Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 63
	OPINION OF LADY CLARK OF CALTON in the cause WILLIAM CAMPBELL Pursuer; against ELLIOTT GROUP LIMITED Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Hastie; Digby Brown SSC

Defenders: Balfour; Simpson & Marwick WS

6 May 2009

Summary
[1] In February 2005 the pursuer was employed as a labourer by the defenders. He worked at the defenders' premises at Ashley Drive, Bothwell. In the pleadings, the pursuer avers that whilst carrying cans of paint across the yard from the workshop to the paint store, he caught his foot in a pot hole, or rutted area, which caused him to fall onto his left knee to his injury. The pursuer's claim is based on breach of the defenders' duty at common law to take reasonable care for the safety of the pursuer and breach of statutory duty under the Workplace (Health, Safety & Welfare) Regulations 1992, regulations 5 and 12. The defenders contested the pursuer's factual account, alleged contributory negligence on the part of the pursuer and contested the consequences and effects of any accident suffered by the pursuer.

The evidence

[2] There were certain matters agreed in the joint minute of admissions, 23 of process. Evidence was led from the pursuer and Mr Ian Smith, a former employee of the defenders who stated he witnessed events on 4 February 2005. Mr William Deas and Mr Dougal McGilvery, employees of the defenders in February 2005 gave evidence about the working conditions, layout of the premises and the condition of the surface of the yard area. There was also evidence from Doctor Marshall, the pursuer's general practitioner, and from an expert witness, Mr S K Mukherjee, Consultant Orthopaedic Surgeon. The only witness led on behalf of the defenders was an expert witness, Mr Iain McKay, Consultant Orthopaedic Surgeon.

Conditions in the yard and events on 4 February 2005
[3] The evidence about the layout and condition of the yard surface did not appear to be seriously disputed on behalf of the defenders. The plan drawn by the pursuer in the witness box was lodged as a production without objection. The plan, (6/8 of process), which is not to scale, gives an approximation of the constructed layout of the site. The yard was used to store portacabins of varying dimensions and weights. The largest portacabin was approximately 30 feet and 8 tonnes in weight. There were frequent movements of the portacabins into different positions in the yard. The pursuer, Mr Smith, Mr Deas and Mr McGilvery, all described the surface of the yard over which an employee had to walk to access the paint store from the workshop. It was not disputed that the concreted area outside the workshop did not extend as far as the paint shop and that in order to access the paint shop it was necessary to walk a distance of some metres over the yard. The surface of the yard which was not concreted, was bare earth compacted to some extent and variable depending on weather conditions. The surface also varied depending on the position of portacabins which were stored in the yard. Lorries and other heavy vehicles churned up the surface of the yard during their frequent and irregular movement over the yard. A forklift truck which weighed over 4 tonnes with tyres about five feet in diameter, was used to move the portacabins. The pursuer described the surface as "like the Somme". Mr Smith described the yard like a building site with ruts and holes and general rubble. Mr Deas described some of the surface as "mush" and rutted and softened by the rain. He described the ruts as measuring one to eight inches deep with water lying on top. He said that the surface caused difficulty to employees walking over it. The workforce "struggled with it". He described how he and the pursuer took photographs 6/1 of process, sometime after the accident. The photographs did not show the locus of the accident but were described as an example of the general conditions of the yard surface. Mr McGilvery described the general surface of the yard as badly rutted with quite a few pot holes. He said that the pot holes could be up to eighteen inches deep and the ruts about six to nine inches deep. He said the ground conditions were made worse by the movements of vehicles. The pursuer stated that complaints about the general conditions had been made to the defenders.

[4] I now turn to the evidence in relation to the events on 4 February 2005. The pursuer said that a number of cans of paint were left outside the workshop on the concrete area by a supplier. He and Mr Smith were moving the paint cans to the paint store which was beyond the concrete area. He had to walk between the portacabins. There was no designated route. He was on his second journey to the paint store. He was about ten metres off the concrete surface in the open yard area. He said he was walking along carrying two or three paint cans filled with paint in both hands. The next minute "he was right over". He went down falling to his left. He demonstrated this falling movement in the witness box displaying a movement to the left. He said that the ground was all rutted and there was water on the surface and "sometimes you cannot see how bad it is". His left leg "went down". He lost his balance. He could not see whether the ground was level. He got up. He limped a bit. He felt a sharp pain in the inside of his left knee. He hobbled about a bit. He thought that the injury might be superficial and that the problem might go away but that it might not. Some time later when he saw his supervisor, Michael Grove, he said that he told him about his knee which was swollen but thought that it might get better. The pursuer told Michael Grove that he would wait and see what happened. The pursuer said that the defenders had been good to him in giving him a job at his age. He did not want to make a fuss. He reported the accident in March in writing but he said that his friends at work and Michael Grove knew about the accident shortly after it occurred. An accident report form was completed by the pursuer on 15 March 2005 (7/3 of process). The pursuer accepted that he had not made a written report on the day of the accident and that he had been given a verbal warning about that failure. In cross-examination the pursuer accepted that he was well aware of the ruts and the uneven ground. He agreed that pot holes were visible but said he thought there was water over them. He could not remember. He thought there were puddles. He said the place was like a bomb site. He said that he had previously fallen before into a hole full of water but he had not suffered injury on that occasion. He said that he paid attention to where he was walking. Under reference to 7/4/5 of process, the pursuer said that the accident about which he was complaining on 4 February 2005 was a twisting injury. "When you fall over, he said, you twist". He said he fell and twisted his knee. He tripped or stumbled on uneven ground. He did not accept that the description in the medical notes was a description of some other accident which occurred some months or a year before February 2005. He had raised with his general practitioner the error in her notes when he was told by his solicitor what the notes said. In re-examination he said he felt a little tear at the time of the accident. He accepted that he did not watch his feet 100% of the time. He did not think it was possible to walk round the puddles because "it was all puddles". The pursuer has a history of varied employment including a period of 6 months work as a postman before he began employment with the defenders. His employment with the defenders involved some heavy manual work but the pursuer said his work as a postman was very heavy and involved heavy loads and many stairs.

