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Gilbert Gillanders (Ap) v. Arthur Bell (Scotch Tweeds) Ltd+Moorbrook Textiles Limited [2005] ScotCS CSOH_54 (26 April 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 54

A2898/00

OPINION OF LORD BRODIE

in the cause

GILBERT GILLANDERS (AP)

Pursuer;

against

(FIRST) ARTHUR BELL (SCOTCH TWEEDS) LIMITED and

(SECOND) MOORBROOK TEXTILES LIMITED

Defenders:

________________

Pursuer: Thomson; Morisons

Defenders: D.I. Mackay, Q.C., Shand; Simpson & Marwick, W.S.

26 April 2005

Introduction
[1] In this action for damages for personal injury the pursuer avers that he sustained a comminuted depressed fracture of the lateral right fibal plateau involving gross destruction of the articular surface of the right knee as a result of a fall from a ladder while working in the course of his employment with the defenders as a production supervisor at Buccleuch Mills, Langholm on 4 March 1998. He avers that he had propped the ladder so that it rested on a row of bobbins which protruded from shelving in the Weaving Shed (also referred to in evidence as the Loom Shed) and that he fell because the ladder suddenly shifted while he was ascending it. On record he makes cases of negligence at common law and of breach of the duties imposed by regulation 5 of the Workplace (Health, Safety & Welfare) Regulations 1992. The common law case was not, however, insisted upon. When the pursuer's counsel came to address me in submissions he identified the primary factual issues bearing on liability as, first, were the bobbins protruding from the shelving? and, second, did the pursuer have an accident, as averred on record, on the defenders' premises on 4 March 1998? In the event that the pursuer succeeded on these factual issues, the primary legal issue was whether the pursuer's accident had been caused by a failure on the part of his employers to maintain the pursuer's workplace in an efficient state, as required by the 1992 Regulations. All these issues were vigorously disputed, it being the defenders' position that the accident suffered by the pursuer occurred elsewhere than at Buccleuch Mills, and probably at the nearby premises of a quite different concern, Drove Weaving.

[2] I heard proof on 9 March 2004 and on following days. The proof was continued. I heard further evidence on 25 January 2005 and on following days. Mr Thomson, Advocate, appeared for the pursuer. Mr Mackay, Q.C. and Miss Shand, Advocate, appeared on behalf of the second defenders. The following witnesses were led for the pursuer: the pursuer; Mr David Carlisle, actuary; Mr John Slater; Mr Neil Little; Mr Duncan Ritchie; Dr Claire Phillips, general medical practitioner; and Mr John Keating, consultant orthopaedic surgeon. The following witnesses were led for the second defenders: Mr Ian Stother, consultant orthopaedic surgeon; Dr John Kennedy, retired consultant cardiologist; Mr Tom Scott; Mr John Scott; Mr Robert Johnston; Mr Ramsay Johnston; and Mr Graham Simpson, consulting engineer.

The relevant defenders
[3] The action was originally directed solely against the first defenders, Arthur Bell (Scotch Tweeds) Limited, on averments to the effect that at the relevant date the first defenders were the employers of the pursuer. The Record closed on 7 February 2001. On 9 October 2001 the Closed Record was opened up and amended. That amendment, as I would understand it, introduced Moorbrook Textiles Limited as second defenders on the basis that esto the pursuer was not working in the course of his employment with the first defenders at the relevant time, he was working in the course of his employment with the second defenders. The Record again closed on 3 April 2002. On 23 January 2003 the action was dismissed, of consent, insofar as directed against the first defenders. It is now a matter of agreement between the pursuer and the second defenders that on or about 4 March 1998 it was the second defenders who were the pursuer's employers. In the second defenders' pleadings it is explained that from 1988 they have traded as Arthur Bell (Scotch Tweeds). In the pursuer's P60 form, 6/3 of process, in his P45 form, 6/4 of process, and in his wage slips, 6/5 of process, his employer is described as "Arthur Bell (Scotch Tweeds)". The pursuer's initial choice of defender is therefore understandable. The only defenders who remain in the action, Moorbrook Textiles Limited, are properly to be described as the second defenders. However, in the rest of this opinion I shall follow the pursuer's pleadings in referring to the second defenders simply as the "defenders".

The accident

The pursuer's account
[4] The pursuer's date of birth is 16 June 1947. He lives in Langholm. He is married with two grown-up daughters. On 4 March 1998 he was working in the course of his employment with the defenders as a production supervisor at their premises at Buccleuch Mills, Langholm. The business of the defenders is the weaving of high quality woollen cloth. As the parties were at issue as to where any accident suffered by the pursuer occurred, it is convenient, before going further, to say something about the relevant geography of the area. The Buccleuch Mills are situated in the town of Langholm on a site which to its north faces onto Glenesk Road. On its west the site faces onto Waverley Road. On its south the site faces the north bank of the River Esk. Situated to the west of Waverley Road, and parallel to it are, first, Charlotte Street and, second, Maxwell Place. Making a junction with Waverley Road at a right angle and running away from it to the west is Maxwell Road. Junctions with Maxwell Road form the northern extent of Charlotte Street and Maxwell Place. Making a junction with Maxwell Road at right angles and running north from it is West Street (where, in March 1998, the pursuer's son-in-law lived, at number19). This layout of these streets in relation to Buccleuch Mills is illustrated in an ordnance survey sheet, number 7/27 of process. Photograph 9 in number 7/10 of process is taken from Waverley Road looking east. It shows part of a yard and car park and part of the western elevation of Buccleuch Mills. Behind what has the appearance of a yellow metal framework there is a doorway, with opened doors, leading into the mill premises. Photograph 10 is taken from a position in or about the car park, illustrated in photograph 9, looking north and west on to Waverley Road. The junction shown in this photograph is between Waverley Road and Maxwell Road. Photograph 11 is taken from a position on Maxwell Road looking east towards Buccleuch Mills. In the foreground of photograph 11, on the right of the photograph, there is a garage which is located at the junction between Maxwell Road and Maxwell Place. Photograph 12 illustrates the same garage in the left foreground. Photograph 12 is taken looking south down Maxwell Place towards the River Esk. In photograph 12 there is what appears to be the gable of a white house. Between the photographer and the gable there is open space. Lying immediately to the west of this open space are mill premises which, in March 1998, were occupied by a business known as Drove Weaving. These premises are illustrated in photograph 13. It is possible to get entry to the premises of Drove Weaving through the red door, which appears in photograph 13, immediately behind what appears to be a horsebox. The location of the premises of Drove Weaving can be seen on the ordnance survey sheet, 7/27 of process (designated by the letters "Wks") immediately to the north west of the junction between Maxwell Place and Maxwell Court.

[5] The pursuer had worked for the employer he described as "Arthur Bells" since the time he had left school at age 15. He had had no breaks in his employment and, accordingly, as at 4 March 1998 he had worked in the defenders' undertaking for about thirty-six years. Having completed an apprenticeship, he was a qualified weaving machine technician. In about 1970 technically advanced high-speed weaving machines were installed in Buccleuch Mills. The pursuer was appointed as supervisor. As at March 1998 the pursuer supervised five or six weavers. His job included the maintenance of the weaving machines. He worked shifts, 6.00am to 2.00pm and 2.00pm to 10.00pm, although hours might be longer if the defenders were particularly busy. During the day some thirty to forty people worked in Buccleuch Mills (including office staff). After 5.00pm, if the pursuer was working the 2.00pm to 10.00pm shift, the workforce in the premises would be himself, the weavers working under his supervision and a night watchman. The senior executive of the defenders at Buccleuch Mills was Mr Tom Scott, the managing director. The pursuer loved his job and considered that he was good at it. In his evidence he described a pattern of working which did not appear to be very formally organised or very rigorously disciplined. The defenders' weaving machines were automatic and required little attention from the pursuer. Although a supervisor, the pursuer was prepared to do such jobs as required to be done, sometimes taking over from a weaver in order to allow that weaver to take a break. While priority was given to keeping the weaving machines operating, the pursuer and the weavers took breaks, both official and unofficial, in the course of their shifts. If he lived nearby the Mills, a weaver might leave the defenders' premises and take a break period at home. The pursuer would do this.

