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Margaret Ann Haddow v. Glasgow City Council [2005] ScotCS CSOH_157 (23 November 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 157

PD1072/04

OPINION OF LORD MACPHAIL

in the cause

MARGARET ANN HADDOW

Pursuer;

against

GLASGOW CITY COUNCIL

Defender:

________________

Pursuer: Skinner; Balfour & Manson

Defenders: Dunlop; Edinburgh City Council

23 November 2005

Introduction
[1] The pursuer sues the defenders for damages for personal injuries which she attributes to an accident she sustained in the course of her employment with them. She avers that she slipped and fell on a wet floor which she was cleaning, and she blames the defenders for having failed to provide her with "non-slip footwear" or, if they did provide such footwear, for having failed to take any steps to ensure that she wore it. The defenders say that they provided her with suitable footwear which she declined to accept, and that at the time of the accident she was wearing boots of her own "which were suitable and had non-slip soles." The pursuer claims that as a result of the accident she suffered not only pain but a major severe depressive disorder which continues to disable her from working. The defenders reply that she had a significant history of depressive illness before the accident, and she should not have required any more than three months off work to recover from any physical injuries she sustained.

The accident
[2] The immediate circumstances of the accident itself are not in dispute. The pursuer was employed by the defenders as a cleaner. She was based at the Shieldhall Cleansing Depot in Govan. Her duties involved the cleaning of common stairs and closes in tenement property owned by the defenders and occupied by their tenants. Each close was cleaned by a team of two cleaners. One brushed down the stairs and the close from top to bottom. The other cleaner had a bottle containing a solution of water and detergent. The other cleaner followed the brusher, spraying from the bottle the areas which had been brushed, then mopping them. The accident happened on 29 July 2003. The pursuer and another cleaner named Nicholas Ball were working in the close at 7 Tormore Street, Glasgow. The pursuer was the brusher: she brushed the stairs from top to bottom and the close out to the close-mouth. Nicholas Ball was coming down the stairs, spraying and mopping the areas she had brushed. Having finished her brushing, the pursuer, in accordance with practice, assisted Nicholas Ball by taking the bottle from him on the first landing and spraying the close. The close was floored with linoleum-like material up to a few feet from the entrance. At the entrance there were two steps up to a door. The steps and the floor of the close at the entrance were laid with smooth tiles, there being six rows of tiles on the floor. The pursuer, having sprayed the tiles in front of the door, turned to push the door. When she did so, her feet slipped on the wet tiles and she fell backwards, striking her left lower back on the outer edge of one of the steps. She also hurt her left elbow.

Liability
[3] On averment the pursuer's claim is based on the defenders' alleged breach of their common law duties to take reasonable care and their alleged breach of their statutory duties under regulations 4 and 10 of the Personal Protective Equipment at Work Regulations 1992 ('the Regulations'). At the hearing on evidence the pursuer's counsel founded only on the Regulations. The defenders contended that the pursuer had failed to prove that they had been in breach of the Regulations and that, but for that breach, she would not have sustained the accident.

[4] Regulation 4(1) provides, so far as material:

"(1) [ . . . ] every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective."

Regulation 10(1) provides:

"(1) Every employer shall take all reasonable steps to ensure that any personal protective equipment provided to his employees by virtue of regulation 4(1) is properly used."

It was common ground between the parties that the work of cleaning the closes with a solution of water and detergent exposed the defenders' employees such as the pursuer to the risk to their safety of slipping and falling on the wet surfaces of the floors. The pursuer claims that the defenders failed to provide her with suitable protective equipment in the shape of safety footwear and thus were in breach of regulation 4(1); and that in any event they did not take any steps to ensure that any equipment they provided was properly used and thus were in breach of regulation 10(1). The defenders deny that they were in breach of the Regulations and maintain that they did not require to provide personal protective equipment in terms of regulation 4(1) because the risk to the pursuer's safety of slipping and falling on wet surfaces was adequately controlled by other means which were equally effective, namely by the pursuer's wearing suitable footwear of her own.

