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Cite as: [2007] ScotCS CSOH_79, [2007] CSOH 79

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 79

OPINION OF LORD TURNBULL

in the cause

ALEXANDER BLOOMFIELD WILSON

Pursuer;

against

BAE SYSTEMS PLC

Defenders:

________________

Pursuer: Ms Doherty; Lawford Kidd, W.S.

Defenders: Cowan, Solicitor Advocate; Simpson & Marwick, W.S.

26 April 2007

Introduction

[1] In 2003 the pursuer was employed as a Site Supervisor by Reliance Security Services Limited. He worked at the defenders' premises at Bishopton. At about 06.25 on 27 March he completed a night shift and was preparing to return home when he fell and sustained an injury to his right ankle. In the present action he claims damages from the defenders as a consequence thereof. Parties were agreed as to the appropriate level of damages to be awarded in the event of liability being established.

[2 ] At the proof the pursuer gave evidence and led the evidence of a work colleague Mr Frank Tweed. The defenders led the evidence of Mr George Gibson, who was their Site Manager at Bishopton in 2003 and Mr George Coyle who was their Manager for Services at the site.

The Defenders' Site

[3 ] The defenders' premises at Bishopton covered a large area where a number of different functions were carried out. Entry and exit to and from the site was by roadway running generally east to west. Vehicles travelling in either direction required to stop at barriers either side of a gate house. The barriers were raised and lowered from within the gate house. Adjacent to the gate house and set back from the northern side of the roadway was a larger and generally square shaped building known as the Security Lodge. Traffic leaving the site would use the part of the roadway nearest to the Security Lodge whilst vehicles entering would be on the other side of the roadway. Access to the Security Lodge was by a flight of three steps located at the south west corner of the building. The gate house was in the roadway directly south of this corner. The steps to the security lodge were approached by walking across a red paved area which bordered the southern wall of the Security Lodge and ran parallel to the entry and exit road. This paved area also extended some way up each of the two sides at either end of this wall.

[4 ] The area generally to the west of the Security Lodge comprised an open grassed area which extended to a further roadway providing access within the site to an administration area. Adjacent to the Security Lodge and generally at its northwest corner was a further building which contained staff changing rooms and housed lockers for the use of the site security employees. On the other side of the entrance and exit roadway, generally south of the changing hut, was a car park area used by the pursuer and other employees.

[5 ] Running parallel to the western wall of the Security Lodge was a concrete pathway which extended all the way up to the wall of the changing hut, joining the wall effectively at right angles. The western edge of this path was bordered by the open grassed area. Persons using this pathway to travel between the Security Lodge and the changing hut required to cut across the grass area at or near to the top of the path and make their way along to the doorway of the hut located at the southwest corner of that building. A path had been worn across the grass from the concrete pathway to the doorway of the changing hut.

The Pursuer's Evidence

[6 ] The pursuer gave evidence that on completion of his shift in the morning of 27 March 2003 he planned to drive home with his colleague Mr Tweed. They both lived relatively near to each other and took it in turns to drive one another to and from work. The pursuer's evidence was that on leaving the Security Lodge he turned right taking the concrete pathway up towards the changing rooms. He required to speak to a colleague Mr Speed who was there preparing to commence day shift. Having done so he came back across the worn grass path and rejoined the concrete pathway heading towards the car park where Mr Tweed was waiting. As he did so he tripped over a manhole cover and fell to the ground causing his injury. He was immediately in severe pain. Having fallen he looked back and saw that the manhole cover was not properly located and was protruding into the pathway. He had not noticed this as he made his way down the concrete pathway. Mr Tweed came to his assistance and the pursuer told him what had occurred. The pursuer went on to explain that other members of the security staff came out from the lodge to his assistance, one of whom was Mr Alan Jones. He explained that he also told these persons what had happened. The pursuer was then assisted into his car which Mr Tweed drove him home in. He later attended the Inverclyde Royal Infirmary and received treatment there.