[6] On occasion, the pursuer would be asked by Mr Scott to mend machinery in one of the other five weaving mills in Langholm. One of these mills was the mill operated by Drove Weaving, the manager of which was Mr Trussler. In about 1993 or 1994 the defenders had given six of their older machines to Drove Weaving. Drove Weaving had no mechanic. Mr Scott agreed that the pursuer should assist with the maintenance of these machines. What was initially intended as an arrangement for a few months was, according to the pursuer, extended to a few years and then indefinitely. According to the pursuer (but not Mr Tom Scott when he came to give evidence), the pursuer had a free hand to go to Drove Weaving whenever he was required, provided the defenders' machines were running efficiently. The assistance provided to Drove Weaving by the pursuer was not limited to the maintenance of machinery. The operation of weaving machines is dependent on the use of punched cards which determine the pattern of the cloth woven by the machine. Mr Scott had given permission for Drove Weaving to use the defenders' card punching machine. As at March 1998, Drove Weaving did not possess a winding machine. Because of this fact and because Drove Weaving purchased woollen yarn (destined to be what was variously described as the "selvage", "ribbon" or "waste" yarn woven into the edge of the cloth) which had not been wound onto cores to form bobbins, it was the pursuer's evidence that there was an arrangement between Drove Weavers and the defenders whereby he might wind bobbins for the use of Drove Weavers. On occasion, the pursuer would visit the premises of Drove Weaving simply to have a cup of coffee or to watch the older weaving machines in operation. According to the pursuer he would not, however, leave the Buccleuch Mills on any occasion without telling someone where he was going.

[7] When yarn is being woven on a weaving machine, it is held on what were variously described in the evidence as "cones", "spools" and "bobbins". I shall follow the Record in using the term "bobbin". A bobbin might weigh two or three kilograms. Number 7/10 of process is an engineering report by Mr Graham Simpson, consulting engineer, prepared on the instructions of the defenders' agents. Attached to it are photographs taken on 20 September 2001. A number of bobbins are illustrated in photograph 7. As can be seen from that photograph, a bobbin is formed by winding yarn around a plastic core. Number 7/25/h of process is a photograph, taken by the pursuer on 23 January 2004, which illustrates a winding machine which could be used to wind yarn onto to a core to form a bobbin. In March 1998 this winding machine belonged to the defenders and was located in Buccleuch Mills.

[8] The pursuer described his place of work within Buccleuch Mills as being the Weaving or Loom Shed. That was where the weaving machines were located. Within the Weaving Shed there was provision for the storage of bobbins within a framework of shelving, which was divided into what the pursuer described in evidence as "boxes". Photographs 1, 2, 5 and 7 in number 7/10 of process illustrate parts of this framework of shelving and the boxes into which it is divided. It is also illustrated in the eight photographs, taken by the pursuer on 23 January 2004, which are 6/25(a) to (h) of process. Number 7/26 of process is a layout plan of the Buccleuch Mills. The Weaving Shed is that part, adjacent to an area marked "canteen" which appears to be designated "wearing" but which is meant to be designated "weaving". The framework of shelving was located along the partition wall which extends to the right of what is designated "canteen" in the layout plan, number 7/26 of process. What is marked "exit" is the doorway shown in photograph 9 of number 7/10 of process.

[9] As measured by Mr Simpson, on the occasion of his visit on 20 September 2001, the top of the framework of the shelving reaches 2.54m (8'4") above floor level; the front of the framework measures 86cm (2'93/4") from the wall behind it; and the top shelf is situated 2m (6'5") above the floor. Mr Simpson describes the shelving in his report as comprising sheets of a material similar to hardboard or plywood within a metal framework. As is illustrated in photograph 5 of number 7/10 of process, mounted on the same wall as the framework of shelving and to the right of the shelving, as one looks at the photograph, there are what appear to be electrical fuse boxes. Below these electrical fuse boxes there is, attached to the floor and wall, a barrier rail. Illustrated in photographs 1 to 4 of number 7/10 of process there is an aluminium ladder. The lower ends of the stiles of this ladder are equipped with articulated rubber feet each with an aluminium backing disk, as illustrated in photograph 4. The overall length of this ladder is 2.3m (7'6"), the stiles being 9cm (31/2") wide and the horizontal width of each step being 9.2cm (3⁵/₈"). In cross-examination, the pursuer accepted that the ladder from which he said that he fell on 4 March 1998 was similar to the ladder illustrated in photographs 1 to 4 of number 7/10 of process. He explained, however, that in March 1998 there was more than one ladder in the Loom Shed. Some of these ladders had hooks attached to the upper end of the stiles, as is the case with the ladder shown in the photographs attached to number 7/10 of process. Some did not. Number 7/28 of process is a photograph illustrating the framework of shelving side on. It was taken by the witness Mr John Scott "a couple of days" after 5 March 1998, that is three days or thereabouts after the pursuer sustained injury. Two ladders can be seen in that photograph. In photographs 1 and 2 of number 7/10 of process, there can be seen, adjacent to the ladder, a metal framework within which are positioned bobbins. This is referred to as a "bank". A feature of the the Weaving Shed and the framework of shelving as illustrated in photographs 1, 2, 5 and 7 of numbers 7/10 and 7/28 of process is their tidy appearance. The floor immediately to the front of the framework of shelving is clear of obstructions. Bobbins are neatly stacked within the individual boxes of the framework of shelving. This is to be contrasted with what is illustrated in photographs (a) to (h) in number 6/25 of process. In these photographs there are cardboard boxes in front of the framework of shelving. Although the photographs 6/25(a), (b) to (h) had been taken nearly six years after the accident, on 23 January 2004, after the defenders had moved out of the premises, it was the evidence of the pursuer that these photographs more nearly represented the condition of the Weaving Shed on 4 March 1998 than did the photographs in number 7/10 of process or the photograph number 7/28 of process. According to the pursuer, bobbins were not stacked in the neat manner illustrated in photograph 7 of number 7/10 of process, with bobbins lying back from the edge of the shelves. Rather, a row of bobbins was built up at the front of each box and thereafter bobbins were thrown in behind that front row. Bobbins always protruded beyond the edge of the boxes "anywhere from 6 to 10 inches depending on volume". The pursuer's evidence on this matter was quite general in the sense that I understood him to be referring to all boxes, at all levels, at all times, but he did say, more specifically, that on 4 March 1998 the boxes were all full to the top because it was a very busy time for the mill. As he put it: "We were fighting for places to put yarn." It was the pursuer's evidence that bobbins often fell out of the boxes and onto the floor.

[10] On 4 March 1998 the pursuer's shift had begun at 2.00pm. He was in the Weaving Shed. Five weavers were working under his supervision: Gordon Johnston, Robert Johnston, Corrie Graham, Neil Grant and Kerry Hawthorn. There was also a night watchman in the premises. This was William Harkness. He was responsible for the operation of the yarn twisting machines. That evening the pursuer took a break between 5.30pm and 6.00pm. He went home. After his break he drove back to the defenders' premises in his car, which he left in the yard and car park which is illustrated in photograph 9 of number 7/10 of process. Not long after returning to the defenders' premises, the pursuer walked to the premises of Drove Weaving (by the most direct route a distance measured by Mr Simpson at 170 metres) in order to see if they were having any problems and to look for any "empty cones" (by which I took him to mean plastic cores). He returned to the defenders' premises bringing, perhaps, two plastic cores. The pursuer then wound yarn on to these cores using the defenders' winding machine. Having done so the pursuer noticed several bobbins lying on the floor. He took them to have fallen from a box as indeed was apparent when he looked at the appropriate box. He decided to place the bobbins in the appropriate box within the framework of shelving. This box was at the top right-hand side of the framework, as one looked at it. This is the box against which the ladder is leaning in photograph 1 of number 7/10 of process. The pursuer estimated that on 4 March 1998 bobbins had been placed one on top of another to a height of 12 or 13 inches above the base or shelf of the box. On 4 March 1998 the bank was in the position in which it is shown in photograph 1. In order to get access to the top right-hand box the pursuer placed a ladder, similar to that shown in photograph 1, against the framework of shelving at a point where the top rung of the ladder straddled the division between the top right-hand box and the box immediately adjacent to it and to the left. According to the pursuer, the top of the ladder was resting against bobbins protruding over the edge of the shelves on either side of the division between the boxes, rather than on any part of the boxes themselves ("it was leaning on the wool itself ... on the bobbins"). The pursuer was uncertain as to whether the ladder he used had hooks, such as those attached to the top of the ladder illustrated in photograph 1 and, in close-up, in photograph 3. As appears from photograph 1, the floor immediately below the top right-hand box is constructed from concrete (the pursuer explained that a weaving machine had formerly been located at this point). On either side of the concrete the floor is made of wood. The pursuer placed the ladder so that it was footed partly on concrete and partly on wood. Accordingly, as positioned by the pursuer, the ladder would have been somewhat closer to the photographer than the ladder which is illustrated in photograph 1. The pursuer did not think it necessary that someone foot the ladder. The pursuer then took five or six bobbins, holding them stacked, one against the other, between his right hand and his right elbow. In the witness box, the pursuer demonstrated how, by cocking his wrist and elbow, he could accommodate a number of bobbins within the crook of his arm. He climbed the ladder holding on to it with his left hand. He thought that he climbed to the fifth or sixth rung of the ladder. As he stretched over to his right in order to throw the cones into the top box, he slipped off the ladder and fell to the ground. He landed on the concrete on his right knee. He thought that he had hit something as he fell. He estimated the time at which this happened as being round about 8pm. In explaining, in evidence-in-chief, how the accident occurred, the pursuer said "whether the ladder slipped or I slipped off it I went over and down because I was stretching out to the right to put them in the box". However, I understood the pursuer to have had the impression that, before he fell, the ladder had moved or "cockled" to the right and, as a result, he lost his balance and fell. The pursuer confirmed in cross-examination that the ladder shifted to the right prior to him falling. I understood him to be saying that it was this movement of the ladder that led to his fall. As he had been leaning over in that direction the pursuer's weight took him to his right. He suggested that possibly a bobbin against which the ladder was leaning had moved inwards with the result that the ladder "moved with the wool".

