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Cite as: [2004] ScotCS 266

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Bruce v. Shetland Islands Council [2004] ScotCS 266 (16 December 2004)

OUTER HOUSE, COURT OF SESSION

A1636/02

OPINION OF LORD JOHNSTON

in the cause

IAN WILLIAM BRUCE

Pursuer;

against

SHETLAND ISLANDS COUNCIL

Defenders:

________________

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

Defenders: Thomson, Ledingham Chalmers

16 December 2004

[1] In this action of reparation relating to an alleged accident at a quarry in Shetland in July 1999, the parties agreed every issue between them except whether or not such an accident had occurred on the date and at the place in question. On the assumption that I held it proved that the pursuer injured his back while manhandling a barrel of chemicals, the defenders accepted that they would be liable in terms of the relevant statutory Regulations, there being no defence offered. Parties were also agreed that in the event of my finding for the pursuer, damages should be assessed in the net sum of £5,000.

[2] The pursuer's averments are important and are as follows in condescendence 2:

"On or about 2^nd July 1999 the pursuer was working in the course of his employment as a road worker with the defenders at their premises at Scord Quarry, Scalloway, Shetland. On or about 2^nd July 1999 the pursuer was instructed by the manager of the quarry, William Butler to move 40 barrels of chemicals which had been delivered to the quarry to the emulsion plant in the quarry. The barrels were 45 gallon barrels. The pursuer was instructed to move the barrels with Neil Pottinger and Tam Halcrow. Each barrel was heavy and difficult to manoeuvre. Each barrel was approximately one metre high and 0.75 metres in diameter. Each barrel weighed in the region of 200 kgs. The barrels required to be lifted over a wall which surrounded the emulsion plant. The wall was approximately 0.75 metres high. When lifted over the said wall the barrels were rolled next to the emulsion plant. The barrels had to be stored on their end in an upright position. The pursuer required to manoeuvre one of the said barrels which was lying on its side into the upright position once it was next to the emulsion plant. As the pursuer was lifting the said barrel he sustained an injury to his back causing the loss, injury and damage hereinafter condescended upon."

[3] It also has to be noted that in the original summons, the date of the accident was said to be 4 July 1999 rather than the now averred 2 July 1999, a point not without significance.

[4] I heard a short proof at which the pursuer gave evidence supported by a precognition agent of his instructing solicitors, who deponed to notes she had taken in a telephone interview with one of the two persons mentioned on record now deceased, namely Pottinger. A fellow employee Brian Cooper was also led but he had left the plant by the time of the alleged accident. Finally, evidence was led from Dr Lalla who had treated the pursuer when he attended the Accident and Emergency Department of the Gilbert Bain Hospital on 6 July 1999. The relevant entry is to be found amongst other places on page 8 of the general practitioner's notes, and I shall return to that document in due course. The defenders led one witness, namely the William Butler referred to on record.

[5] The pursuer was not a very convincing witness. He was hesitant and at times not very coherent, although that could have been attributable to nerves. He is grossly overweight and was apparently so at the time of the alleged accident.

[6] As regards the accident he stated that although he was normally a dumper driver, he was instructed by Butler to assist in the movement of barrels of chemicals which, according to Butler's evidence, had been delivered some time before to the plant. What the pursuer said he was doing along with Pottinger was manhandling the barrels over a small wall which can be seen in the photographs (No.6/3 of process), into a bunded area. Thereafter, he manoeuvred or rolled a barrel across the concrete to a small heating plant contained in a box type shed. In order to put the chemical onto the heater, he stated that he was required to raise the barrel into an upright position and then manoeuvre it a very slight height, merely inches, onto the relevant steam pipes. He stated that while he was doing this, he felt a sharp pain in his back, causing him to fall backwards and the barrel landed on top of him. Thereafter the pain in his back persisted. He went home and rested for both Saturday and Sunday, he having stated that the accident took place on Friday 2 July and thereafter sought medical help culminating in his visit to the hospital on the Tuesday to which I already made reference.

[7] At this stage, it is appropriate to comment upon the discrepancies in dates between the original summons and that now averred and between the averments and the pursuer's evidence. Those discrepancies are as follows. (1) no mention of Halcrow being involved; (2) no mention of falling or slipping, (3) no mention of the heating process at which the pursuer said he was working at the time when he felt the pain in his back.

[8] Under cross-examination the pursuer insisted the accident had taken place on the Friday and was unable to offer any explanation for the reference in the hospital records to "two days before", from the following Tuesday. He could offer no explanation for the original date being 4 July in the summons. He accepted that he reported the accident to nobody at the plant at the time, least of all Butler and he was not even aware of the existence of an accident book. He initially returned to work after some fourteen days but remonstrated with Butler when he was asked to do a particular job, blaming his back, with the result Butler determined that if he could not do that particular job, he was not to do any. He subsequently left the employment of the defenders. He accepted also that at the later date, namely when he initially returned to work, he still made no complaint as to the cause he was alleging of the injury to his back when the matter was discussed with Butler. He stated that in due course while in hospital, he met a Council safety officer who advised him that he could make a claim. He said this was the first time he was aware of this and he thereafter contacted his union who took the matter up. The pursuer did mention that he had written dates down on an envelope which confirmed his own recollection but that envelope was not produced nor otherwise referred to.