[7 ] The manhole cover which the pursuer claimed to have tripped over was shown in photographs number 6/2 of process. It gave access to a sewer and was located at a point where the red paved area extending up the western side of the lodge met the concrete pathway. The red paved area extended from the roadway up the western side of the building and past the entrance steps. The pursuer explained, as could be seen from the photographs, that as he made his way back down the concrete path the path was bounded by the security lodge on his left and the grass verge on his right. Just prior to the point where the concrete path meets the red paved area the concrete path widens to the right hand side. The grass verge turns at a right angle at this point. It is here that the manhole cover is located. The extra width of the concrete path is mostly, but not entirely, taken up by the manhole cover. The red paved area is then wider than the concrete path from the point at which it meets the path all the way down to the roadway. The pursuer's evidence was that the natural route which he took led him down the right hand edge of the concrete pathway drifting over further to the right as the path widened near to the commencement of the red paved area. In this way he had come to be walking near to the location of the manhole cover. The cover was lying at an angle over the opening and the cover was protruding into the area of the concrete pathway thus causing him to trip.

[8 ] The pursuer went on to explain that contractors from the company known as NTL had been on site prior to his accident. He understood that they were seeking to lay some cables from the security lodge to the administration building in order to provide internet access. He explained that in trying to locate the ducting channel within which cables were carried these contractors had been lifting a number of manhole covers all around the area between the security lodge and the roadway to the west of it. Although it had been averred on his behalf that these contractors were on site about a week before his accident the pursuer stated that he had checked records and ascertained that representatives of NTL had in fact been on site on the 25 and 28 February. These dates were consistent with entries in number 6/18 of process, the security gate signing in book, and number 7/1 an extract of the defenders' permit to work register. The pursuer's position was that if the representatives of NTL were not responsible for leaving the manhole cover in the condition in which he encountered it then he had no idea who could have been. However he explained that it was clear someone must have lifted it and failed to replace it properly. The pursuer maintained that it was not difficult to remove the cover and explained that he had been present only a few weeks ago when the photographs in number 6/2 of process had been taken. On that occasion Mr Gibson, the defenders' Site Manager, had lifted the cover out using only a screw driver and his hands. He had replaced it by simply lowering it back.

The Evidence of Mr Tweed

[9 ] Mr Tweed, who was 60 years old and a work colleague of the pursuer, gave evidence on his behalf. He confirmed that he had been on the same shift as the pursuer immediately prior to his accident. Mr Tweed's evidence was that he and the pursuer had, as was normal, been in the security lodge at the conclusion of their shift. Mr Tweed had seen the pursuer leave the lodge only a few minutes ahead of him. As the pursuer left Mr Tweed saw him turn right heading in the direction of the changing hut. He himself put his jacket on, collected his bag and then walked out heading across to the car park to wait for the pursuer. Mr Tweed explained that as he got about three quarters of the way across to the car park he heard the pursuer shout. He turned round and saw him lying on the ground. He immediately went across to assist. Mr Tweed explained that he did not see the pursuer falling but when he went over to him he said that he had tripped over "the cran". Mr Wilson was pointing over to the manhole cover as he was explaining this. ~~and~~ Mr Tweed's evidence was that when he looked over he could see that the manhole cover was indeed angled over onto the path. Mr Tweed then assisted the pursuer into his car and drove him home.

[10) Mr Tweed attended for his next shift on that evening as usual. On doing so he noticed that the cover was properly positioned. He did not know who had done this. Mr Tweed was taken to number 6/11 of process which is a short statement in his handwriting. He explained that he provided this to Mr Gibson on 11 April 2003 in response to a request made of him. He explained that Mr Gibson had told him that the pursuer was claiming he had tripped over the manhole cover and asked if he had seen this. He replied that he had not and Mr Gibson had asked him to give a statement setting out only what he saw, not what he surmised may have happened, nor what anyone had told him had happened. The statement is in the following terms:

"At approx 6.25 hrs on 27 March I was standing at my car waiting to give Alex a lift home. Alex emerged from the changing room he tripped approx 15 yards from the changing room door. I was 40 yds away from the incident I can therefore not be certain what caused Alex to trip".