[11] Within a few seconds of the pursuer falling a person who he had never seen before (later identified as Mr Slater) came into the Weaving Shed. He asked the pursuer whether he was "OK". He helped him up from the floor. At that point the pursuer did not think that he was really injured. He was "not in the greatest of pain". Mr Slater left.

[12] The pursuer got to his feet. He wanted fresh air. His leg was getting sore. In retrospect he considered that he was then in shock. He did not look for anyone else in Buccleuch Mills. It was his evidence that the weavers would always take "a good break at home, between 8pm and 9pm, practically everybody", notwithstanding that they had taken an earlier break. Therefore at the time of his accident the pursuer thought that his fellow-employees were all at home. He accordingly left the defenders' premises by way of the exit and made his way across the car-park and yard which is shown illustrated in photograph 9 of number 7/10 of process. It had been the pursuer's original intention to go to the house of his son-in-law: "for a cup of tea and possibly put my feet up and have a break because I was just confused". The pursuer also referred to the possibility of using his son-in-law's telephone. However, when he saw that the lights were not on in that house he proceeded to the premises of Drove Weaving. It was only after he had arrived at Drove Weaving that he told anyone about his accident.

[13] The pursuer's route from the Weaving Shed led him past a pay-phone which was located in the passageway leading to the exit. The distance from the point at which the pursuer said he fell to the pay-phone was paced out by Mr Simpson at about 20 metres. The pursuer explained that he did not use this phone in order to summon assistance because he had no money. He appreciated that he could have dialled "999" without paying but, being the safety officer for his shift he knew "if you dial '999' from a phone in a factory you get the police, fire brigade and ambulance because it is standard." He did not think that there was any need for that.

[14] As he described it in his evidence, after he had crossed the car-park and yard, the pursuer first turned to his right and walked north on Waverley Road until he realised that the lights in his son-in-law's house were not on. He then re-traced his steps and walked south on Waverley Road. He knew that there was a telephone in the premises of Drove Weaving (although he indicated that his first thought was to get a cup of tea) and therefore determined to make his way there rather than returning to Buccleuch Mills. When he came to the bank of the river he turned right and walked parallel with the river until he came to Maxwell Place when he again turned right and made his way to the premises of Drove Weaving. The distance from the Buccleuch Mills to Drove Weaving, door to door, following the route described by the pursuer but omitting the distance he walked north on Waverley Road and then double-backed, was paced out by Mr Simpson at 205 metres. Given that he had set off from the Weaving Shed the distance covered by the pursuer with, on his account, a broken leg, was of the order of 225 metres. That is to ignore the distance he walked north on Waverley Road and then came back again.

[15] After he arrived at the premises of Drove Weaving the pursuer sat down on a box. He was sitting there when he was found by Mr Neil Little. At the pursuer's request Mr Little telephoned the pursuer's son-in-law who brought the pursuer's car and drove the pursuer first to his home and thereafter to the Cumberland Infirmary in Carlisle.

[16] The pursuer never returned to work. He was dismissed from his employment with the defenders as from 12 June 1998 on the ground of gross misconduct, the alleged misconduct being the giving of a false account of events (that he had had an accident in the defenders' premises) and being present on other premises (those of Drove Weaving) without permission. The pursuer made a complaint of unfair dismissal to the industrial tribunal. That claim was settled through the Advisory, Conciliation and Arbitration Service on terms which are set out in production number 6/23 of process.

Other evidence
[17] Mr John Slater was, at the time he gave evidence, a self-employed adviser and care manager in social care for children's units in the private sector. In March 1998 he was a van driver. According to him he called in at the Buccleuch Mills on an evening that he accepted might have been 4 March 1998 with a view to meeting a lorry driver, whose name he did not now know, "hoping to do some deal with him." He anticipated seeing the driver in the canteen. He found the pursuer "lying on the floor at the bottom of the ladders". Mr Slater asked the pursuer if he was all right. The pursuer mentioned something about his leg but said that he was all right. Mr Slater helped him up and then left by the way that he had come. He did not meet any driver.

[18] When asked in cross-examination to provide detail about the layout of that part of the Buccleuch Mills where he said that he had found the pursuer, Mr Slater remembered little. While it may strictly be the case that Mr Slater did not admit to any criminality on his part, he gave a description of dealing in, and selling and swapping of goods and diesel oil as between lorry drivers, which can only be understood in terms of embezzlement, theft, fraud or reset on the part of some, if not all, of the participants. It was with a view to pursuing such a deal that Mr Slater said he had come to the Buccleuch Mills. To the extent that it was not otherwise explicit, I took Mr Slater to acknowledge that in answering a question from me at the end of his evidence. Indeed he volunteered that when being precognosced on behalf of the defenders it was insinuated that should he give evidence his past may be "brought up". Accordingly, in giving the evidence that he did I took Mr Slater to be aware that he was admitting to something which was not to his credit.

[19] Mr Neil Little gave evidence as to having seen the pursuer in the premises of Drove Weaving at about 7pm on 4 March 1998. He saw him there again about half or three quarters of an hour later, hobbling slowly down a passage. He was resting his hand against a box of yarn. The pursuer said something to the effect that he had hurt his leg and requested Mr Little to telephone the pursuer's son-in-law.

[20] Duncan Ritchie was employed by the defenders as a warper. His duties included stock-taking. This required him to take bobbins from the boxes, weigh them and replace them. He liked to build up the bobbins neatly. Others, mainly pattern weavers, were not so particular and simply threw bobbins into the boxes. As a result some boxes were "an absolute disgrace". The top ones were the worst. When asked whether bobbins ever protruded from the top boxes, Mr Ritchie said that they did. This was a result of attempts to get a final row of bobbins of a particular colour into a box when rows were built from the back. What was shown in photograph 7 of number 7/10 of process was the ideal but, so Mr Ritchie suggested, the ideal was not always achieved. Bobbins varied in size and in the tension of their winding with the result that when bobbins were built from the back of a box the final row could not be accommodated without the bobbins in that final row extending beyond the shelf. That was to be contrasted with the situation where only the front two rows were built up, with additional bobbins being thrown behind the built up rows. Then the front rows would be built so as to leave space on the shelf where a ladder could be place. However, Mr Ritchie had experience of finding that he had to place a ladder against protruding bobbins rather than the shelf of a box. The ladder was then less stable than it would have been if placed against the shelf. When shown the photograph 7/28 of process, told it was said to have been taken on the day or so after 4 March 1998, and asked to comment, Mr Ritchie said the area had been tidied up. It did not "ring true" as a representation of the area in March 1998.

[21] Thomas Scott was the Managing Director of the defenders. He described the pursuer as technically very good, operating the general running of his department as was expected, but guilty on several occasions of having been absent from work and at the premises of Drove Weaving without permission. In contrast to what had been said by the pursuer, Mr Scott was quite clear that the pursuer did not have permission to wind yarn on behalf of Drove Weaving. Neither did the pursuer have permission to go to the premises of Drove Weaving in order to maintain their machinery without a specific request having been made by Drove Weaving and agreed to by the defenders. Mr Scott's understanding of why the pursuer was dismissed from the defenders' employment was his undertaking ad hoc work for Drove Weaving when working as a shift supervisor for the defenders and, in particular, winding yarn on their behalf, thus setting a bad example to the rest of the shift.