[5] Mr Smith worked for the defenders for about four years commencing in about 2001/02. He was a yard operator in the premises in Bothwell. He had a similar job to the pursuer. He remembered an occasion when paint cans had been delivered and left in front of the workshop to be moved to the paint store. He and the pursuer were asked to move the paint. There were about 20 to 30 cans of paint. They normally carried two cans in each hand. They had to work their way round to the paint store over the extremely uneven surface which was rutted. He thought the surface was spongy soft. The pursuer was in front of him carrying two cans of paint in each hand. The pursuer was squeezing between a skip and some portacabins. He saw the pursuer "going down". He seemed to go down on both knees. After the pursuer "got up" Mr Smith saw wood or rubble on the ground but he was not sure. He thought that the pursuer cried out. The pursuer said something about his knees or knee but Mr Smith was not sure. In cross-examination Mr Smith accepted that he could not remember the date or the year of this incident. He left the defenders' employment in May 2004/2005. His memory was that the pursuer collapsed down on his knees. He thought that the pursuer fell forward. He did not remember the pursuer falling from left to right but he was not sure. He thought there was a piece of wood or rubble on the ground that the pursuer fell over.

[6] There was also evidence from Mr McGilvery that he heard about the pursuer's accident the day after it occurred when some of the "lads were talking about it". He accepted however that he could not now identify the date of that discussion.

Evidence about the injury to the pursuer

[7] According to the pursuer, he suffered pain and swelling of his knee after the accident and started wearing a support stocking all the time. About one or two weeks after the accident he contacted his general practitioner but he had to wait for an appointment. At the appointment on 23 February 2005, the pursuer said that he had told his general practitioner that he had fallen at work a couple of weeks before. He described a twisting injury. The note recorded by the general practitioner and spoken to by her in evidence is to be found at 7/4 of process, page 5. This note is to the effect that there was a problem with the left knee in the past year "since twisting injury at work - stubbed on uneven ground, often swells". In her referral letter, the general practitioner referred to the current pain in the pursuer's left knee and stated:

"Thank you for seeing this 56 year old gentleman who has been having problems with his left knee since a fall at work several months ago. He stumbled on uneven ground injuring his left knee. Since the fall he has had recurrent pain in the medial aspect of the joint, often associated with swelling. He assumed that it was just a simple injury which would settle with the passage of time. However he continues to have ongoing problems with his knee and I feel he now merits further assessment of this. I have arranged for him to have an x-ray taken at Hairmyres, however I wonder if he may require an arthroscopy and I am grateful for you seeing him regarding this. He had a football injury to his right knee back in 1999. At arthroscopy two loose bodies were removed and overall he had a good result with his procedure. He has a past medical history of psoriasis". (7/4 of process page 82).

[8] The pursuer did not accept that he had told the general practitioner that he had had an accident or twisted his knee in the past year or several months ago. There is a note dated 28 June 2006 (7/4 of process page 12) which records the meeting between the general practitioner and the pursuer in which the pursuer challenged the accuracy of the note made by the general practitioner once her note had been brought to his attention. The general practitioner records that "there seems to have been a misunderstanding between him and me when he presented on 23 February 2005". In evidence, Dr Marshall, the general practitioner, accepted that it was possible she could have made a mistake. She was unable to explain why she had used a different phrase for the length of the period of symptoms. She had recorded "past year" in her notes and made reference to "several months ago" in her referral letter. She had no memory of what was said and was dependant upon her notes.

[9] Dr Marshall, the general practitioner, was not involved in active treatment of the pursuer. Neither party led any of the medical personnel involved in his treatment. In the Joint Minute of Admissions, the parties agreed in paragraphs 3-5 that No. 6/3 of process, the records of Hairmyres Hospital were the hospital records relative to the pursuer and that the documents were written or signed on the dates on which they bear to have been written or signed. They also agreed that the hospital records accurately described the treatment given to the pursuer on the dates noted in said records.