[5] The first issue is whether the defenders provided the pursuer with suitable safety footwear. The pursuer avers that when she began her employment with the defenders in May 2003 (the correct date is June 2003) the area supervisor, Robert McGinley, did not provide her with any safety footwear because none was available in her size. Thereafter she raised the issue with him on a regular basis. After she had been working for about four weeks, Robert McGinley offered her a pair of size 9 boots which she declined because they were too big for her: she takes a size 8. The defenders' account of this matter on averment is that at the commencement of her employment she was provided with a pair of size 8 boots which fitted her. She declined to accept them because she did not like wearing boots, and she asked to be provided with shoes instead. The defenders ordered a pair of shoes, but the accident occurred before they arrived.

[6] The only evidence on this subject comes from the pursuer herself and from Robert McGinley, who gave evidence for the defenders. The pursuer said she was never issued with safety footwear. She asked Robert McGinley for size 8 shoes and he told her there were none in stock. She was offered size 9 boots about a week and a half before the accident, but she did not take them because they were too big. If she had been offered footwear in her own size, she would have had to wear it. Robert McGinley's evidence was taken on commission on 1 September 2005, prior to the proof which commenced on 4 October 2005. He said that the pursuer was offered a pair of boots, size 8 or 9, and she requested a shoe. The storeman said he would order shoes. There were boots available for her in her size. The Council always carried a selection of size 8 boots. It is not disputed that boots of the kind carried by the Council, of which the pair in No.6/16 of process are an example, would have satisfied any requirement in terms of regulation 4(1) for the provision to the defenders' employees such as the pursuer of suitable personal protective equipment.

[7] The pursuer did not impress me positively as a credible and reliable witness on this issue. I take into account that her demeanour may have been affected by the fact that she has some depressive symptoms, but nevertheless her manner of giving evidence on this matter was rather flat, and not such as to convince me that reliance could be placed on her testimony. The evidence of Robert McGinley, on the other hand, gives the impression that as a witness he was coherent and gave his evidence without evasion or hesitation. He was unshaken in cross-examination. While it is difficult to compare a witness seen in the witness box with a witness whose evidence is available only in the form of a transcript, I have concluded that I am not persuaded that I should accept the evidence of the pursuer on this matter. Accordingly I find that it is not proved that the defenders failed to provide the pursuer with suitable safety footwear at the commencement of her employment with them. I am satisfied that the defenders offered her a pair of boots in her size, that she declined to wear them and that she asked for a pair of shoes, which were not then available.

[8] The next issue is whether, as the defenders maintain, the risk to the pursuer's safety was adequately controlled by other means which were equally effective, that is, by the pursuer's wearing footwear which was suitable for her work. If the risk was so controlled, the duty under regulation 4(1) would not arise. The defenders say, in Answer 4 in the record as finally amended, that while the shoes ordered by the defenders were awaited, "the pursuer chose to wear her own 'Nike' boots, which were suitable and had non-slip soles." The pursuer denies that. The defenders also say, in Answer 6:

"Explained and averred that the pursuer was provided with, but declined to accept, safety boots issued by the pursuer [sic: read 'defenders']. She chose instead to wear her own 'Nike' boots. Those boots were suitable and had non-slip soles. The wearing of safety boots such as those provided by the defenders in place of the 'Nike' boots which were in fact worn by the pursuer would have made no difference with regard to the accident complained of."

The pursuer replies, by an amendment allowed at the commencement of the proof:

"Esto the pursuer was offered safety boots (which is denied) the defenders took no steps to ensure that she wore such footwear. The pursuer was wearing footwear at the time of the accident which had a sole which did not provide the grip which should have been offered by suitable safety footwear."

[9] Before investigating the factual question of what footwear the pursuer was wearing at the time of the accident, it will be convenient to examine how that footwear has been described in the course of the litigation. The pursuer's pleadings have always contained the critically important averment, "Had the defenders provided the pursuer with non-slip footwear, said accident would not have occurred." After the record was closed, the defenders understood that the pursuer had been wearing "Timberland" boots. On 10 June 2005 they lodge a minute of amendment adding to Answers 4 and 6 the averments quoted above, except that the word "Timberland" appeared where "Nike" now appears. They also lodged an application under Section 1 of the Administration of Justice (Scotland) Act 1972 for the inspection of the "Timberland" boots worn by the pursuer at the time of the accident. An order for inspection of the boots was made by the Lord Ordinary on 15 June 2005, but on 24 June 2005 the pursuer's solicitors wrote to the defenders' solicitors a letter (No.7/2 of process) which stated, amongst other things:

"At no time has she [the pursuer] had Timberland boots. She did have a pair of Nike boots but these wore out about a year ago and were put in the bucket."