[22] Mr Tom Scott confirmed that what appeared in the photograph 7/28 of process was representative of the appearance of the area shown on the day of the pursuer's accident, with the exception that the ladder would be positioned further away from the position of the photographer. More generally speaking, some boxes might get to be full of bobbins, some would not. He could not categorically say bobbins did not protrude from the shelf but he was 99.9% sure they did not. He definitely disagreed with the proposition that it was a regular occurrence for the top boxes to be filled to the point where bobbins protruded from the shelves. He completely disputed that it was a regular occurrence for bobbins to fall off the shelves onto the floor. The filling of the boxes was the responsibility of yarn store operators and not that of the pursuer nor Mr Ritchie. The boxes were packed in such a way, back from the edge of the shelf, that the bobbins were stable. The boxes were designed to accommodate the length of the bobbins so that they would not protrude over the edge of the box.

[23] John Scott was the Mill Manager at Buccleuch Mills in 1998. He was not on duty on the night of the accident but, shortly after he began work on 5 March 1998, he learned that the pursuer had reported his accident by telephone. He understood the accident to have occurred near to the winding machine. He went there at about 10 am. He did not find bobbins to be spilling over from the boxes and could find no evidence of an accident having occurred. Under reference to the photographs 7/10 of process he said the boxes were fuller as at 5 March 1998 than was shown in the photographs. He took the photograph 7/28 a couple of days later but it represented the situation as he had found it on 5 March 1998. There were no bobbins protruding over the edge of the boxes. No previous accident had been reported in this area. He disagreed with the proposition put to him in cross-examination that bobbins would regularly fall out of the boxes.

[24] In 1998 Robert Johnston was employed by the defenders as a tuner. He had been working the back shift on 4 March 1998. He was accordingly on duty on the evening of the pursuer's accident. That evening he and Gordon Johnston were in the Darning Room listening to a Champions' League football match on the radio. In order to get to the Darning Room he had to pass the bank shown in photographs 1 and 2 of number 7/10 of process. He could not remember seeing anyone there or seeing a ladder. He did not see anything untoward when he came out of the Darning Room and returned to his place of work. He only learned of the pursuer's accident some time later, from Neil Grant. He said he was not involved in the filling of the boxes. Bobbins were usually stacked back from the edge of the boxes. They did not hang over the edge. The yarn store manager made sure that they were tidy.

[25] Mr Ramsay Johnston had been employed as production manager by the defenders in 1998. At that time he had no knowledge of deliveries to Buccleuch Mills after 5pm. After leaving the defenders' employment in April 2003 he held the keys for Buccleuch Mills until Drove Weaving moved in to the premises. After that, on 20 July 2003 he had seen the pursuer working on a loom in Buccleuch Mills with Mr Little.

Submissions as to the circumstances of the accident
[26] Mr Thomson commended the pursuer and Mr Slater to me as credible and reliable witnesses. He submitted that in the absence of contradictory evidence the pursuer's account of the accident should be accepted.

[27] Mr Mackay submitted that the pursuer's account of having suffered an accident in the Buccleuch Mills was simply a lie. It was to be presumed that the pursuer had fractured his leg in some circumstances or other while in the premises of Drove Weaving, where he had been found by Neil Little. The pursuer had been vigorously cross-examined to that effect, and in submission Mr Mackay developed a detailed criticism of his evidence. Mr Mackay began by contrasting the account of his accident which was given by the pursuer in evidence and the accident report prepared by him some eight days after the event, number 7/19 of process. It was moreover Mr Mackay's submission, as could be seen from various documentary productions, including the medical records, that the pursuer's account of the distance that he had fallen had varied from time to time, from a maximum of eight feet from the ground to a minimum of two or three rungs up the ladder. The pursuer's claimed reason for leaving the defenders' premises rather than seeking assistance from his work-mates was said by him to be because it was the practice for them all to take breaks at the same time and all to go home. He nevertheless had indicated at other points in his evidence that there were or were likely to have been other workmen in the Buccleuch Mills at the relevant time. The Pursuer's explanation of why he did not phone for an ambulance using the pay phone next to the front door of the Defenders' premises: that he believed that phoning for an ambulance would automatically result in the fire brigade and the police attending, was, Mr Mackay submitted, simply absurd. In evidence-in-chief the Pursuer's position appeared to be that after his accident he decided to go to his son-in-law's house for a cup of tea and that at some point after this decision his leg became so painful that he considered phoning for help. This was difficult to reconcile with his evidence as to why he did not use the pay phone. His evidence regarding this period of time was inconsistent and incredible. The account of when the pain from his leg became severe varied during the course of the pursuer's evidence, but, significantly, he said that just after Mr Slater allegedly walked away, his knee was "getting as sore as anything". The medical evidence suggested that, having regard to the nature of the fracture that he sustained, the pursuer would have been in great pain walking to the house of his son-in-law or to the premises of Drove Weaving. In the light of both what the pursuer himself said and the medical evidence it is difficult to believe that the pursuer would have attempted to leave the defenders' premises rather than at least to check whether there was someone there who could assist him. According to Mr Mackay, there were numerous other areas in which the pursuer's credibility was highly suspect, when regard is had to the whole of the evidence. His lack of credibility in these areas built up a picture of a person who was prepared to say anything irrespective of whether it is true or false, in order to further his claim. Mr Mackay referred to the pursuer's assertion that not only did he have permission, on an allegedly long-standing basis, to visit Drove Weaving whenever he wanted to, but that he was also permitted by Mr Thomas Scott to wind spools for Drove Weavers. This was denied by Mr Scott, a patently truthful witness. Notwithstanding the contrary terms of the medical records, the pursuer denied that he had an alcohol problem. He claimed in evidence that his wife bought him alcohol in the face of the medical records which documented that he had been hiding his drinking habit from his wife. The pursuer had repeatedly claimed levels of disability that were wholly inconsistent with the video surveillance evidence led by the defenders and which varied depending on whom he was talking to. The pursuer claimed that the plastic cones around which the wool is wound were all of different lengths. This was contradicted by Duncan Ritchie and by Tom Scott. In the course of his evidence the pursuer repeatedly asserted that the area around the waste winding bank and the boxes was full of boxes and that bobbins were sticking out from the shelves. Mr John Scott inspected the locus of the alleged accident between 8am and 9am on 5 March 1998. He denied that the area was as described by the pursuer. He took photograph number 7/28 of process, "a couple of days" after the accident. This does not show what the pursuer described. The pursuer claimed that the bobbins that fell were production yarn, in other words yarn that would be used for the body of the cloth. That the bobbins were of production yarn was his justification for ascending to the top box. Mr John Scott gave evidence (on which he was not cross-examined) that the first three lines of boxes all contained "waste" bobbins.

[28] Mr Mackay appreciated that if I was to reject the pursuer as incredible then I must also reject Mr Slater as incredible in that he had spoken to finding the pursuer in an apparently injured state at the locus where the pursuer claimed to have had an accident. Just as he had invited me to find the pursuer to be incredible in relation to his account of the accident, so Mr Mackay invited me to find Mr Slater to be incredible. Mr Mackay submitted that Mr Slater's evidence regarding the reason for his being at the Buccleuch Mill was inconsistent and unconvincing. His evidence regarding the layout of the interior of the defenders' premises was obviously erroneous suggesting that he had never been there. When it was suggested to him that his activities in 1998 relating to the buying or swapping of diesel oil might be criminal in nature, he embarked upon what Mr Mackay characterised as an entirely unintelligible explanation.