[11) In examination in chief Mr Tweed was asked why he had not included in this statement a reference to seeing for himself that the manhole cover was displaced. He responded by explaining that his purpose in giving the statement was to assure Mr Gibson that he had not seen the pursuer tripping. With hindsight he said he ought to have included reference to what he saw. In cross-examination Mr Tweed accepted that in fact he had included references in his statement to what he surmised, for example that "Alex emerged from the changing room door" and "I can therefore not be certain what caused Alex to trip". He accepted the first of these points was surmise. As to the second he explained that he assumed Mr Wilson did not simply lie down on the ground. It was put to Mr Tweed in cross-examination that, on the same morning as he provided the written statement, he had given a different verbal account to Mr Gibson. It was suggested to him that he told Mr Gibson he had seen the pursuer running across the grass. Mr Tweed denied this explaining that he had never seen such a thing and would therefore have no reason to say so.

Defenders' Case

The Evidence of Mr Gibson

[12 ] Mr George Gibson worked at the defenders' site in March 2003. He now worked for them at Barrow in Furness. He had been the Site Manager at Bishopton. He had responsibility for health and safety at the Bishopton site and for investigating any accidents. In evidence Mr Gibson explained that he had been made aware of an accident upon his arrival at the site around 9am. He had been informed in general terms that Mr Wilson had fallen in the grass area behind the security lodge. Mr Gibson explained that although he could not remember when, he did go over to the area in order to have a look around. The manhole cover was in its normal position at that time.

[13 ] Mr Gibson's evidence was that although NTL had been on site some weeks before the pursuer's accident he thought it highly unlikely that the cover had remained out of position throughout that time. He explained that the defenders' employees were asked to report anything around the site that required attending to or might pose a risk.

Mr Gibson's account of his discussion~~discussions~~ with Mr Tweed was that he spoke to him on the first occasion on which he saw him after the accident. By that stage, as he said, the drain story had already emerged. His account was that Mr Tweed had told him that he had shouted on Mr Wilson who turned and ran towards him and then fell. As Mr Gibson understood it Mr Tweed was shouting to Mr Wilson because he was in a hurry to get home. Mr Gibson explained that he asked him to put this in writing but when he received the statement from Mr Tweed the two accounts did not match. He did not question this or raise the difference in any way. Nor did he record, in any fashion, that Mr Tweed had earlier that same day given him an entirely different version. In cross-examination Mr Gibson acknowledged that he had completed the entry in the accident book, an extract of which was within number 6/11 of process. In that entry, completed on the day of the accident, he recorded information which he explained he must have received from the day shift security staff. The entry reads:

"Mr Wilson claims he fell over a drain cover whilst walking to his lift".

The Evidence of Mr Coyle

[14 ] Mr Coyle was fifty years old and was the defenders' Manager for Services at the Bishopton Site. He had worked on the site for twenty seven years. Around lunch time on the day of the pursuer's accident Mr Coyle had been requested by Mr Gibson to see if he could ascertain any probable cause for an accident. He inspected the area around the security lodge and observed the manhole cover in its proper position. CCTV footage had been lodged which showed a view around the entry and exit road at the area of the gate house. An examination of this footage showed Mr Coyle commencing this inspection around 1.00 in the afternoon and leaving again around 1.10.