On 29 June 2005 they wrote a further letter (No.7/3 of process) stating:

"Accordingly [sic] to our client, she was wearing the Nike boots at the time of the accident. The boots look similar to the Timberland boots you described as we understand it."

Thereafter the defenders changed the word "Timberland" in their averments to "Nike". It will be seen that the pursuer's agents described the Nike boots as looking similar to the Timberland boots. It was not then suggested that the Nike boots had a smooth sole.

[10] On 1 September 2005 the witness Robert McGinley was examined on commission, as I have already noted. He said that at the time of the accident the pursuer had been wearing a "light tan sort of Timberland boot". Asked to describe the sole, he said, "It's a very rugged sole, as in all Timberland boots, just a thicker sole." He was not challenged in cross-examination to the effect that the pursuer's boots did not have rugged soles but had smooth soles.

[11] About a week before the proof the pursuer lodged a pair of boots (No.6/15 of process) which are not Nike boots and which have smooth soles. At the commencement of the proof, as I have said, the pursuer was allowed to make the amendment quoted at the end of paragraph [8]. The minute of amendment was altered in manuscript before it was lodged. The second sentence originally read:

"The pursuer was wearing footwear at the time of the accident had [sic] a relatively smooth sole and which did not provide the grip which should have been offered by suitable safety footwear."

[12] It is also necessary, before investigating the question of what the pursuer was in fact wearing, to discuss an objection to the line of evidence which was taken by the defenders at an early stage in the pursuer's examination-in-chief. I repelled the objection, and at the hearing on evidence counsel for the defenders asked me to state my reasons in this opinion. The pursuer, having given evidence that she had not been issued with safety footwear and had been told that the shoes she preferred were not in stock, was asked: "What did you do, then, about the footwear?". Counsel for the defenders objected to the line of evidence. He pointed out that the pursuer had undertaken to prove that if the defenders had provided her with their safety footwear the accident would not have occurred. The defenders for their part were maintaining that the wearing of such footwear in place of the boots which were in fact worn by the pursuer would have made no difference. What she had been wearing at the time of the accident was thus a critical matter, and it was objectionable that the pursuer was about to adduce parole evidence about it. She had not produced the footwear she had been wearing. It was expected that she would describe that footwear and say that it was similar to the recently lodged pair of boots, No.6/15 of process, which had been purchased from Next. That offended against the best evidence rule. Counsel relied on W G Dickson, The Law of Evidence in Scotland (3^rd edn, 1887, ed P J Hamilton Grierson), paragraphs 195, 196, 203 and 227; Japan Leasing (Europe) Plc v Weir's Trustee (No.2) 1998 SC 543 at 546H-547B; and Scottish & Universal Newspapers Ltd v Gherson's Trustees 1987 SC 27 at 46-48, 50-52 and 53-54.

[13] Counsel for the pursuer accepted that a party must produce the best available evidence, and that secondary evidence should not be allowed where primary evidence had been destroyed through the fault of the party tendering the secondary evidence. The question was whether the opposing party would be prejudiced: Stirling Aquatic Technology Ltd v Farmocean AB (No.2) 1996 SLT 456. Here, the pursuer's shoes had been worn out about Christmas 2004. She had not deliberately destroyed them in order to gain an advantage. The nature of her footwear had not been put in issue by the defenders in the record as it then stood (No.12 of Process, dated October 2004). They had raised the issue only in their minute of amendment lodged on 10 June 2005 (referred to at paragraph [9] above). The pursuer would have been culpable only if she had destroyed the shoes thereafter. Further, at the commission to take the evidence of Robert McGinley the defenders' counsel had asked the witness in cross-examination to describe the footwear the pursuer was wearing at the time of the accident (report of commission, No.20 of process, pages 11-12). The pursuer's counsel now sought to gainsay the witness's evidence. The objection should be repelled.