[10] Mr Mukherjee, spoke to his CV, 6/7 of process. He explained that the records which he had considered were 6/2 and 6/3 of process. He spoke to his reports 6/4 and 6/5 of process. He accepted that he had not seen the x-rays, 7/4 of process. In his interpretation of the records, he concluded that the pursuer was suffering from a peripheral tear of the outer border of the meniscus. That was to be differentiated from a degenerative tear. Mr Mukherjee referred to the operation note 6/3/12 of process. His interpretation of the note was that the note indicated a peripheral tear of the outer border of the meniscus and that was the significant finding. He considered that the other matters recorded were incidental. His opinion was that the type of injury recorded was likely to be due to trauma albeit there was pre existing degenerative change. He considered that the injury described by the pursuer which was a forceful twisting injury was consistent with the note. Mr Mukherjee also referred to 7/4/101 of process where it was noted by Mr Eslami, the treating consultant orthopaedic surgeon, that the pursuer "underwent an arthroscopy of his left knee in February 2006 with the diagnosis of grade II patellofemoral joint and also a grade II cartilage defect at the medial femoral condyle and the medial tibial plateau. He also had a periphery degenerative tear of the medial meniscus, which was trimmed. He has had physiotherapy but he is still complaining of pain in the medial compartment". That was recorded on a referral of 27 July 2006 when the pursuer was seen at the Orthopaedic Department of Hairmyres Hospital. On that date the pursuer was recorded as having normal gait but complaining of pain in the medial joint space. The pursuer was reviewed by Mr Eslami at the Orthopaedic Department on 5 October 2006. It was recorded that the pursuer's pain was mainly when he is kneeling and mainly in the medial retinaculum on flexion of the knee to 40 degrees. The medial retinaculum was injected with lignocaine. When the pursuer was asked to bend his knee, it was recorded that his pain was gone. Mr Mukherjee took the view that the note indicated that the cause of the problem was not arthritis but that the pursuer had substantial damage as a result of the injury. The pursuer also received an injection of hydrocortisone into the medial retinaculum. On review on 9 November 2006, the pursuer stated that his knee was not any better. The pursuer was subsequently admitted on 12 January 2007 for arthroscopic examination of the left knee and discharged the next day. It was recorded that the operation revealed grade II changes over the retropatellar area and grade II changes over the trochlea which also revealed synovitis. There was a medial plica in the medial gutter impinging at 30 degrees. The procedure carried out by Mr Eslami was that of resection and shaving of the medial plica with the scar tissue. Mr Mukherjee interpreted this as referring to scar tissue referable to the injury in the knee. On review on 22 February 2007, the pursuer was still complaining of some soreness in his knee after walking for a mile or so. He also complained of a clicking. This was felt by the treating doctor and was considered to be on the outside of the knee at the patellofemeral joint. It was thought that it was due to retropatellar changes. After further review the pursuer was still complaining of pain. The pursuer was last seen at the Orthopaedic Department on 30 August 2007 (7/4/100). A little bit of swelling was noted but no further abnormalities. The pursuer was told that his knee pain was related to his heavy job and that there was nothing further that could be offered medically. Mr Mukherjee noted that throughout the period, various analgesic drugs were prescribed to help the pursuer.

[11] Referring to his medical report dated 11 December 2008 6/5 of process Mr Mukherjee comments on the issue of pre-existing degenerative changes:

"there is no doubt that Mr Campbell's problem is essentially due to aggravation of the pre-existing condition as well as the definite tear of the medial meniscus and medial ligamentous strain. Had he not sustained the injury to the left knee joint at work, he would probably be asymptomatic".

His opinion is that the pursuer would not be able to continue to do his work involving heavy manual duties for more than another year or so.

[12] During evidence, Mr Mukherjee was asked to consider new records which he had not previously considered namely 7/4 of process. He expressed the opinion that the problems with the pursuer's left knee recorded in 1994 were minor in nature and expressed the opinion that any manual worker "gets this". He considered that it was more significant that the pursuer had no problems for about 10 years with his left knee. In the opinion of Mr Mukherjee, even if the pursuer did have degenerative change in 1995, he thought that grade II change is mild. What he considered important was the lack of symptoms. Even a patient with grade IV changes can have little or no symptoms and can manage work. Mr Mukherjee's opinion was that the pursuer had managed well for 10 years since 1995 and that, but for the accident, he would probably have managed to work until retirement at 65. He considered that the pursuer had been very fit for his age and that he had a history of heavy manual work combined with other very physical activities. Mr Mukherjee did not consider that the 16 weeks the pursuer was absent from work after the first operation and the 10 weeks after the second operation was excessive. He explained that some people get reactive synovitis. In such a case, heavy manual work and bending was not possible.

[13] Mr Mukherjee was asked to comment on Mr McKay's reports 7/1 and 7/2 of process. In Mr Mukherjee's opinion, symptoms do not necessarily correspond with the underlying condition of degeneration. In his opinion and experience, people can manage heavy work even with grade IV degeneration. Standing back and looking at the whole scenario recorded by the pursuer's condition, Mr Mukherjee's opinion was that the continuing pain appeared to be from the scar tissue rather than arthritic pain. He considered it significant that the pursuer regained full movement from the local injection. He also considered it significant that with arthritic pain there was also persistent night pain.