Discussion
[29] I considered there to be some force in Mr Mackay's criticism's of the pursuer's evidence. I did not find the pursuer to be a very impressive witness. That he was being asked about events that had occurred some six years before must, of course, be borne in mind. The pursuer did, at one point, explain that he was a little deaf and it may be that he had difficulty hearing the exact terms of questions directed to him (although he did not complain of that) or it may be that he was nervous because he was in court, but he did not always answer the question that he had been asked. His answers lacked precision and it did not appear to me that he fully appreciated the need for care in giving answers. His evidence under cross-examination as to what he had said about the height from which he had fallen suggested either a willingness to exaggerate or a failure to understand the importance of attempting to be accurate. There were shifts in the pursuer's evidence. Somewhat different answers were given to what were essentially repetitions of the same question. These answers were not entirely consistent one with another. As a result, the pursuer did not present as a reliable witness on matters where his evidence was unsupported. That said, I did not gain the impression that he was lying. I would have expected a deliberate fabrication to have been rather more precise than the vague and shifting account given by the pursuer. I accept that there were differences as between the pursuer's account of the accident in evidence and what he wrote in the accident report, number 7/19 of process. I shall have occasion to return to the terms of that accident report, which do appear to me to be relevant when it comes to consider just how any accident occurred, but I was not very impressed by the differences to which my attention was drawn by Mr Mackay, as providing a basis for a conclusion that the pursuer had not suffered an accident, in some circumstances or another, at Buccleuch Mills. I would not attach significance to the pursuer's failure to mention Mr Slater in the accident report (albeit that number 7/19 of process includes the statement "there was not at that time anyone about"). The pursuer's account of leaving Buccleuch Mills, having sustained a quite serious injury there, and then going to the premises of Drove Weaving, rather than attempting to find a fellow employee within the defenders' premises or to telephone the emergency services, gave me more difficulty. I did not understand the medical evidence as completely discounting the possibility of the pursuer being able to make his way over the relevant distance (in his report, number 6/26 of process, the pursuer's orthopaedic expert, Mr Keating, describes it as "just possible"), or, indeed when he arrived there, hobbling into hospital, which is what the pursuer said that he did. Mr Mackay did not suggest otherwise. What nevertheless seemed decidedly odd was the pursuer's failure to make any attempt to find someone at Buccleuch Mills at a time when it would appear that there were a number of his fellow employees in the building, as he might be expected to be aware. His explanation, that notwithstanding the fact that employees had an official meal break earlier in the evening, everyone "had a good break at home between 8pm and 9pm" while consistent with the pursuer's fairly relaxed view as to the requirement to be at ones place of work during working hours, was not entirely easy to understand and was unsupported by other evidence. Given the apparent improbability of someone acting in the way that the pursuer said he had acted, it appeared to me to be appropriate to pause before accepting his account of falling from a ladder at Buccleuch Mills as opposed to suffering an accident at some different location. I have, however, concluded that it would be wrong entirely to reject what the pursuer had to say about having had an accident at the Buccleuch Mills. The pursuer's first report of the accident, by telephone, described it as having happened at the Buccleuch Mills. To have immediately committed himself to what was, on the defenders' approach, a clear and bold lie, would seem, to put it no higher, remarkable. I heard no evidence which directly contradicted the pursuer's account. Neither Robert Johnston, on 4 March 1998, nor John Scott, on 5 March 1998, saw any sign of an accident, but that might be explained by it not having occurred when Mr Johnston passed by on the evening of 4 March, and the fallen ladder and bobbins having been tidied away by someone unknown by the time Mr Scott made his investigations more than twelve hours later. On the other hand there was the evidence of Mr Slater which tended to corroborate the pursuer's account of having suffered injury at the location described. Mr Mackay asked me to find Mr Slater incredible. I was not disposed to do so. That in giving evidence he disclosed his participation in what I understood he appreciated was illicit activity, if anything, rather assisted his credibility in my estimation. That he had little or no memory of the layout of Buccleuch Mills six years after his alleged visit did not, in my view, lead necessarily to the conclusion that he had never been there.

[30] I did not consider the medical evidence conclusive as to exactly how the pursuer came to be injured. Mr Stother thought that a fracture of the severity of that sustained by the pursuer would be an unusual and unlikely consequence of a fall from only three or four feet (which would seem to be the likely approximate distance of the pursuer's feet from the ground on his account of what he was doing when he fell). Fractures of this sort in someone of the pursuer's age would be more likely to result from relatively high energy impacts. A fall from 7 feet quite possibly might have produced such an injury. Mr Keating accepted that the fracture could be described as having resulted in gross destruction of the tibial plateau. In his experience, the majority of such injuries are the results of low energy impacts but involve patients in their sixties and seventies who have some degree of osteoporosis. It was less likely that the pursuer's injuries were to be explained by a fall from between two and four feet than by a fall from between four and seven feet but that they had resulted from a fall from the former height was possible.

[31] I therefore accept that the pursuer sustained his injuries at Buccleuch Mills and that he did so by reason of falling from a ladder that he had propped against the shelving in the Weaving Shed. There remains the question as to what was the cause of that fall. The pursuer is the only source of information on this matter. In his manuscript report of the accident, dated 12 March 1998, number 7/19 of process, the pursuer describes the mechanism of the accident in these words: "Somehow I fell off of the ladder and hit something on the way down, think it was the metal bar, round the electric Boxes." There is nothing in the report about propping the ladder against bobbins or about the ladder moving prior to the pursuer falling off. I understood it to be accepted by Mr Thomson that the pursuer was unlikely to have hit the guard rail below the electrical boxes illustrated in photograph 5 of number 7/10 of process. As I have already observed, when giving evidence the pursuer said "I was stretching over to put [the bobbins] in and whether the ladder slipped or I slipped off it I went over and down because I was stretching out to the right to put them in the box". When cross-examined, the pursuer acknowledged that at the time of the accident he did not know why he had fallen off the ladder but explained that, after thinking about it, he had concluded that the ladder had moved to the side. When the cross-examiner pointed to the apparent discrepancy between "somehow I fell off the ladder" which was the wording to be found in number 7/19 of process and "the ladder moved", the pursuer responded by saying that "it's the same difference." In describing what the ladder had done, the pursuer's preferred word was "cockled". He defined it as meaning "bent". He explained that the aluminium ladders were flexible to a certain extent: there was a spongy feeling with aluminium ladders, "they give way". It was when the pursuer was throwing his armful of bobbins into the box that the ladder moved or "cockled" to the right and, as a result, he lost his balance and fell. It was the pursuer's view that possibly a bobbin had moved inwards and, as a result, the ladder had cockled. When demonstrating how he threw the bobbins into the box, the pursuer indicated that he drew back his right arm, turning his upper body, and so moving his centre of balance, to the right.

[32] What I took from the pursuer's evidence, as summarised above, is that initially he did not know why he fell. On reflection, he has come to be of the view that the ladder shifted causing him to lose his balance. Assuming that to be so and assuming that the ladder was indeed propped on bobbins, I would take from the pursuer's evidence that the shifting of the ladder may have been the result of a bobbin moving (as suggested by the pursuer) but that there are other possibilities. The ladder may simply have flexed or it may have been pulled over by reason of the pursuer leaning to his right and throwing bobbins into the box with a consequent shift of his centre of gravity. The pursuer may have over-balanced because of what he was doing and as a result fallen without any initial movement of the ladder. The pursuer's case is predicated on the ladder being propped on a protruding bobbin (because he was unable to prop it against the shelf) and the ladder suddenly shifting because it "moved with the wool" or because of some other mechanism consequent upon the ladder being insecurely supported. As Mr Thomson acknowledged, that requires the pursuer to establish that the ladder was indeed propped on a protruding bobbin. As I have already indicated, I am prepared to accept that the pursuer sustained his injuries, in the defenders' premises, by reason of him falling from a ladder which had been propped in the location indicated by him. The evidence has not, however, satisfied me that the pursuer has proved, on a balance of probabilities, that the ladder shifted because of some insecurity in its positioning consequent upon protruding bobbins or that that the pursuer fell because of a shifting of the ladder (as opposed to simply losing his balance). Putting that slightly differently, I have accepted Mr Mackay's submissions on behalf of the defenders: that, assuming the accident to have happened in the defenders' premises, the pursuer has not established exactly how it happened and in particular the pursuer has not established that it happened due to the ladder shifting; and that even were it assumed that the accident happened because the ladder shifted the pursuer has not established that the ladder shifted because it was propped on protruding bobbins.

