would be appropriate to fix contributory negligence at 33%. The pursuer had travelled the belt many times before. The circumstances were very different from those in McArdle. [131] Had liability been established, I would have made a finding of no contributory negligence on the part of the pursuer. The pursuer had travelled the A1 coal road belt many times before his accident. He was a good, conscientious, experienced worker who enjoyed his job. At the time of his accident he was carrying out a manoeuvre which he had successfully performed on countless previous occasions. As was his practice, he focused on the part of the platform on which he was about to step and adopted a crouching position. There was nothing in the evidence which persuaded me that he failed in his duty to take reasonable care for his own safety.Damages
[132] Accordingly, had liability been established, I would have awarded damages without any reduction reflecting contributory negligence.Submissions on behalf of the pursuer: damages
Valuation based on an acceleration of symptoms by five to ten years
[133] Counsel for the pursuer invited the court to prefer the opinions of Mr. Beauchamp and Dr. Farquharson. Each was very experienced. Each attached significance to the fact that the pursuer had managed to work in a heavy job in difficult conditions for many years, without suffering any problems. The pursuer's leisure time had also involved active pursuits, such as swimming and motorcycling, yet his degenerative condition caused no difficulties. The accident on the belt had involved a forceful blow, outwith all normal experience, similar to a whiplash injury caused in a rear-end shunt. It was not unrealistic to take the view that the pursuer would have continued in his pre-accident employment for longer than the period estimated by Mr. McMaster. Quantification of damages should therefore be approached on the basis of an acceleration of the symptoms of a degenerative condition by five to ten years. [134] On that basis, bearing in mind the pain and stiffness in the neck, right shoulder and arm; the need for regular facet joint injections; together with the depression, irritability and change in personality, damages of £12,000 should be awarded for pain and suffering, two-thirds being allocated to the past: cf. Diamond v Wylie, June 5, 2000, Kemp E2-064.2; Parslow v British Waterways Board, July 7, 2000, Kemp E2-059.3; Calford v Campbell, November 18, 1999, Kemp E2-055; and Ralley v Read, August 23, 2001, Kemp E2-051.1. [135] In relation to wage loss, on the basis of a five to ten year acceleration of a degenerative condition, seven years wage loss, all to the past (January 1996 to January 2003) would be a fair award. Counsel submitted that the pursuer would have remained employed by AMCO. Accordingly the seven years loss should be calculated using the wage levels set out in paragraph 14 of the Joint Minute, but deducting earnings of £277.82 net per week received from R & E Kirwan Ltd. If however the court were of the view that the pursuer would not have remained employed with AMCO, the appropriate multiplicand was £15,244 net per annum, as set out at page 8 of the report by the employment expert Dr. Banks, number 6/19 of process. [136] As for necessary services (section 8 of the Administration of Justice Act 1982), the court was invited to take a broad approach. The pursuer's wife had provided emotional support. She had driven the pursuer to appointments. The pursuer had been unable to do DIY. His wife and brother had done such jobs for him (including building work). Counsel submitted that Mrs. Johnson's services should be valued at £500 per annum. The brother's services should be valued at a lump sum of £2,000. Reference was made to McFall v West Dunbartonshire Council, 1999 S.L.T. 775. [137] In relation to loss of the pursuer's personal services (section 9 of the Administration of Justice Act 1982), counsel invited the court to award damages of £2,000.Alternative valuation based on an acceleration of symptoms by one to two years
[138] If the court were to accept Mr. McMaster's approach of an acceleration of one to two years, damages for solatium should reflect a period of pain and suffering of 18 months (January 1996 to mid-1997). An appropriate award would be about £5,000, with interest at 4 per cent during January 1996 to mid-1997, and 8 per cent from mid-1997 to date. Wage loss should be calculated using paragraph 14 of the Joint Minute, the same approach to interest being adopted. Services would be fairly assessed at £500 each in respect of Mrs. Johnson's services, the brother's services, and the loss of the pursuer's services. Interest on those sums would run at 8 per cent from mid-1997.Submissions on behalf of Scottish Coal: damages
Valuation based on an acceleration of symptoms by one to two years
[139] Senior counsel for Scottish Coal submitted that the opinion of Mr. McMaster should be preferred, and the claim valued on the basis of an acceleration of one to two years. Solatium should therefore be assessed at about £5,000. Wage loss should be calculated on the basis of 18 months, namely about £28,500 net, under deduction of sick pay of about £11,500 received from AMCO (and not requiring to be repaid), bringing out a total of £17,000. Services should be valued at £200 in respect of each of Mrs. Johnson and the pursuer's brother (section 8), and £200 in respect of the loss of the pursuer's personal services (section 9). Interest should run on each award at 4 per cent during the 18 months, and thereafter at 8 per cent.Alternative valuation based on an acceleration of symptoms by five to ten years
[140] If, contrary to counsel's submission, the court preferred the evidence of Mr. Beauchamp and Dr. Farquharson, there was no disagreement with the pursuer's counsel's approach to quantifying solatium and services. However in relation to wage loss, Mr. Blundell, Scottish Coal's first witness, had given evidence that AMCO's work force had been reduced from 2,142 in 1991 to 485 in 2000, and further reduced to 145 in 2002. That factor should be taken into account. By 2001, the pursuer might well not have been working with AMCO at the mine. The symptoms caused by his degenerative condition would gradually have been developing. Counsel submitted that in all likelihood the pursuer would have left AMCO by about 1998, and returned to England to take up, for example, tunnelling work. The figures in the Joint Minute should be discounted to reflect that factor.Decision: damages
[141] As noted in paragraph [89] above, I concluded that there had been an acceleration of the symptoms of a previously asymptomatic degenerative condition by one to two years. [142] That being so, there was little dispute between the parties as to the appropriate quantification. Had I been awarding damages, they would have been as follows:
Solatium |
£5,000 |
|
Interest January 1996 to July 1997 (4%) |
£300 |
|
Interest 1 August 1997 to date (8%) |
£2,866 |
|
Wage loss |
£17,000 |
|
Interest January 1996 to July 1997 (4%) |
£1,020 |
|
Interest 1 August 1997 to date (8%) |
£9,745 |
|
Services: Mrs. Johnson (section 8) |
£500 |
|
Interest January 1996 to July 1997 (4%) |
£30 |
|
Interest 1 August 1997 to date (8%) |
£286 |
|
Pursuer's brother (section 8) |
£500 |
|
Interest 96/mid-97 (4%) |
£30 |
|
Interest mid-97 to date (8%) |
£286 |
|
Pursuer (section 9) |
£500 |
|
Interest 96/mid-97 (4%) |
£30 |
|
Interest mid-97 to date (8%) |
£286 |
|
Total interest |
£14,879 |
£14,879 |
Total damages (including interest) |
£38,379 |
Conclusion
[143] For the reasons given in paragraphs [107] et seq. above, I shall repel the pursuer's first and second pleas-in-law, sustain the second and third pleas-in-law for Scottish Coal, and grant them absolvitor. I should add that it is in my view an unacceptable work practice to await the return of an injured employee before attempting the completion of a formal accident report and before putting in train a full investigation into the circumstances of the accident, including speaking to eye-witnesses, speaking to the injured employee (if well enough) by telephone if necessary, visiting the site where the accident is understood to have occurred and making measurements, photographs and diagrams. There are many cases where an injured employee is taken away, and is unable to return to work or to be interviewed face-to-face for some weeks. During the employee's absence, vital information and evidence may be lost, altered or obscured. In my view it is the duty of those with responsibilities for the health and safety of others immediately to carry out as comprehensive and as thorough an investigation as possible.