[14] In cross-examination Mr Mukherjee accepted that the pursuer had told him that he had had no pre-existing left knee problems. Mr Mukherjee accepted that there was some history of problems with the pursuer's left knee in 1995 but that did not affect his opinion which was based on the absence of any appreciable problems with the left knee for about 10 years. Mr Mukherjee accepted that he had not previously considered 7/4 of process which was the x-ray relating to the left knee. Mr Mukherjee considered that x-ray changes in the majority of cases are not diagnostic of symptoms. He did not consider that the x-ray changes reported were significant to alter his opinion. He was cross-examined about the history of the condition of the pursuer's right knee and he accepted that in his experience, approximately 50% of people have degenerative changes in both knees. Having considered 7/4/5 of process, Mr Mukherjee did not accept that the pursuer had problems with his left knee in the past year. He pointed out that the GP had recorded that the symptoms had started after the pursuer's accident. Mr Mukherjee repeatedly emphasised the importance of the lack of any appreciable symptoms in the left knee for a very long period. He said that there was a significant difference between the categorisation and description of a degenerative tear and a peripheral tear. A degenerative tear is a tear between the upper and lower part of the cartilage. Mr Mukherjee maintained that a peripheral tear had to be caused by a twisting force. In his opinion, a peripheral tear is not caused without that. He accepted that if the tear was caused by trauma, one would expect the trimming to help the symptoms. In the present case he thought the tear is only one factor in the symptoms. The pursuer now has extensive scarring following the first operation which would explain the pain. Mr Mukherjee accepted that the pursuer had degenerative changes in his left knee prior to 1995 and that in general terms that could cause pain. But he explained that 80% of people do not have symptoms in such circumstances. He repeatedly emphasised that the pursuer had no appreciable problems for 10 years prior to February 2005 and that in his opinion, on the balance of probability, the symptomatic problems in the left knee were not caused by degeneration but as a result of the twisting injury and the continuing symptoms are caused by the scar tissue. Mr Mukherjee was asked to explain the absence of reference to scar tissue in his report 6/4 of process. Mr Mukherjee explained that he had always noted that the pursuer had difficulty in bending and that he was merely elaborating his position in evidence. He rejected Mr McKay's opinion that the pursuer's symptoms would have resolved in 6 months to a year. In Mr Mukherjee's opinion, the pursuer would be able to carry on in his employment for about a year and not the 2-3 years estimated by Mr McKay. Mr Mukherjee emphasised that his impression of the type of work carried out by the pursuer is that it is difficult and dangerous for his physical safety and that it would be wise for the pursuer to change his job within one year. He considered that the pursuer had suffered a grade III injury and that after the injury his knee would have been swollen and painful. The pursuer would be hobbling and would probably require painkillers. He accepted that some people would go immediately to Accident and Emergency and that some people would not have been able to get up after this type of injury. People vary in their reaction. He understood that the pursuer had been assisted by other people at his work for a period after the accident and that the pursuer carried on working because he needed the money. In re-examination Mr Mukherjee explained that there was no change of focus in his opinion. He pointed out that scarring is noted in 2007 in the records and that he was particularly influenced by the fact, that after the pursuer had received the injection of lignocaine which blocked the nerve endings, his pain disappeared and he was able to move his leg freely. He considered that was significant. He considered that Mr McKay's opinion and assumption were speculative.

[15] Mr Iain McKay spoke to his CV. He explained that he had general experience including experience of knee joints and of arthroscopy since 1982. He spoke to his report 7/1 of process. He explained that he reviewed the pursuer's x-rays and the x­ray report 7/4/85 of process. In his opinion there was no substantial difference in the x-rays. He accepted that it was possible to have a very arthritic knee and no symptoms and vice versa. X-rays are only a guide. On a balance of probabilities, he would expect symptoms to be suffered by the pursuer but the degree of symptoms can be very varied. He considered that x-ray changes tend to lag well behind symptoms. In the report 7/1 of process dated 3 October 2008, Mr McKay explained that having taken a history, examined the pursuer and reviewed the medical records and x-rays he reached an opinion and prognosis. He explained that he had limited access to GP records at the date of the report. His conclusion was that the incident on 4 February could have resulted in a soft tissue injury. The pursuer described a tearing sensation. He considered that only ligamentous or capsular damage would be liable to occur. He accepted that any diagnosis initially is clinically based and x-rays generally tend not to be very helpful in this situation as far as diagnosis of the acute situation is concerned. Mr McKay reported that the pursuer continued to have pain in the medial and the anterior regions of the left knee. Following further assessment including x-rays and arthroscopy, he concluded that the pursuer had arthritic change both in the medial compartment and also in the patellofemoral department of the left knee. He considered it very unlikely that such arthritic change, which is well described in the arthroscopy notes on both occasions in 2006 and 2007, would be related to the accident. He considered that it was much more likely that the pursuer's symptoms are largely based on arthritic change which flared up after the type of injury he describes. Mr McKay concluded in his report:

"It seems to me that his left knee was in quite a vulnerable situation as far as arthritic changes were concerned prior to this accident bearing in mind the arthroscopy findings which in themselves would not be accounted for one year and two years later by the incident of 04/02/05. Whereas the soft tissue injury would account for the initial symptoms, I think a flare-up of symptoms from the arthritic knee would be responsible for the later symptoms.