[15 ] Mr Coyle explained that he had some involvement with the representatives of NTL who attended the site on 28 February. He saw from number 7/1 of Process, an extract from the Permit to Work Log, that they had been issued with a permit on that date. He confirmed that NTL had been investigating the possibility of laying fibre optic cables and acknowledged that they would have required to lift various covers in this exercise. Mr Coyle's view was that he would have expected them to lift ducting covers giving access to cables rather than a drain cover giving access to a sewer. However he himself spent no time with the NTL representatives and could not comment on what they had actually done. Mr Coyle gave an explanation as to how the defenders' permit to work system operated. He thought that it was highly unlikely that anyone else would have been able to lift the manhole cover under discussion without authorisation, which would be given in the form of a permit to work. Mr Coyle's evidence was that he found it very difficult to accept that the cover could have been left out of position throughout the period between the work done by NTL and the date of the pursuer's accident. He explained that all of the defenders' employees had been trained in their safety training observation programme ("STOP"). Employees were expected to look around for dangers as they made their way about the site. In addition he himself tended to be in and out of the security lodge a number of times each day. The steps giving access to the lodge were no more than about a metre or so away from the manhole cover. He had never noticed it being out of position. Mr Coyle also gave evidence that he had watched the CCTV footage for the morning of the pursuer's accident. Because of the positioning of the camera it was not possible to see the manhole cover nor the area of the pathway where it was situated. However he was able to see that there were a number of individuals walking in the general direction of the manhole cover at various points in the morning. It was not of course possible to see whether any of these persons approached the cover itself.

Pursuer's Submissions

[16 ] On behalf of the pursuer Miss Doherty invited me to hold that at the time of the pursuer's accident there had been an incorrectly positioned manhole cover on the pathway leading from the area of the changing rooms to the security lodge. She invited me to hold that the pursuer had tripped over this cover causing him to fall and to thereby sustain injury. Miss Doherty invited me to arrive at these findings on the basis of the evidence of the pursuer and that of Mr Tweed, each of whom she invited me to hold as both credible and reliable. Miss Doherty submitted that the pursuer did not require to establish who had been responsible for removing the cover prior to his accident but pointed out that there had been evidence as to how it might have come to be moved. Equally, she submitted that the fact that the cover was in its normal position by the time of Mr Coyle's inspection did not undermine her case. She relied on the evidence that it was an easy thing to do and the acknowledgement by Mr Coyle that if someone had thought it constituted a danger then they might well have replaced it.

[17 ] On the matter of contributory negligence Miss Doherty submitted that the only relevant duty pled against the pursuer was to watch where he placed his feet. She submitted that this was simply a duty to keep a general observation and not to study the ground in front. If contributory negligence was to arise Miss Doherty also submitted that I should take into ~~take into~~ account matters such as the state of the lighting and the similarity in colour between the pathway and the manhole cover. Her argument was that any finding of contributory negligence should be small. By way of guidance she referred me to the decision of Sheriff Morrison in Brown v City of Edinburgh Council 1999 SLT (Sh Ct) 43 where a finding of 20% had been made in respect of a man who stepped into a pothole in a pavement.

Defenders' Submissions

[18 ] On behalf of the defenders Mr Cowan invited me to hold that neither the pursuer nor Mr Tweed was a ~~were~~ credible or reliable witness. . He presented detailed submissions in ~~support of these propositions in~~ which he sought to analyse the relevant testimony and to identify various discrepancies which he argued were present and assisted in the resolution of the questions before me. He pointed out that although there were contemporaneous records, which noted that the pursuer had tripped over the cover, neither the accident book nor the hospital records mentioned the cover being out of place. In Mr Tweed's case Mr Cowan submitted that there was no acceptable explanation as to why he did not note in the written statement provided to Mr Gibson that he had seen the manhole cover out of position immediately after the pursuer fell. Mr Cowan also suggested that it was inconceivable that the manhole cover could have been lying out of place throughout the period since NTL were working at the defenders' premises. He pointed out that there was evidence of regular use of the path both by security personnel and by cleaning staff. In addition there was regular movement of personnel in and out of the security lodge. Since the manhole cover was in such close proximity to the steps to the lodge it made no sense to contemplate it lying out of place and not being noticed. He also founded on the unchallenged evidence that the cover was in place when checked within a few hours of the pursuer's accident. He queried how this could have been replaced without a report of this occurrence being available. Mr Cowan also pointed out that a number of the pursuer's colleagues had come to his assistance after the accident and yet only Mr Tweed had been called to speak to the condition of the cover. He raised the question of why these individuals would not have been able to see that the cover was out of position and to testify to that effect. In relation to Mr Tweed Mr Cowan submitted that his credibility was undermined by the evidence of Mr Gibson who spoke to being given a contrary account when he first spoke to Mr Tweed.