[14] In my opinion the "best evidence rule" is not a general exclusionary rule of evidence but a counsel of prudence. Since it would not be appropriate to discuss the matter at length in this opinion, I shall state my views briefly. In Title I of Part III of Dickson's work, headed "Of the rule that requires the best evidence", he describes as "the one primary rule of evidence" the rule "that a party must adduce the best attainable evidence of the facts he means to prove" (paragraph 195). Dickson was no doubt influenced, as were the nineteenth-century writers on evidence whom he cites in the footnote to that sentence, by the first important treatise on evidence in English, Gilbert's The Law of Evidence (1754), which attempted to state the best evidence rule as a single unifying principle or basis for the whole law of evidence. That only created difficulties, however: thus, certain categories of hearsay were excluded although they might be the best evidence attainable in the circumstances. Dickson himself qualified the rule in paragraphs 195, 197 and 199: for example, it was not the law that circumstantial evidence was excluded if direct evidence was available (paragraph 199). Jeremy Bentham repudiated the best evidence principle as a ground for the exclusion of evidence, and Sir James Fitzjames Stephen in his influential Digest of the Law of Evidence (1876) substituted the doctrine of relevancy for the best evidence rule as the unifying principle of the subject (see W Twining, Rethinking Evidence (1990), chapter 3). Debate on the theoretical basis of the law of evidence continues (W Twining, supra; D A Nance, "The best evidence principle" (1988) 73 Iowa Law Review 227; E J Imminkelreid, "The worst evidence principle: the best hypothesis as to the logical structure of evidence law" (1992) 46 University of Miami Law Review 1069). In practice, it appears that in England the rule now survives, if at all, only in vestigial form (Phipson on Evidence (15th edn, 2000), paragraph 6-22; Halsbury's Laws of England (4^th edn), vol 17(1) (reissue, 2002), paragraph 412; R Munday, Evidence (2^ndedn, 2003), paragraph 1.11). In Scotland it is not the law that it is a fundamental condition of admissibility that evidence tendered must be the best attainable. The governing principle is not that the evidence must be "the best", but that it must be sufficiently relevant to an issue in dispute and must not infringe any of the exclusionary rules (A G Walker and N M L Walker, The Law of Evidence in Scotland (2^nd edn, 2000), paragraph 1.1.1). Thus, when an objection to the admissibility of evidence is taken, the first question to be resolved is whether the evidence is sufficiently relevant to an issue in the litigation. If it is, it is admissible unless any exclusionary rule applies. If such a rule applies, the next question is whether the evidence comes within any exception to that rule. If no exclusionary rule applies, or if the evidence falls within an exception to an applicable rule, the evidence is admissible. It is of course wise for a party to tender to the court the best evidence reasonably available to him on a factual issue in dispute, but that is a counsel of prudence, not a rule of evidence.

[15] There are specific exclusionary rules of the common law, sometimes unnecessarily expressed in terms of "the best evidence rule", as to the production of real evidence, the exclusion of hearsay, and the inadmissibility of secondary evidence of a document not produced. Thus in the first edition of A G Walker and N M L Walker, The Law of Evidence in Scotland (1964), the only entries in the index under "Best Evidence Rule" are "article not produced", "hearsay" and "document not produced"; and these are the only examples of the "rule" which are offered in both the first and second editions of the work (lst edn, page 243, 2^nd edn, page 307). Each matter, however, is governed by the relevant specific exclusionary rule and not by any general "best evidence rule". The specific rules have different origins and different rationales. The rule against hearsay, for example, is a discrete rule of evidence and predates Gilbert's best evidence rule (Stair, IV, 43, 15). The rule excluding secondary evidence of the terms of a document takes account of the fallibility of the memory or observation of witnesses (Dickson, paragraph 204) and the scope for inaccuracy by a copyist (Dickson, paragraph 227). Japan Leasing (Europe) Plc and Scottish & Universal Newspapers Ltd are examples of the application of that specific common law rule and are not apposite to the present objection, which is concerned with the admissibility of oral evidence describing an article which has not been produced. The evidence tendered is obviously relevant to the issue of the nature of the soles of the pursuer's footwear. Any support for its exclusion in the present case should have been sought in the authorities on the production of real evidence at proof. I am unable to sustain the objection on the basis of the authorities cited.