He is likely to have intermittent symptoms such as pain, swelling, locking and a feeling of giving way for the foreseeable future, bearing in mind his age group, and this underlying arthritic change which, as in most people, I think does not appear to have been related to trauma. It is a matter of speculation as to why such arthritic change would become symptomatic and, assuming his medical record confirm that he had no preceding symptoms in the left knee, I would have thought it more likely than not that within probably 6 months to a year or so from the time of his accident, his knee would have become symptomatic spontaneously. This is, however, by no means an exact science ...

Note is made of him having a partial tear of the medial meniscus and this being a degenerate tear and indeed such features are commonly seen in the knee in this age group. It is possible that some fraying of meniscus could occur with a twisting injury of this nature but again this would have to be a matter of some speculation. What is clear, however, is that after partial menial meniscectomy his symptoms were not better and, as is usually the case, I think complaints of pain and effusion in this situation are more likely to come from the degenerative arthritic change to the knee than from any torn meniscus. I think it most unlikely that the fraying of the meniscus occurred in this accident ...

He has been off work for longer than I would have expected following each arthroscopy and this is indeed often the case when the underlying diagnosis is osteoarthritis. Usually an absence of perhaps 2 or 3 weeks is near the norm rather than a total absence around 6 months following the two operations. He is going to have intermittent knee complaints for the foreseeable future and bearing in mind that his work is quite physical, I suspect that he will not be able to continue in this very physical work until he is 65, possibly having to take up less physical work within the next 2-3 years. This, however, is an uncertain prediction and largely depends on how well his symptoms are controlled with analgesics and also how there may be varying duties involved ...I note that he takes co-codamol, a moderately strong painkiller, every or some days and that he is not keen on taking such drugs."

[16] In his evidence, Mr McKay emphasised that it would be hoped that the procedure of trimming the meniscus in the first operation would improve the condition of the knee but not if the underlying problem was degeneration. In relation to the second arthroscopy in January 2007, he accepted that scar tissue was possible because of the first operation. In his opinion, looking at the whole picture, he considered that any incident in February 2005 had caused a flare-up in a vulnerable knee. He did not accept that any ongoing symptoms were caused to any extent by scarring because in his opinion, they are caused by the underlying degenerative condition. In relation to the injection of lignocaine, he considered that could relieve pain in an arthritic knee temporarily. Mr McKay was also referred to his supplementary report dated 15 December 2009 (7/2 of process). In this report he explained that his original report was based on the pursuer's version of events that the pursuer had no preceding complaints regarding his left knee. He became aware that was not true as there was a prior history recorded about problems with the left knee. In his updated opinion, Mr McKay confirmed that any injury on 4 February would likely to be a soft tissue injury and he considered it to be significant that arthroscopy in 2006 and 2007 has made no difference to the pursuer's symptoms. He considered that the x-rays taken at the time of the pursuer's accident show degenerative changes and he stated

"I have very considerable doubts as to whether the degenerative changes which are noted throughout the left knee at arthroscopy one year later would develop simply as a result of the accident on 04/02/05. As well as some soft tissue injuries to the capsule and the lining of the joint, a further possibility is that this fall exacerbated the symptoms of what was already a degenerate knee. I therefore find myself in some disagreement with Mr Mukherjee in that I do not agree that he has developed arthritic changes in the left knee 'due to the after effects of the injury'. I also have considerable doubts as to whether he had a torn medial meniscus simply at the time of the accident, such degenerative changes in the medial meniscus being frequently seen in middle years when a person has generalised arthritic change I the knee joint and having no history of trauma .....'I do not think that on the balance of probabilities the accident of 04/02/05 has made any significant difference to the natural history of the underlying arthritic process in the left knee, apart from the flare-up of symptoms between 6 and 12 months following the accident. I consider this flare-up, however to have been relatively modest in the sense that he was able to continue his fairly physical work'".

[17] Mr McKay explained by reference to the records 7/4/8, 7/4/27 and 7/4/29 of process that there was a record of problems with the left knee which had not been revealed by the pursuer. He considered that this indicated a process going on before 1995 leading to a gradual evolution of symptoms in the left knee. He also referred to the symptoms which the pursuer had suffered in the right knee. He concluded that the early records reinforce his opinion. He considered that there would be periods when the pursuer had symptoms and periods when he did not have symptoms but fundamentally he had degeneration in both knees prior to February 2005.