[9] The evidence of Miss Wendy Gordon was simply to confirm the text of her hand-written notes of her interview with Pottinger dated 5 February 2002, (No.6/2 of process). The most significant part of her evidence was that the notes contain a reference to the barrels having been placed over the wall by a bucket or mechanical shovel which, incidentally, was the way Butler deponed he would have expected the job to have been done.

[10] Mr Brian Cooper gave general evidence which added nothing to the case.

[11] As I have indicated, the last witness was Dr Lalla who spoke to the entry to which I already made reference. He deponed that the information contained therein would have bound to come only from the pursuer which included, of course, the reference to "two days before". He confirmed that the pursuer was seriously overweight and that his back must be constantly at risk having to support such a wide girth. So far as he could recollect, he never saw the pursuer again. He was not cross-examined.

[12] The evidence of Mr Butler, to some extent, attended to general matters as to how the quarry operated. When it came to the particular circumstances of the alleged accident, he accepted that he instructed the pursuer to take part in the exercise but beyond that thought nothing more about it. Certainly he was not contacted at any time either on the day or subsequently to suggest that he had been responsible in giving the instruction to move the barrels for any injury sustained by the pursuer. It was a considerable time later, months if not a year, before he heard through a third party that he was perhaps being blamed and might be sued. He thought little about it, recognising that his employer would have to accept responsibility. He did however affirm it through the diaries presented in process that Halcrow was not present at the works on the Friday. He had a bad sickness record and was frequently off.

[13] Against that background, counsel for the pursuer's submission was very simple. The pursuer, although not entirely convincing, should be regarded as a credible if not wholly reliable witness but sufficiently reliable on the substance of the matter for me to hold that the pursuer injured his back while manhandling the barrel. That was all the pursuer had to establish given the general agreement between the parties on other matters, admitting liability in that context. He had to accept the discrepancies between the pleadings and the way the pursuer described the accident in evidence and equally the problem relating to the dates but the submission was that the pursuer should be believed when he stated that he was injured on the Friday, although there may be contrary assertions made by other people including the doctor. He undoubtedly had suffered a back injury consistent with the mechanism that he described and that should be sufficient for him to succeed. Reference was made in passing to Ellison v Inspirations East Limited 2003 SLT 291 as to the relevance of statements taken from persons now deceased in the context of Miss Gordon's evidence. In the final analysis, counsel submitted that the pursuer's case was very simple and should succeed on its substantial points.

[14] Counsel for the defenders obviously concentrated on the discrepancies which I have already enumerated but criticised the way the pursuer gave his evidence in fact. While he did not suggest that the pursuer was a liar, he said he was wholly unreliable both in this respect and also in the fact that he virtually completely departed from the averments on record under cross-examination. While he accepted he had sustained the strain to his back, it could not be attributed reliably to the mechanism which the pursuer had described, nor in relation to the suggested time and place.

[15] In seeking to resolve this matter, I have to reassert that I found the manner in which the pursuer gave his evidence was very un-reassuring and the extent to which he appeared to have a selective memory in certain aspects, even more concerning. In this respect I refer particularly to the various versions of events given as regards dates and the presence or otherwise of Halcrow. I also fail to understand how the record makes no reference to falling or slipping if that was an essential part of the mechanism of the accident, it being caused by the pain in the back rather than vice versa.

[16] I consider the approach by counsel for the pursuer to be attractive on a superficial basis but it cannot be sustained when the case is examined in more detail. There are too many discrepancies between the record and the evidence given by the pursuer for me to be able to hold that his account is reliable and should be accepted. I am quite prepared to accept given the hospital notes that a strain to his back occurred at some stage prior to going to the hospital but I am not even prepared to assert that it occurred at work as described nor on the Friday. I recognise that the hospital notes must relate to what Dr Lalla was told but that is not enough to overcome my general doubts about the pursuer's reliability. In this respect I consider the absence of complaint or reporting is highly significant. Human nature would suggest that if a person is injured at work carrying out an instruction given to him by his employer, doing something he was not normally employed to do to which he attributes an immediate injury, he would be bound to make a complaint at once or at least very shortly thereafter. I have no doubt in my own mind that the pursuer by now has convinced himself that the injury was caused in the way he described but that is not sufficient. While the burden of proof is on the pursuer and is not a very high one, I do not consider that he has discharged it and I am not prepared to hold that he was injured at work in the way he describes on Friday 2 July 1999.

[17] In these circumstances I shall sustain the defenders' second and third pleas in law and grant decree of absolvitor.