[33] In coming to the conclusion that the pursuer has not proved, as he requires to, how his accident came about, I have had regard to the evidence on the closely connected matter of the state of the shelving and, in particular, the positioning of the bobbins in the top right hand box. The pursuer avers that the shelves were full of bobbins, that as a result bobbins protruded from the shelving and that he was unable to prop the ladder against the shelving because of protruding bobbins. I do not find these averments to have been proved. They were clearly spoken to by the pursuer himself but given the reservations that I have expressed about the pursuer's evidence, I was not prepared simply to accept what he had to say without giving the matter further consideration under reference to all the evidence. Mr Thomson relied on the evidence of Mr Ritchie as supporting the pursuer. Mr Ritchie impressed me as a careful witness who was trying to give precise evidence. As Mr Thomson reminded me, Mr Ritchie spoke to the general untidiness of the bobbins within the boxes and the passageway illustrated in the photograph, number 7/28 of process. Mr Ritchie said that bobbins did protrude from the shelving and, in particular, from the top boxes. However, his evidence was general rather than specific to the two boxes over which the pursuer said he had straddled the ladder or, indeed, specific to the day of the accident or the immediately preceding days. Mr Ritchie explained that he did not have occasion to use "the last three boxes" because they were used to store selvage yarn. It was the top of "the last three boxes" into which the pursuer was throwing bobbins (of what he described as "production wool") and against which he said he had propped the right hand upright of the ladder. Moreover, Mr Ritchie explained how, in his experience, it came about that bobbins would protrude. As I have previously indicated when summarising his evidence, this was the result of building an array of bobbins from the back of a box. Now, at least as far as the top right hand box was concerned, the pursuer explained that only two rows of bobbins had been built up, leaving space behind into which further bobbins could be thrown. Accordingly, the mechanism which resulted in bobbins protruding that had been described by Mr Ritchie, did not apply to the top right hand box. I entirely accept that it was the clear evidence of the pursuer that bobbins always protruded and I accept that there might be reasons for bobbins protruding other than those described by Mr Ritchie, but I did not find in his evidence support for the pursuer's description of the state of the top right hand box on the day of the accident. The evidence of Mr Tom Scott was that bobbins did not protrude from the shelves. My assessment of Mr Tom Scott was that he was a completely honest witness, although I consider that Mr Thomson was correct to draw attention to the nature of Mr Scott's duties as managing director. They did not require him to give close attention to the position of bobbins in the boxes. It appeared to me that the evidence of Mr John Scott was of more importance. He had inspected the locus of the accident on 5 March 1998, a little more than twelve hours after the accident had occurred. He had taken the photograph number 7/28 of process. The photograph was taken a couple of days after 5 March but, according to Mr John Scott, it represented the state of the locus when he had made his inspection. It was put to him in cross-examination that he was not in a position to say how many bobbins may have been used during the shift previous to his coming to work on the morning of 5 March or whether the locus might have been tidied up, but he was not challenged on his evidence that what appears in the photograph represents what he saw when he inspected the area at about 10am on 5 March 1998. It was put to him that bobbins regularly fell from the boxes (he disagreed) but, again, he was not challenged on the evidence that he had given during examination-in-chief that when he looked at the area on the morning of 5 March there were no bobbins projecting over the edge of the boxes. Now a failure to cross-examine a witness who gave his evidence late in the proof cannot be conclusive as to the accuracy of what the witness has spoken to, but the fact remains that Mr John Scott was not challenged on these matters and I have taken that into account.

[34] Mr Mackay relied on the evidence of Mr Simpson as negativing the pursuer's account of his accident in that Mr Simpson gave evidence to the effect that in the circumstances described by the pursuer and, in particular, the pursuer stretching to his right, the ladder would have fallen to the left and not to the right. That was indeed Mr Simpson's evidence. He was not cross-examined on it. His answer consisted of the simple assertion that if one over-stretches to the right when standing on a ladder then the ladder will go to the left. Mr Simpson is highly qualified. He holds the degree of Bachelor of Science in mechanical engineering. He is a Chartered Engineer. He is a Member of the Institute of Mechanical Engineers and a Member of the Institute of Electrical Engineers. He was formerly a lecturer at Heriot Watt University. I am content to assume that the likely direction of movement of a ladder in response to movements of a person standing on it is within his area of expertise. Taking that to be so, he was in the privileged position of a witness who may be asked to express an opinion on what is likely to have happened in certain identified circumstances. That is what he was asked to do and there was no objection to the question. His answer was clear and definite. It was, however, given entirely without any explanation. Mr Simpson provided no indication on what his opinion was based. This is not intended as a criticism of Mr Simpson. I have no reason to doubt his honesty or his reliability but he was not asked to explain or to justify this particular answer. The answer may well have been correct, although it was not clear to me how it accommodated the pursuer's evidence that he had been holding on to the left hand stile of the ladder, but I was provided with no means of evaluating, or indeed understanding why that should be. The duty of an expert witness is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence: Davie v The Magistrates of Edinburgh 1953 SC 34 at 40. When the expert is not given the opportunity to discharge that duty, his bare assertions are of little or no evidential value. Accordingly, on the matter of the likely direction of movement of the ladder, I attached no weight to Mr Simpson's opinion.

Liability
[35] On my assessment of the evidence, the pursuer has failed to prove his averments as to how the accident occurred and, moreover, the particular circumstances which, in his submission amounted to a breach of the duties imposed by regulation 5 of the Workplace (Health, Safety & Welfare) Regulations 1992. I was, however, addressed on the applicability of the regulation assuming the pursuer's factual averments were proved and it might be appropriate if I say something about this.

[36] Mr Thomson submitted that the Buccleuch Mills and, in particular, the Weaving Shed constituted a workplace in terms of regulation 5 of the 1992 Regulations. He referred to the definition of workplace that appears in regulation 2: "'workplace' means any premises or part of premises which are not domestic premises and are made available to any person as a place of work". Regulation 5 requires that the workplace be kept "in an efficient state". If bobbins protruded from the shelving then the premises were not maintained in an efficient state. If it were to be suggested that the shelving cannot be considered as part of a workplace then it must be regarded as equipment which, in terms of regulation 5, must also be maintained in an efficient state. There had been a breach of regulation 5.

[37] Mr Mackay accepted regulation 5 imposed absolute liability. He accepted that "efficient" in the context of regulation 5 meant efficient from the viewpoint of health, safety and welfare, as is provided by the Workplace Health, Safety and Welfare Approved Code of Practice which is approved and issued by the Health and Safety Commission under section 16 (1) of the Health and Safety at Work Act 1974. Mr Mackay reminded me that "maintained" ordinarily relates to matters of structural integrity, citing Cochrane v Gaughan 2004 SCLR 1073 at 1086F, a decision of my own in which I refer to the decision of the Inner House in Bruce v Ben Odeco Ltd 1996 SLT 1315. Mr Mackay accepted that the shelving here was part of the workplace for the purpose of regulation 5 but he did not accept that bobbins stored on the shelving were part of the workplace. As he put it, the 1992 Regulations were to do with a building, not with items of moveable property. Mr Mackay referred to the terms of the Council Workplace Directive of 30 November 1989, 89/654/EEC, which the 1992 Regulations were intended to implement and where, so Mr Mackay submitted, when items of moveable property were referred to, they were mentioned specifically. It was difficult to see how a number of bobbins could be regarded as a place but, in any event there was no evidence that the arrangement of the bobbins on the shelving presented a risk to health and safety. It was Mr Mackay's submission that the pursuer had failed to establish his case under the Regulations. What caused the accident (if his account is accepted) was the pursuer placing the ladder against the protruding cones.

[38] Had the pursuer established his averment that he was unable to prop the ladder against the shelving because of protruding bobbins and that it was for that reason that he propped the ladder against protruding bobbins, I would have held there to have been a breach of regulation 5. On such a state of the evidence one intended use of the shelving: the support of a ladder required for access to it, would have been rendered impossible by the position of the bobbins stored on the shelving. That to my mind is strongly suggestive of not being "in an efficient state", not only from a purely functional perspective but also from the viewpoint of health, safety and welfare. As I would hope I made reasonably clear in Cochrane v Gaughan supra at 1086F, to which Mr Mackay referred, it would not be my view that the use of the word "maintained" in regulation 5 of the 1992 Regulations has the result of limiting the scope of the regulation to matters of structural integrity. For example, the presence of water on a floor (the situation complained of in Cochrane) might have the result that the floor, and therefore part of the workplace, was not "in an efficient state". As far as the meaning of "maintained" in the context of regulation 5 is concerned, I respectfully agree with what was said by Lord Macfadyen in Butler v Grampian University Hospital NHS Trust 2002 SLT 985 at 987K:

"It is in my view necessary to have regard to the purpose of the Workplace Regulations as disclosed in the Directive to which they give effect. The purpose, it seems to me, is to secure a continuing state of efficiency. It is therefore, in my view, a relevant averment of breach of regulation 5 to set out circumstances supporting the conclusion that at the time of the accident the workplace was not efficient from the point of view of safety."

For the purposes of the regulation, "maintained" means "secured". It has no more particular meaning.

[39] Had the pursuer proved his averments in the way that I have indicated, I would not have found the statutory breach to have come about by reason of his sole fault or, indeed, his fault at all. On the evidence, he had no responsibility for a situation of protruding bobbins. I would, however, have found him to be contributorily negligent by reason of his decision to climb the ladder, with one arm full of bobbins as he described in evidence, in the knowledge that the ladder was propped on bobbins and therefore not entirely secure. The pursuer was the shift supervisor and a very experienced employee of the defenders. There was no necessity for him to climb the ladder. Any bobbins which he found to have fallen could have been laid aside rather than returned to the top shelf. At best for the pursuer, he was acting in an excess of zeal. As shift supervisor he should have known better. I would have assessed the degree of contributory negligence at 75 per cent.