[19 ] Mr Cowan further submitted that if I was to find for the pursuer then I should find him to have been liable in contributory negligence to a significant extent. He suggested that a figure of 50% would be appropriate and vouched that by referring me to the decision of Lord Justice Clerk Ross (sitting in the Outer House) in McClafferty v British Telecommunications plc 1987 SLT 327.

Discussion

[20 ] By the stage of submissions parties had resolved certain matters of importance to the question of liability. The pursuer restricted his claim to a breach of Regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992. The defenders acknowledged that if I was to find that the manhole cover was incorrectly placed, so as to protrude onto the pathway, then that would constitute a breach of Regulation 12(3). For these purposes it was recognised that the pathway included the concrete base into which the manhole was situated. These items of agreement were helpful and allowed the case to focus into a question of whether or not the pursuer had established that he tripped over the manhole cover because it was out of position.

[21 ] The pursuer and Mr Tweed both gave clear evidence that they saw the manhole cover out of position and protruding onto the pathway. However, as set out above, certain ~~much of the~~ other circumstantial evidence tended to call this into question. In submissions Mr Cowan asked me to find that ~~they~~ both witnesses lacked credibility on this matter. By this I took him to mean that they had lied. I did not find this an easy submission to deal with and will return to some of the reasons for this later.

[22 ] The underlying basis for the argument advanced by Mr Cowan was the absence of any evidence that the cover had been out of position prior to the pursuer's accident. I did not find it difficult to accept that the representatives of NTL may well have lifted this cover during their time on site. It is clear that they were looking to route cables underground through ducting channels within this very area. No one was with them when their investigations were carried out and I saw no merit in the assumption made by Mr Coyle that they would not have lifted this particular cover as it gave access to a sewer and not a ducting channel. There was no sign or wording on the cover to indicate what was underneath and Mr Coyle himself said that he did not know what the cover gave access to until he checked. Neither was the evidence as to the "Permit to Work" system of any assistance in this matter. Whilst no doubt providing authority to carry out works, these records did not purport to identify what any individual contractor in fact did or was even supposed to do. What I did see force in however was Mr Cowan's submission that there would be no obvious reason to leave such a cover out of place and if someone from NTL did do so surely it would have been noticed over the four weeks or so prior to the accident. In this regard it was correct to note that a number of individuals would have walked passed the cover when using the pathway over this time. On the very day of the accident the pursuer himself walked up the pathway and the colleague to whom he went to speak, Mr Speed, must also have walked both up and down the path. In addition of course all of those entering and leaving the Security Lodge must have been within a few metres of the cover. Although I found little assistance on this matter in the evidence of Mr Gibson, it was clear that the cover was in place when Mr Coyle carried out an examination around lunch time on the day of the accident. I considered that Mr Cowan was correct to point out how unlikely it was that someone would simply have replaced it after the accident without leaving it to be seen as part of the investigation. As he rightly argued, these factors combined to suggest that it was unlikely that the pursuer's accident was caused in the way he described.