[16] At the same time I cannot agree with the submission for the pursuer that the condition of the pursuer's footwear was not in issue until the defenders raised it in their minute of amendment. In the record of October 2004 the pursuer avers: "Had the defenders provided the pursuer with non-slip footwear, said accident would not have occurred." That averment remains in the present record. It can only mean that the accident occurred because the pursuer was wearing footwear which was not non-slip footwear. In a case of this kind it is for the pursuer to establish that the measures she desiderates would probably have prevented the accident (Porter v Strathclyde Regional Council 1991 SLT 446 at 448F; see also Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26, Lord Reid at 31). It is therefore for the pursuer to demonstrate how the footwear she was wearing differed from the footwear she says the defenders should have supplied and to persuade the Court that the accident would probably not have happened if she had been wearing the latter and not the former. It would accordingly have been prudent, to say the least, for the pursuer to preserve the footwear she was wearing and produce it in court for examination and comparison by skilled witnesses with the defenders' footwear No.6/16 of process. The pursuer gave unchallenged evidence that her legal advisers had not advised her to keep the footwear. I assume, therefore, that she was not to blame for disposing of it as and when she did. The question whether in these circumstances parole evidence describing the footwear is admissible could be satisfactorily resolved only upon a full consideration of the appropriate authorities. In the absence of a discussion of these authorities I decided that the pursuer's failure to produce the footwear was excusable and oral evidence describing it was admissible; but the fact that it had not been produced might diminish the weight of the oral evidence, depending on the circumstances. I accordingly repelled the objection.

[17] In the event, the evidence in support of the pursuer's averment about the soles of her footwear was unsatisfactory. The objection having been repelled, the pursuer went on to say that from the commencement of her employment with the defenders she had worn her own footwear. She described her footwear as a pair of boots which she had owned for about six months before she started her work with them. She said they were not Timberland boots. Her partner, John Stipanovski, had bought them for her as a gift. They had no tread on the sole. For the purposes of the proof she had bought a pair of boots from Next which were as similar as possible to them: these were No.6/15 of process, which had no tread at all. In cross-examination she described the boots she had been wearing at the time of the accident as "copy Nike boots". She was shown a photograph of a Nike boot with a patterned sole (No.7/10 of process) the caption of which read, "built to handle every variety of weather and terrain [ . .. ] A durable solid rubber outsole compound and lug pattern ensures maximum traction over turf and terrain." She said that the boots in the photograph were nothing like the ones she had.

[18] Mr Stipanovski deponed that he had bought the boots at The Barras (the notable Glasgow market place) for £10 around Christmas 2002. They were copy Nike trainers, and the soles were similar to those of No.6/15 of process. I did not find him a convincing witness. He seemed anxious to assist the pursuer. In a somewhat blustering manner he asserted, without any prompting, that the boots worn at the time of the accident had been thrown out after the defenders had made the pursuer an offer and it was understood that the case was going to settle. This assertion was not persuasively made and was not supported by any other evidence. He also said that he was not aware that the pursuer had suffered depressive symptoms before the accident: in view of the clear evidence that she did, which I shall discuss later, his evidence on that point is also unacceptable. I accordingly was not prepared to accept his evidence on any matter on which he was the only witness.

[19] The evidence of other witnesses about the pursuer's boots was all to the effect that they had a tread. Nicholas Ball, who was working with the pursuer at the time of the accident, said that her boots were like the Timberland boots in the photograph No.7/9 of process. These have a patterned sole, described in the caption as "rubber lug outsole for traction and durability". Other fellow employees, James Wilkie and Stephen Birnie, also described them as similar to the boots in No.7/9 of process. The evidence of those three witnesses appeared to me to be credible and reliable. I have already referred in paragraph [10] to the unchallenged evidence of Robert McGinley that the pursuer's boots had "a very rugged sole".

[20] In relation to the evidence of Robert McGinley I should add that I have found in the process a sealed envelope to which my attention was not drawn at the proof. If had been, I would have opened it and invited submissions upon its contents. The envelope is marked "Confidential Report by Commissioner in M A Haddow v Glasgow City Council." It contains a note by the Commissioner in the following terms:

"On Thursday 1^st September 2005, at the conclusion of the Commission in the above action I was asked to provide a Note on the credibility of the witness Robert McGinley. In accordance with that request I now advise as follows:

The witness gave his evidence in a straightforward manner. His demeanour was normal and unremarkable. In my view he should be regarded as a credible witness."