Damages
[40] It is necessary that I provide my assessment of what damages would have fallen to be awarded to the pursuer had he succeeded in establishing liability on the part of the defenders. The only heads under which damages were sought by the pursuer were solatium and past and future wage loss.

Solatium
[41] The pursuer sustained a displaced fracture of the lateral tibial plateau of his right knee with destruction of the articular surface. There have been post-traumatic arthritic changes. On any view this was a serious injury. It has significantly reduced the pursuer's mobility. He described being only able to walk about 50 yards "without agony" and about a couple of hundred yards without stopping. If he is going any distance he takes a stick. He has been advised not to kneel or to lift heavy weights. He is unable to sit or stand for prolonged periods. He can no longer do the kneeling, bending and crawling which is a necessary part of the work of maintaining weaving machinery. Prior to the accident the pursuer had enjoyed fishing, parachuting, cycling and playing in a pipe band. He is no longer able to participate in any of these activities. Parties were agreed that solatium was appropriately quantified at £15,000 and that interest was exigible on one half of that sum from the date of the accident at the rate of 4 per cent per annum. Parties agreed the calculation of interest to 26 January 2005 as bringing out a figure of £2040.

Wage Loss
[42] The pursuer was dismissed from his employment with the defenders as from 12 June 1998. He has not worked since. He has taken no steps to secure any sort of employment on, so he claimed, medical advice.

[43] In February 2001 the pursuer suffered a heart attack. Since then he has experienced episodes of angina. He has a history of anxiety, depression and heavy drinking, from about February or March 2002. These do not, however, appear to be currently active problems. Review of his attendances on his general practitioner revealed that from time to time he has complained of pain from an old shoulder injury and an old ankle injury.

[44] In relation to the cardiovascular aspects of the pursuer's condition, the defenders led the evidence of Dr John Kennedy, consultant cardiologist, who examined the pursuer for the purpose of preparing a medico-legal report on 11 December 2003. Exercise on a treadmill confirmed effort induced angina. In the opinion of Dr Kennedy, his findings, together with the history that he had obtained from the pursuer and the medical records cast serious doubt over the pursuer's ability to carry out his duties as a supervisor subsequent to his heart attack, although that opinion proceeded on the understanding that the pursuer's work included heavy lifting.

[45] When the pursuer was dismissed from the defenders' employment, he was not replaced. At about the end of 1998 the defenders declared certain redundancies at Buccleuch Mills. They moved from a two shift to a one shift system of working. Had the pursuer still been in the defenders employment when they moved to a one shift system Mr Tom Scott said that he would have had to make what he described as a very difficult decision as to whom of the pursuer and the other supervisor, Mr Jackson, would have been declared redundant or demoted. In 2001 production was moved to other mills in the defenders' group. In March 2002 Buccleuch Mills were closed.

[46] In presenting a claim for wage loss, Mr Thomson founded on the pursuer's evidence that, but for the accident, he would have worked on in the factory till it was closed in March 2002 and that after that he would have got another job. The pursuer intended to work until he was 65. Mr Thomson conceded that the pursuer had had a number of supervening problems after the accident which would have caused him difficulties at work. He identified the heart problem, depression and excessive drinking. However, his submission was that the evidence disclosed that the pursuer was a stoical individual who had worked since leaving school. He had been in the employment of the defenders for a continuous period of 36 years. In these circumstances it is reasonable to assume he would have worked at least some of the time between March 2002 (when he was aged 55) and 16 April 2012 when he will be 65.

[47] Mr Thomson's approach to quantification of wage loss in the period from March 1998 until March 2002 was to take his average pre-accident net wage as being £292.81. That was the figure brought out by averaging the pursuer's wage, as set out in number 7/16 of process, over the period of thirteen weeks prior to his accident. As appeared from number 7/18 of process, there were wage increases paid by the defenders in the period between March 1998 and the closure of Buccleuch Mills (July 1998 3 per cent, July 1999 1.5 per cent and July 2000 2 per cent). Applying these percentage increases, Mr Thomson calculated that in the period between the accident and the closure the pursuer would have been paid £47,455.32, whereas he was actually paid £3,373.77. His net loss was therefore £44,081.55. Interest on that sum to the date of the end of the proof amounted to £17,279.96 (3.8 years at 4 per cent and 3 years at 8 per cent).

[48] As far as wage loss from March 2002 to date and until the pursuer reaches the age of 65 was concerned, Mr Thomson's approach was effectively to discount against contingencies by assuming five years of employment during the ten year period at the same wage as he assumed that the pursuer would have been earning at the end of his employment with the defenders. That was £312.24 per week net. Multiplying that by 52 and then by 5 brought out a total of £81,182.40 under this head. Interest was not claimed to reflect the uncertainty as to when the five years work would have occurred.

[49] Mr Mackay accepted that figure adopted by Mr Thomson as the figure for the pursuer's net weekly wage at the time of the accident was accurately stated as £292.81, if one took the average over 13 weeks. However, as appeared from number 7/16 of process, that period included three weeks in which the wage was clearly higher than usual and could not be regarded as typical. He suggested that these three weeks be left out of account, producing the materially lower average of £228.03. Mr Mackay went on to submit that, in any event, Tom Scott had given unchallenged evidence that: (i) from the end of 1998 production in the mill had reduced to the extent that the mill moved from a two-shift system to a one shift system; (ii) when that happened there was a need for only one supervisor; and (iii) if, as between the pursuer and George Jackson, the pursuer had been kept on as that supervisor the pursuer would have earned what George Jackson earned. George Jackson's earnings in the period from the end of 1998 (and before that date) were stated in number 7/17 of process which had been agreed as true and accurate in terms of the Joint Minute, number 6/33 of process. These earnings, expressed as weekly figures, were lower than the average earned by the pursuer in the 13 week pre-accident period covered by number 7/16 of process. It was not therefore appropriate to take the pursuer's pre-accident average wages based on all of the 13 pre-accident weeks in 7/16 of process as a basis for calculating what the Pursuer's earnings would have been had he continued to work for the defenders after the end of 1998. However, to use what was in fact earned by Mr Jackson as the measure of what the pursuer would have earned in the same period, but for the accident, would require it to be assumed that, but for the accident, the pursuer would have been employed by the defenders. It was Mr Mackay's submission that even if the accident had not happened the pursuer would have been dismissed on 12 June 1998 (being the date when he was in fact dismissed), for being at Drove Weaving's premises without permission and winding spools for Drove. If, on the other hand, the court were to find it established that if the accident had not happened the pursuer would not have been dismissed in June 1998 then, nevertheless, it was Mr Mackay's submission that the pursuer could not establish that he would have been kept on after the end of 1998, given Tom Scott's evidence that at the end of 1998 the defenders reduced their working from a two shift system to a one shift system that only required one supervisor. The evidence did not establish that, as between the pursuer and George Jackson, the pursuer would have been the employee retained. Moreover, even if the court were to find that the pursuer would not have been dismissed in June 1998 and that he would not have been made redundant at the end of 1998, on the evidence the pursuer would have required to be absent from his work due to his myocardial infarction on 16February 2001. There was no evidence from which the court could find that he would thereafter have been able to return to work before Buccleuch Mills closed in March 2002. Indeed, the evidence of Dr Phillips, the pursuer's general practitioner, and that of Dr Kennedy, the cardiologist, established that during this period: the pursuer was being reviewed following his myocardial infarction; that he had ongoing unstable angina; that he suffered further episodes of angina and heart symptoms in May 2001 and September 2001; and that Dr Phillips required to see him at home in February 2002 when he had symptoms of chest or heart and shoulder pain, nausea, diarrhoea, and alcohol abuse (albeit that the alcohol abuse was not recognised as such at that time). He was then very worried about his angina.