[23 ] However, as set against these matters, the pursuer undoubtedly fell over and landed on the ground in the area near to the bottom of the pathway adjacent to the steps to the security lodge. He can be seen falling violently to the ground in the CCTV footage. Something clearly caused him to do so. In the footage Mr Tweed can be seen assisting the pursuer to his feet. Once he is upright the pursuer can be seen to be pointing and gesticulating in the direction of the manhole cover. One of the others who came to his assistance was Mr Jones. It was a matter of agreement that Mr Jones was the author of the entry in the accident book number 6/14 of process which recorded that the pursuer had tripped over the manhole cover. The same account is recorded in the accident and emergency form within the records of the Inverclyde Royal Hospital number 6/6 of process. This account must have been provided to the hospital staff by the pursuer upon his examination. The same account features in the accident book completed by Mr Gibson on the basis of the account given to him by the day time security staff. Accordingly, I was prepared to accept that the pursuer had given this account from the moment of getting to his feet after tripping. It seemed to me that the ~~The~~ only reasonable inference to draw~~which could be drawn~~ from this conclusion was that the pursuer genuinely thought that this was what had occurred. As his submission developed and came to touch upon these adminicles of evidence I understood Mr Cowan to accept that the pursuer must have genuinely been of this view.

[24 ] When properly positioned the manhole cover was flush with the pathway and would have caused no obstruction. It is of course possible that the pursuer tripped over his own feet or perhaps even the grass verge. However, if any such occurrence was the explanation for his fall it is difficult to understand why he would immediately blame an object which could not, in ordinary circumstances, have caused him to trip. It seemed to me that once it was accepted that the pursuer genuinely tripped and immediately and genuinely thought that the trip had been caused by the manhole cover, it became quite difficult to do other than to conclude that he must have been correct in saying that when he looked back he saw it to be out of position. Beyond immediately fabricating the account given there~~There~~ seemed no other basis upon which he could have come to blame the manhole cover. I was not deflected from this conclusion by the fact that in none of the documents recording the accident did it say that he had tripped over a misplaced or open manhole cover.

[25 ] Before concluding my assessment of the pursuer's evidence and the associated submissions ~~on it~~ it might be helpful to turn to the evidence of Mr Tweed. When it came to an examination of his testimony an attack was mounted on two grounds. The first was that he and the pursuer were colleagues who for a time shared the journey to work. On this basis it was suggested that there was an opportunity to discuss the case and agree an account, or at least for Mr Tweed to be influenced by listening to the pursuer's account of it. I saw no merit in this ground of attack. The second was that Mr Tweed's credibility was undermined by the dispute between him and Mr Gibson as to whether a different explanation had first of all been given. This ground of course was dependent on my assessment of the evidence of Mr Gibson on this matter. Mr Gibson impressed me as being an entirely honest witness and was commendably straightforward in his manner in court. However, he was particularly vague in his recollection of various matters, for which I do not criticise him. These included his recollection of his inspection of the area of the accident and when this took place. I put this down to nothing more than the passage of time, taken along with all of the other demands which have no doubt occupied him in his position. However, if he was recollecting the matter of his discussions with Mr Tweed accurately then certain aspects were very difficult to understand. Why he would simply accept, without comment, a written account, given at his own request, which was different from ~~bore no comparison to~~ the verbal account he had been given only a few hours earlier was not satisfactorily explained.

[26 ] In the end of the day I did not find it possible to come to a concluded view on what was said to be the conflict between these two witnesses. In my view the entire evidence on this issue turned out to be so confused and unsatisfactory as be of very limited assistance. I say that for these reasons. In cross examination of Mr Tweed it was put to him that he had told Mr Gibson that he had seen the pursuer running across the grass. Mr Tweed's response was that he said no such thing as he had seen no such thing. It was clear from the CCTV footage that whatever else happened the pursuer had not been running across the grass towards Mr Tweed. Accordingly one could see the sense of Mr Tweed's response. When Mr Gibson came to give his own evidence he stated in evidence in chief that Mr Tweed's first account was that he was waiting to give Alex a lift home, he turned and saw Alex run towards him and fall. Mr Gibson made no mention of seeing him running across the grass. No attempt was made by Mr Cowan to clarify or expand upon this passage of evidence. In the end of the day it seemed to me that what was suggested to Mr Tweed as being the content of the conversation and the evidence of Mr Gibson on the matter were really quite different. In my judgement the difference was such as to render this chapter of evidence of limited~~almost no~~ value in seeking to assess the testimony of either witness. Accordingly, in my assessment of the submissions made, each of the lines of attack on the evidence of Mr Tweed came to very little.