This assessment is consistent with the impression which I had already formed when reading the transcript of the witness's evidence and which I have recorded in paragraph [7]. As I have noted above, his evidence about the pursuer's footwear is supported by that of other witnesses. I consider that in these circumstances it is of no practical consequence that the parties did not have an opportunity to comment on the Commissioner's report at the hearing on evidence.

[21] The way in which the pursuer's boots were described in the course of the litigation provides a further reason to reject the evidence of the pursuer about their soles. In their letter of 24 June 2005 to which I have already referred in paragraph [9], the pursuer's solicitors described the boots as "Nike boots", not as "copy Nike boots". In their letter of 29 June 2005, also referred to in the same paragraph, they say the boots "look similar to the Timberland boots you described". There is no evidence that Timberland boots have smooth soles. It may be inferred from the conduct of responsible counsel in refraining from cross-examining Robert McGinley as to his description of the pursuer's boots that at the time of the commission there was no intention to contradict such evidence or to prove that the pursuer's boots had smooth soles (McKenzie v McKenzie 1943 SC 108 at 109). The boots the pursuer bought from Next (No.6/15 of process) were lodged shortly before the proof, and it was only at the commencement of the proof that the pursuer's averment about the soles of her footwear took its final form (see paragraphs [8] and [11]).

[22] Having considered all these matters, I have decided that I cannot accept the evidence of the pursuer and Mr Stipanovski that her boots had smooth soles. I prefer the evidence that she was wearing boots which had a rough or patterned outsole. The question which must now be considered is whether it is proved that the accident happened because the pursuer was wearing these boots and not boots like No.6/16 of process, such as were provided by the defenders. In the language of regulation 4, it is for the pursuer to prove that the risk to her safety of slipping and falling on wet surfaces was not adequately controlled by means at least as effective as the provision of boots like No.6/16 of process, that is, by the pursuer's wearing of the boots she was wearing.

[23] It is therefore necessary to investigate as precisely as possible what it was that caused the pursuer to slip and fall. Such an investigation cannot be undertaken, however, in the absence of precise information about the pursuer's footwear. The slip was caused by the interaction of the wet floor and the sole or soles of the pursuer's footwear. It is possible to ascertain, in broad terms, the slip resistance of the floor; but it is not possible to ascertain the type of boot the pursuer was wearing, the material of which the soles were made, the tread pattern on the soles, and the extent to which the soles were worn. Two skilled witnesses gave evidence. The pursuers led the evidence of Mr John Stewart, a former H M Inspector of Factories who is now a safety consultant; and the defenders led Mr S L Greasly, also a former H M Inspector of Factories and now an engineering consultant who advises companies in the area of health and safety. Mr Stewart produced a report (No.6/14 of process). He examined an example of the footwear carried by the defenders and expressed the opinion that they had a good tread and would reduce the risk of slipping. He accepted the pursuer's description of the footwear she had been wearing and said that it had no tread and on a wet surface would increase the risk of slipping. He also said that boots similar to Nike boots were likely to have had a wide tread pattern and, depending on their age, any slip resistance characteristics might be lost. He had not been to the scene of the accident and had not measured the slip resistance of the floor. He conceded that it was necessary to know the nature of the two materials which were interacting at the time of any slip. He had not examined either of them. In view of his assumption about the nature of the pursuer's footwear, which is not supported by my finding on that matter, and his failure to examine the floor, I considered his evidence to be of very limited value. It is not difficult to appreciate that a person would be more likely to slip on a wet floor if wearing footwear with no tread instead of footwear identical to the defenders' pair (No.6/16 of process).

[24] I was favourably impressed by the evidence of Mr Greasly. He produced a comprehensive illustrated report on the floor and on the subject of footwear (No.7/8 of process). He found that the floor had a marginal or moderate potential for slipping when wet, rather than a dangerous or high potential, and that the defenders' boots (as in No.6/16 of process), which he also examined, were suitable for the type of work being undertaken by the pursuer. As to the pursuer's footwear, he said that if she was wearing copy Nike boots, they might be expected to have a sole pattern that mimicked a Nike pattern, and the sole material might be expected to be in the intermediate category of "less slippery" rather than "most slippery" or "least slippery" when combined with tiles such as those on which the pursuer slipped. On the assumption that the pursuer was wearing such boots, it was unlikely that she would have obtained any significantly greater protection from slipping if she had been wearing boots like No.6/16 of process. I found the evidence of Mr Greasly to be measured, persuasive and convincing.