[18] In cross-examination, Mr McKay accepted that he had a general practice and not a specialist practice in knees and arthroscopy. The knee was not his area of specialist interest. His speciality was hand surgery. He stated that he was not aware of Mr Mukherjee being at the forefront of development of arthroscopy in knee cases. On average Mr McKay saw about ten patients a week with knee problems. Under reference to 7/4/29 of process, he accepted that the problems in the pursuer's left knee did not indicate a serious arthritic condition and that there was no note of symptoms in the left knee thereafter. In relation to the x-ray in 2005 (7/4/85 of process) there were early degenerative changes but he stated that the x-ray was not really very useful at that stage of the condition. He agreed that the operation note (06/03/12) may refer to a peripheral tear of a degenerative meniscus. Such a tear could be different from a degenerative tear. He accepted a peripheral tear is to the outer rim and that a degenerative tear tends to be a horizontal tear which may reach the periphery. He accepted that a peripheral tear is generally caused by a twisting injury. He did not accept that after the first arthroscopy, that scar tissue appeared to be causing a problem, because there appeared to be no improvement after the trimming of the scar. He thought that the effects observed after the injection of lignocaine were not indicative of scarring. He explained that fraying means that the edges are ragged and that a tear is more substantial. He accepted that the records mention a tear but he explained that the note and observation was made a year after the accident in 2006. He accepted also that fraying can lead to a tear and that the result of a tear is not a good result if there is degeneration in the knee. He explained that in his view, any injury in February 2005 had caused a flare-up of symptoms and he concluded that the first 6-12 months at most of the pursuer's symptoms may be related to the accident. He thought that the symptoms which had flared up were the symptoms which had occurred prior to 1995, that is the pain and stiffness. He accepted that the symptoms post 2005 are different but he thought that was to be expected. In relation to scar tissue, he said that scarring in the medial side of the knee was only identified at the time of the second arthroscopy, not the first.

Submissions by counsel
[19] I am grateful to counsel for the parties for their written submissions. The written submissions on behalf of the pursuer and defenders are contained in 24 and 25 of process. Counsel elaborated on these submissions during oral submissions but did not depart in material respect from the written submissions. Counsel for the defenders made the concession that if there was a finding to the effect that the accident occurred as averred on record, the defenders accept that they would be liable to pay damages for any loss, injury and damage caused to the pursuer by the accident.

[20] Counsel for the pursuer set out in his written submissions (24 of process) his summary and approach to the evidence. He invited me to accept all the witnesses as credible and reliable. He made no serious criticism of Dr Marshall. She was dependent upon her notes and candidly accepted that she might have made a mistake or that there might have been some misunderstanding in her note about the accident in relation to the timing of it. He submitted that the pursuer's evidence should not be subject to criticism because of failure to disclose to the expert witnesses, his left knee problems, which dated back some ten to fourteen years before the accident. The pursuer had been reassured after investigation in 1995. Counsel submitted that I should accept that the pursuer had simply forgotten about this as his knee had been asymptomatic. He submitted that no inference should be drawn from the delay by the pursuer in reporting the accident. The pursuer had given a clear and adequate explanation. There was no contrary evidence led by the defenders. I was invited to accept that the pursuer had an accident at work as described by the pursuer on 4 February 2005 and that it was a twisting injury to his left knee which for many years had been asymptomatic.

[21] Counsel for the pursuer submitted that the pursuer had no option but to walk across the yard, despite the condition of the yard. He required to carry paint cans and avoid obstacles. He submitted that it would be unreasonable in the circumstances to find a high degree of contributory negligence under reference to McLaughlin v East and Midlothian NHS Trust 2001 S.L.T. 387 and Cooper v Carillion plc (203) E.W.C.A. 1811 paragraphs 12 and 13. He submitted that any award of contributory negligence should not be higher than 15%.

[22] In relation to causation and the conflict in the medical evidence, I was asked to prefer the evidence of Mr Mukherjee who had more expertise and experience. Counsel submitted that even Mr McKay accepted that his estimate of a six to twelve month period was speculative. He submitted that it was not in dispute that the pursuer did suffer a peripheral tear of the medial meniscus, that he suffered scarring which was seen at the second arthroscopy and that he had a partial tear of a ligament. The most likely cause of that damage was the accident in February 2005 and the subsequent medical procedures. The pre existing degenerative condition had no reason to suddenly "flare up" and it was much more likely that the symptoms, including the continuing symptoms, were the result of the accident.

[23] In relation to solatium, counsel for the pursuer prayed in aid McShannon v Ailsa Perth Shipbuilder 1994 S.L.T. 500; Young v Scottish Coal (Deep Mining) Company Limited 2002 S.L.T. 1215 and Syme v Sutcliffe 1990 S.L.T. 687. He submitted that these cases indicated a span of damages for a moderate injury such as that suffered by the pursuer in the region of £9,000 to £17,000. He submitted that £12,000 was reasonable with two thirds of the sum allocated to the past. Paragraphs 10 and 12 of the joint minute deal with past wage loss. In relation to the future, he submitted that according to the evidence of Mr Mukherjee, the pursuer is unlikely to continue work with the present defenders for more than a year. Counsel proposed a multiplier of two as appropriate for future wage loss which results in a loss of £40,000. As an alternative, counsel submitted under reference to King v Carron Phoenix 1999 Reports L.R. 51, as an example, that a loss of employability of £25,000 would be appropriate. Services are agreed in the joint minute of admissions.