[27 ] I now return to the submission advanced on behalf of the defenders that the pursuer should be rejected as an untruthful witness. To some extent this was inconsistent with the acceptance that the pursuer genuinely thought that he had tripped over the manhole cover. However, to my mind Mr Cowan had never put this as a clear proposition to the pursuer. He did put in one question to him that the manhole cover was correctly positioned at the time of his accident and it may be, as he submitted, that the logical inference from this proposition was that the pursuer must have been lying. However, I was left with some reservations as to the force of this. The proposition which was put was in the following terms:

"at the time of the accident regardless of whether you were coming down the pathway, or coming down the steps, or whatever, the manhole cover was correctly positioned".

[28 ] The pursuer's account of his accident had nothing to do with coming down the stairs of the security lodge, or anywhere else other than the pathway. No evidence to suggest anything different was led or elicited. Accordingly the proposition put contained a number of potentially confusing elements. By the stage of submissions when this line of argument came to be advanced I was left in real doubt as to whether this question had given the pursuer a fair opportunity to comment on the proposition that he had lied in his testimony. In this context I was conscious of the fact that no other form of attack on the pursuer's character or standing had been advanced. On the other hand his own counsel, as part of the introduction to his testimony, took from the pursuer that he had served for a number of years as both a local councillor and a justice of the peace. For these reasons, although I was prepared to consider Mr Cowan's submissions on this point, I felt that the proposition had to be examined with particular care. In the result, for the reason outlined above I came to the view that there was no merit in the submission that the pursuer had been untruthful in the essential aspects of his testimony. As explained, I arrived at the same view in respect of Mr Tweed. Although various other points were made as to the credibility or reliability of each I found that none of these points carried any weight. Although I found it unlikely that the manhole cover had been out of place for a number of weeks I did not find that I could rule this out as a possibility. In any event it mattered not who left the cover out of place nor when. Nor did I find that I could rule out the possibility that it had been replaced after the pursuer's accident. The evidence as to the extent and nature of the enquiry conducted into the circumstances of the accident was unimpressive and incomplete.

[29 ] Accordingly although I recognised that there were aspects of the evidence which tended to suggest it was unlikely that the pursuer's accident was caused in the way he described, I came in the end to the view that both he and Mr Tweed fell to be regarded as witnesses who were both credible and reliable in the essentials of their testimony. For this reason I was satisfied that the pursuer had discharged the burden of proving his case to the required standard.

[30 ] I accepted Mr Cowan's subsidiary submission that if liability was established the question of contributory negligence fell to be addressed. I accepted that in the circumstances under discussion the pursuer had a duty to take reasonable care to watch where he placed his feet. I did not think that the state of the lighting at the time of the accident was such as to impact upon this duty. I agreed that it was relevant to note that the manhole cover was largely the same colour as the pathway. The pursuer was also legitimately looking in the general direction of his destination. In the whole circumstances I consider that the pursuer was contributorily negligent to the extent of 20 per cent.

[31 ] In light of these findings I will grant decree in the pursuer's favour. Parties were agreed by joint minute that the appropriate figure for solatium at full liability would be £6,000, with two thirds attributable to the past. As I have found the pursuer 20% contributorily negligent I will make an award of £4,800. Of that figure £3,200 is, in terms of the parties' agreement, attributable to the past. Interest will run on that sum at 4% per annum from 27 March 2003 to the date of decree. Parties were also agreed as to the appropriate awards in respect of wage loss. Accordingly I will award the sum of £256.46 as past wage loss with interest thereon at 8 per cent per annum from 2 May 2003 until decree and the sum of £128 as future loss of earnings.