[25] I therefore find that it is not proved that the accident happened because the pursuer was wearing her own footwear and not boots such as those carried by the defenders (No.6/16 of process). Nor is it proved that the risk to her safety of slipping and falling on wet surfaces was not adequately controlled by means at least as effective as the provision of boots like No.6/16 of process, that is, by the pursuer's wearing of the boots she was wearing. In that situation, the duty under regulation 4(1) does not arise. Accordingly I do not find that the defenders were in breach of a duty under regulation 4(1) of the Regulations to ensure that suitable personal protective equipment was provided to the pursuer. It was said that this result would mean that how the accident occurred was left wholly unexplained: it would be "just one of those things". This comment may be based on the assumption that there is such a thing as "non-slip footwear". Both parties refer to such footwear in their pleadings. The pursuer's critical averment, which I have already quoted, is, "Had the defenders provided the pursuer with non-slip footwear, said accident would not have occurred." The defenders, for their part, aver that the pursuer chose to wear her own boots, which had "non-slip soles". It does not appear from the evidence, however, that there is any footwear which will always prevent the wearer from slipping. The most that is claimed for the boots No.6/16 of process is that they are "slip-resistant"; and all that regulation 4(1) requires is that a risk to health or safety should be "adequately controlled", not that it should be eliminated. Thus a person wearing boots like No.6/16 of process, or footwear providing protection of a similar kind, remains liable to slip on a wet floor. The risk is provided against, but it nevertheless remains.

[26] If I had found that the defenders were required by regulation 4(1) to provide suitable personal protective equipment to the pursuer, the next issue would have been whether the defenders had fulfilled their duty under regulation 10 of the Regulations to take all reasonable steps to ensure that any personal protective equipment provided to their employees by virtue of regulation 4(1) was properly used. I would have decided that the defenders had failed in that duty. Having proffered the size 8 boots to the pursuer, they did not take any steps to ensure that she wore them, but acquiesced in her decision to wear footwear of her own until the arrival of the size 8 shoes for which she had expressed a preference. In the result, however, since the duty under regulation 4 did not arise, the defenders are entitled to absolvitor.

Damages
[27] The pursuer avers that immediately after the accident she felt pain in her lower back and left elbow. Thereafter she suffered from increasingly severe pain in the lumbar area of her back. She continues to suffer pain which radiates into her left buttock, thigh and calf. She has become increasingly depressed and anxious. Her concentration is impaired and she lacks energy. She has been diagnosed as suffering from a major severe depressive disorder (DSM IV 296.23). She has not returned to work since the accident. She accordingly seeks damages for solatium, past and future loss of earnings, and past and future necessary services provided by her partner, Mr Stipanovski. The defenders, on the other hand, aver that the pursuer has a significant pre-accident medical history, including specified episodes of depression and anxiety. They maintain that any injuries arising from the accident would have resolved within six to eight weeks, and the pursuer should not have required to be off work for more than three months. She has a normal range of movement in her back and demonstrates no clinical abnormality there.

[28] There is no doubt that the pursuer sustained physical injuries as a result of her fall. She hurt her back and her left elbow, and her colleagues took her to the Southern General Hospital, Glasgow. She was x-rayed and found to have no fractures. The pain in her elbow cleared up within a week or two, but she continued to complain of pain in her back. She attended her general practitioner, and on 29 August 2003 she was also complaining of pain in her left leg. I accept the unchallenged evidence of Mr Peter J Abernethy FRCS, the consultant surgeon called on behalf of the pursuer, that her original symptoms were consistent with her having sustained no more than local lumbar contusions to her lumbar area and left elbow; that the pain in her leg was not connected with the accident; and that the lumbar pain should have resolved within twelve weeks of the accident. Her continuing complaint of back pain cannot be explained by any fracture, neurological impairment or abnormal clinical findings of any kind.