[50] As far as the period after March 2002 was concerned, it was Mr Mackay's submission that there should be no award to reflect loss of earnings in this period in that the pursuer had not established that even if the accident which is the subject matter of this action had not occurred he would have become well enough to work at any point after March 2002 and the present, having regard to his medical condition which include heart problems, drink problems, and complaints of shoulder pain from an old injury and ankle pain from an old injury. In any event, there was no evidence which would allow the court to find a date either when the pursuer could have returned to work or when work would have been available to him, within the limitations imposed by his medical condition. There was no evidence as to the level of earnings which the pursuer would have received in any such unidentified work. In his evidence, the pursuer claimed that he would have been offered a job in another weaving mill, described as Robert Nobles, in Peebles. He would have been prepared to move there from Langholm. He would even have been prepared to move to Carlisle. However, Mr Mackay pointed out that there was no other evidence to support that assertion. It was noteworthy that none of the other former employees of the defenders who gave evidence were working in the weaving industry at the time of giving their evidence. Whereas it had been argued on behalf of the pursuer that it was a factor in his favour that he had worked for the defenders since leaving school, a period of some 36 years, the fact that the pursuer had lived all his adult life in a small rural community working for one employer in the weaving industry, with no experience of any other work, would be to his disadvantage in seeking to obtain alternative work, as also would be his age, the location in which he lives, and his medical problems apart from his knee injury.

[51] There is obvious difficulty in arriving at a view as to what the pursuer's employment history would have been had it not been for the accident on 4 March 1998. I can do no more than make a very broad judgement on the basis of such evidence as I have heard. In my judgement it would have been appropriate to assess damages on the basis that the pursuer would have remained in the employment of the defenders until March 2002 but that thereafter he probably would have been unemployed. That conclusion involves rejecting Mr Mackay's submissions, based on the events that did occur, as to what I should assume would have occurred in the period March 1998 to March 2002. The evidence of the pursuer, on the one hand, and Mr Tom Scott, on the other, revealed very different perceptions as to how the pursuer was permitted to employ his time during his shift. It is hardly an exaggeration to say that it was the pursuer's position that he was free to visit Drove Weaving, whether to give assistance or for purely social reasons, whenever he wished, this being quite apart from his "official" break when he went home. I had no difficulty in accepting the evidence of Mr Tom Scott, who presented both as credible and reliable, that the pursuer had not been expressly permitted to do this. On the other hand, if the pursuer was to be believed, this is what he did regularly, presumably because Mr Scott was unaware of the fact. That being so, there was a situation that might have led to the pursuer being disciplined, and perhaps even dismissed, because of his lax approach to remaining at his place of work, in the event that the pursuer's conduct in the matter came to the defenders' attention. It had apparently not come to their attention before 4 March 1998. Had it not been for the accident it might never have come to their attention. However in the event that it did, I do not believe that the defenders, as represented by Mr Scott, would have taken the decision to dismiss a valued employee of 36 years' standing lightly. In particular, I do not believe that the defenders would have dismissed the pursuer without first having given him a warning and the opportunity to mend his ways. That is how I would expect a reasonable employer to act and there is nothing before me and, in particular, nothing in the impression I formed of Mr Scott, to suggest that the defenders would have acted other than reasonably. It is of course the fact that the defenders did dismiss the pursuer on 12 June 1998 and that for the reasons given by Mr Scott in evidence, under reference to the form IT 3 (Scot) which is number 6/22 of process. However, one of the reasons for which the pursuer was dismissed was what the defenders believed was his false statement that he had an accident on the defenders' premises, the truth being (as the defenders and, in particular, Mr Scott believed) that he sustained an accident elsewhere. I accept that Mr Scott's belief that the pursuer had made a false statement was genuine, albeit, as Mr Scott accepted, based on impression rather than evidence. That I have held that this belief was not well founded is perhaps unimportant. More critical is that I have to consider what would have happened had the accident not occurred. Had the accident not occurred there is no basis for concluding that the pursuer would have been dismissed on 12 June 1998. While his perception of what was consistent with the proper discharge of the duties of his employment might have led to him being dismissed on some other occasion, I am unable to conclude that this probably would have happened, firstly, because his conduct might never have given rise to disciplinary action and, secondly, because if it did I would expect the initial action to have been in the form of a warning which I would expect the pursuer to have heeded. As far as the choice between the pursuer and Mr Jackson for retention in the post of shift supervisor was concerned, Mr Scott indicated that the choice would have been difficult had the situation arisen. I took Mr Scott to be indicating that the claims of the two candidates would have been fairly evenly balanced. In that I heard evidence of the pursuer's long service and his acknowledged technical competence, while I heard nothing about Mr Jackson's qualities (which may very well be excellent) I consider that I am entitled to hold that it is probable that the pursuer would have been chosen as the sole shift supervisor. What would have been the consequences of the pursuer suffering a heart attack in February 2001 is somewhat more problematic. I am not satisfied that it is appropriate to approach the question from the perspective of onus of proof. What seems clear from the evidence as to how the defenders responded to the pursuer being injured in March 1998 is that he would not have been immediately been dismissed but, rather, would have continued to have been paid for a period of time. In the year or so between the pursuer's heart attack and the final closure of the Buccleuch Mills the pursuer had a number of health problems, although anxiety and clinical depression appear only to have been recognised at the end of that period. As far as purely cardiovascular symptoms are concerned, having regard to Dr Kennedy's evidence and my understanding of the nature of the job of supervisor, I am not satisfied that the pursuer could not have returned to work after a period of sick leave. Again, I proceed on the basis that the defenders would have treated the pursuer in the way that a reasonable employer would treat a long-serving employee. To have done otherwise would have risked a claim in respect of unfair dismissal. In any event, when Buccleuch Mills were on the point of closure I can see no reason for the defenders to have accelerated a dismissal which was inevitable by reason of redundancy.

[52] Once the question comes to be what the pursuer's employment prospects would have been on the closure of Buccleuch Mills in March 2002, I have been persuaded by Mr Mackay's arguments. As of that date the pursuer was just short of his 55^th birthday. His whole career had been spent working for the defenders and their predecessors at the Buccleuch Mills in Langholm. He has a history of health problems additional to those that result from his accident. I am sceptical about the pursuer's expression of willingness to move to Peebles or Carlisle. Disabled as I accept that he is, I find it significant that he has taken no steps whatsoever to find alternative employment of any kind. More important, there was simply no evidence as to what alternative employment would have been available to the pursuer on the closure of Buccleuch Mills.

[53] There is the question of what figures should be taken as the assumed wages that the pursuer would have earned between March 1998 and March 2002. In that I have assumed that the pursuer would have been employed in the capacity that Mr Jackson was employed from December 1998, wage loss from that date would have to be calculated on the basis of what Mr Jackson earned in that period. As far as the period up to December 1998 is concerned, I would consider it appropriate to calculate wage loss on the basis of the pursuer's thirteen week pre-accident average. Mr Mackay may be correct to say that this has been unduly inflated by the inclusion of untypical weeks but, if they wished to develop that point, it was open to the defenders to lead evidence to that effect. They did not do so. There is no speciality about thirteen weeks. It is no more than the conventional period in respect of which wages information is sought from employers. However, if an employer who is also a defender provides information for the thirteen weeks previous to an accident, and provides nothing more, then it appears to me that the court is entitled to proceed upon the basis that that period is typical and to assess damages accordingly. I have set out my basis for quantifying wage loss for the period March 1998 to March 2002. I do not propose to do the arithmetic necessary to produce the figure that I would have awarded. Had I been awarding damages I would have brought the case out by order with a view to being addressed on matters of arithmetic and the consequent interest calculation.

[54] I have found that, on the balance of probabilities, the pursuer would not have been employed subsequent to March 2002, irrespective of whether he had had an accident on 4 March 1998. I have, however, also found that he was significantly disabled in that accident and that, therefore, if it be assumed in his favour that he would have sought employment in March 2002 had it not been for these disabilities, as he claimed he would, such prospect as he had of obtaining employment on the closure of Buccleuch Mills has been reduced. Put differently, the accident has reduced his earning capacity. There are cases where that can sound in damages, often quantified as a rather arbitrarily determined lump sum. In the absence of rather better evidence of there being a market for the pursuer's services in March 1998 and a willingness and ability on the part of the pursuer to go into that market with a view to finding a job, I am not persuaded that this is such a case. I would therefore have made no award of damages in respect of the period subsequent to March 2002.

[55] I shall accordingly repel the pursuer's first plea-in-law. I shall uphold the defenders' second and third pleas-in-law. I shall assoilzie the second defenders. I shall reserve all questions of expenses.

Post-script
[56] By way of post-script, because the proof required to be adjourned, a transcript was made of the evidence of the first four days which, as is the usual practice, had been recorded on audiotape. As is apparent from that transcript, the transcriber experienced difficulty in making out everything that had been recorded. Much was inaudible. The reason for this is not known but, as was forcibly put by Mr Mackay, it cannot be satisfactory that, for whatever reason, the recording system used in court produces a tape which is other than completely audible and capable of accurate transcription.