[24] Counsel for the defenders also set out the evidence on which he wished to rely in his written submissions 25 of process. In his approach he deals firstly with liability and contributory negligence and thereafter causation and quantum.

[25] In relation to the evidence about the accident, counsel for the defenders submitted that the pursuer had not proved that the accident occurred as averred on record. He submitted that the pursuer's version of events was vague, imprecise and contradictory. He submitted that Mr Smith gave a different version of events in which the pursuer did not fall because of a rut or a problem with the surface but because he had tripped over some obstacle. It was submitted that the evidence given by Mr Smith differed in a material respect from that given by the pursuer and that averred on record.

[26] It was further submitted that the evidence established that the pursuer's left knee problems which prompted him to attend his general practitioner on 23 February 2005 pre-dated 4 February 2005. This submission was made as part of the defender's submission in relation to causation but in my opinion also bears upon the issue about what had happened on 4 February 2005. As I understood the submission by the defenders, it was contended that there had been some accident or incident which had given rise to the left knee problems prior to 4 February 2005. This submission was based mainly on the notes from the general practitioner records which I was invited to accept as accurate. The submission made much of the particular words such as "often swells" and "recurrent" in addition to referring to the time period noted by the general practitioner. Counsel also prayed in aid the pursuer's own evidence in which the pursuer accepted that he had previously fallen into a hole at work.

[27] Counsel for the defenders submitted that there was a substantial element of contributory negligence. It was submitted that the pursuer knew that the yard conditions were bad, he should have had a clear view ahead of him and he could have taken a different route.

[28] In relation to causation the defender submitted that the pursuer's knee problems which prompted him to attend his general practitioner on 23 February 2005 pre-dated the accident on 4 February 2005 and that accordingly his knee problems were not caused by any accident on 4 February. It was further submitted that even if the pursuer's symptoms commenced on 4 February 2005 following an accident, the accident did no more than cause a soft tissue injury and a flare up of symptoms from an arthritic knee. Counsel submitted that the pursuer repeatedly claimed that he had no knee problems whatever in the period leading up to 4 February 2005. That is not borne out by the GP records of Dr Marshall and her referral letter (7/4 of process, page 82). It was submitted that it is plain from the evidence of pre-existing knee problems recorded in the medical notes that the pursuer is an unreliable witness regarding the condition of his left knee. It was submitted that his evidence that he had no problems with his left knee prior to 4 February 2005 should be rejected. His evidence in relation to this is confused, contradictory and evasive.

[29] Counsel for the defenders dealt in some detail with medical causation and submitted that I should prefer the evidence of Mr McKay to the effect that the accident did no more than cause a soft tissue injury and a flare up of symptoms from an arthritic knee. Had the accident not occurred, the pursuer's arthritic knee would have become symptomatic in any event within six months to a year from 4 February 2005. The accident, even if it occurred as averred by the pursuer, had no effect on the pursuer's long term condition. Detailed submissions were made about the reasons I should prefer the evidence of Mr McKay to that of Mr Mukherjee. These reasons included the manner in which the evidence was given, the thoroughness of the investigations conducted, the consistency of the opinion expressed and the substance of the evidence given.

[30] On the logic of the defenders' approach to the case, it was submitted that solatium should be limited to compensation, if due, for a soft tissue injury and flare up of symptoms as spoken to by Mr McKay. That approach would involve a finding that the accident did no more than cause symptoms for a period of six to twelve months and had no effect on the natural history of the condition. Accordingly the absences of the pursuer from work following the arthroscopies would have occurred in any event. Similarly the services rendered to him following the arthroscopies would also have occurred in any event. It was submitted that the maximum award would be unlikely to exceed £3,750. The following cases were prayed in aid namely Syme v Sutcliffe 1990 S.L.T. 687; Matthews v Lothian and Borders Fire Board 1992 S.L.T. 970; Davies v Muldoon Kemp & Kemp 16-057; Paterson v Midland Bank Kemp & Kemp 16-052.

[31] Commenting on the approach by the pursuer's counsel, counsel for the defenders accepted that if Mr Mukherjee's evidence was accepted that a sum for solatium in the region of £10,000 to £12,000 would be appropriate. He accepted that past wage loss would be awarded for the two absences following the arthroscopies. Counsel also submitted that in principle an award for future wage loss and loss of employability would be appropriate. I was invited however to consider in more detail what would have happened, but for the accident, bearing in mind that given the nature of the pursuer's employment he might not in any event have been able to continue to 65 years in his present employment. It was submitted that the evidence is to the effect that the pursuer is likely to remain in his current employment for at least a period of a year on his own evidence and that it is likely he might continue until the age of 63 years. Counsel submitted that there was no expert evidence led about the pursuer's likely position in the employment market should he lose or leave his present job. That was a matter for the pursuer to establish. There was evidence that the pursuer would take any job and that he had a varied history of employment. It was submitted that if loss of employability was established, that should be a modest sum reflecting the pursuer's age, the possibility that he might have had to retire early from his present employment in any event, the fact that the pursuer is still able to work a considerable amount of overtime, the pursuer's expressed intention to keep working as long as possible, and the pursuer's varied career which does not limit him to manual employment. An award of £10,000 was proposed as appropriate. In relation to past services, the figures are agreed in the joint minute between the parties.