[29] There is also no doubt that the pursuer suffered from depression. I am not satisfied, however, that her depression was linked to her back pain. She did not complain of depression until after the period of three months during which her back pain should have resolved. Her first reported post-accident complaint of depression was not made to her general practitioner until March 2004. It is clear that she had a history of pre-accident depression and other such problems. Her general practice records include a reference to "heavy drinking" on 8 October 1987. On 20 February 1996 she complained of "anxiety and mood swings". On 20 October 1999 she is recorded as "feeling very depressed and agitated, very stressed out". In 2000 she was prescribed anti-depressant medication in March, May and October, her depression being perhaps related to her separation from her husband at the beginning of the year. On 24 August 2001 she reported that she was drinking and smoking excessively following the recent death of her partner, and by October 2001 her depressive symptoms had returned and she was again prescribed anti-depressant medication, on which she was said to be "doing well" on 24 December 2001. The episodes of depression in 2000 and 2001 appear to have been linked respectively to marital stress and bereavement. In April 2003, however, she suffered depression for which there was no identifiable cause. The notes for 11 April 2003 read, "feeling very low, nil triggers, unable to cope with work." She resumed taking anti-depressant medication and was signed off work due to "nervous debility". On 8 May 2003 she continued to complain of severe fatigue, and was certified as being unfit for work for a further four weeks. On 13 June 2003 she was so certified until 28 June 2003 on the basis of "nervous debility". She started work with the defenders in the latter part of June 2003. The accident happened on 29 July 2003. There is no report of depression between 13 June 2003 and March 2004. In these circumstances I am unable to hold that there is a causal connection between the pursuer's back pain and her subsequent depression. In so holding I must reject the evidence of Dr Alex Stewart, the consultant psychiatrist led as a witness for the pursuer. Dr Stewart assumed that the pursuer continued to suffer back and leg pain as a result of the accident, but I have found that that is not so. He also asserted that the depression complained of in March 2004 would not have come on suddenly. It is evident from the records, however, that the pursuer had no apparent difficulty in complaining to her general practitioner when she was suffering from depression. Nevertheless there is no record of any complaint of depression between the date of the accident, 29 July 2003, and March 2004.

[30] In these circumstances I would have awarded damages on the basis that as a result of the accident the pursuer sustained only local lumbar contusions to her back and left elbow: the contusions to the elbow resolved within two weeks, and those to the back within twelve weeks. While 12 weeks' loss of earnings at £201.98 per week would amount to £2,423.70, the pursuer in fact received from the defenders after the accident a total of £3,956.88 as half-pay, sick pay and pay in lieu of notice. There would therefore have been no award in name of wage loss. I would have allowed £500 for services for three months; interest thereon 8 per cent per annum amounts to £87.78; and thus the total award under that head would have been £587.78. For guidance as to awards of solatium in comparable cases I was referred to Smith v National Coal Board 1988 SLT 126, McMullen v Babcock PED Ltd 1992 SLT 969, Stewart v North Lanarkshire Council 1998 SLT 419, Kinross v Sterling Precast Ltd Outer House, Lord Clarke, 11 October 2001, Conway v Wood 2001 GWD 38-1426, Hawkes v Wynn 2002 SLT 1227 and the Judicial Studies Board Guidelines. In my opinion the present case most closely resembles Kinross. My award of solatium would accordingly have been £2000. Interest thereon would have been £351.11, making a total of £2,351.11. My total award would therefore have been £2,938.89.

[31] If I had found that the pursuer's post-accident medical condition was entirely attributable to the accident, I would have awarded, in round figures, for her wage loss to date, the sum of £23,000 less the figure of £3,956.88 mentioned above: £19,043.12, plus interest. Accepting Dr Stewart's assessment of her present condition, I would have awarded some two years' loss of earnings in name of future wage loss, that is, £20,000. For services to date I would have awarded £2,000, and for future services £1,500. For guidance on the award of solatium I was referred to Morrison v Laidlaw 1994 SLT 359, McCrae v Durastic Ltd 1989 SCLR 797, Fraser v State Hospitals Board for Scotland 2001 SLT 1051 and the Judicial Studies Board Guidelines. Having considered these authorities, I would have assessed solatium at £15,000, of which two-thirds would have been attributed to the past and one-third to the future. Interest on the past solatium would have run at 4 per cent per annum from the date of the accident to the date of decree.

Result
[32] In the result, however, I have granted decree of absolvitor.