Discussion
[32] My assessment of the pursuer is that he was trying to tell the truth about events including the accident on 4 February 2005 albeit he was not in my opinion a very clear historian. He impressed me as a hard working man with an exceptionally stoical approach to life and pain. I accept that he had been very fit and active throughout his life and that for many years prior to the accident he participated in a very active fitness programme. I concluded from his evidence, the date of the written accident report, the date of the visit by the pursuer to his general practitioner and the evidence of Mr Smith that it is likely that an accident, as described by the pursuer, occurred on 4 February 2005. The general practitioner, Dr Marshall, accepted in evidence that she might have made a mistake in her note in relation to the timing of the accident. The pursuer challenged her record of the timing when he was told what she had noted. The note of the general practitioner is inconsistent, in my opinion, with the period which she records in her letter of referral. I consider that there is no satisfactory explanation for the difference in the dates recorded by the general practitioner. I consider that the pursuer is more likely to be accurate in relation to the date then the general practitioner because of his personal involvement in the accident. Mr Smith gives support to the pursuer to the extent that he confirms that the pursuer suffered an accident whilst he was carrying tins of paint to the paint store across the unconcreted yard where the surface was in very bad condition. He was not able to confirm the date. Mr Smith was behind the pursuer and had a memory of rubble or wood lying at the site of the accident. He accepted that he was not clear about the cause of the accident. There was no discussion between Mr Smith and the pursuer at the time about the cause of the accident. The pursuer gave clear evidence about his recollection of his foot going down into the ground. He described a twisting injury in parts of his evidence and that is how he is noted as describing the injury in some of the medical notes. The pursuer did not accept that this was a tripping incident over an obstacle. I do not consider that the pursuer was deliberately lying about the mechanism of the accident. In my opinion the pursuer is more likely to have a reliable memory and understanding of the mechanism of the accident than Mr Smith.

[33] I had no difficulty in accepting the evidence of the pursuer, Mr Deas, Mr McGilvery and Mr Smith as credible and reliable in relation to the conditions of the yard which they describe and the reasons therefore. There was no contrary evidence led by the defenders and this evidence was essentially unchallenged in cross examination. I accept that the conditions of the yard, as described, caused long standing problems which pre dated 4 February 2005. The conditions were well known to the defenders and in any event were obvious. The conditions of the yard caused difficulties for employees such as the pursuer who required to walk over the yard in the course of his employment. The only way to avoid these difficulties was not to walk over that part of the yard which was not concreted. That was not an option for employees, such as the pursuer, if they were to carry out their duties.

[34] I conclude that the pursuer has established on the balance of probability that as a result of his foot going into a pot hole or rutted area, as he avers in the pleadings, he fell with a twisting movement and his left knee was injured. I am satisfied that these events occurred on or about 4 February 2005.

[35] It follows as a result of the concession by counsel for the defenders at the end of the proof that, subject to the issue of contributory negligence, the defenders are liable to pay damages for any loss, injury and damage caused to the pursuer by the accident.

[36] The submissions and evidence about contributory negligence were brief. I accept that the pursuer was aware of the conditions of the yard. I accept that he ought reasonably to have foreseen that he might hurt himself if he was not taking reasonable care when walking across the yard, which he described as "like the Somme". I accept that the pursuer had suffered a previous accident because of the conditions of the yard, albeit he was not injured on the previous occasion. I also accept that Mr Smith managed to negotiate the yard conditions without injury. Nevertheless I take into account that the pursuer's problems in relation to the yard were solely the responsibility of the defenders. I do not accept the defenders' submission to the effect that "the simple fact that the pursuer fell, supports the inference that he was not paying proper attention to where he was walking" and that "he was unable to give a clear account of the precise nature of the ground ... because he was not paying attention to where he was putting his feet. I am satisfied on the evidence that the pursuer was paying attention to where he was walking albeit not all the time. Counsel for the defenders prayed in aid the pursuer's concession in cross examination that he was not looking 100% where he was going. That concession however must be viewed in the light of the other evidence of the pursuer and the conditions of the yard for which the defenders were solely responsible. The pursuer is a manual worker and was carrying out the tasks of his employment over ground conditions in respect of which the defenders failed to take reasonable care to provide a safe access. I consider that the pursuer was doing his best to do his duties in conditions which the defenders had left the pursuer to deal with as best he could. I regard the pursuer's failure to have regard to the ground conditions all the time as being minor in all the circumstances. I assess contributory negligence at 20%.

[37] The main issue in contention in the case was the expert evidence. Despite the length of this evidence, the issues involved are relatively narrow. The parties are not in dispute about the treatment given to the pursuer in Hairmyres Hospital. These matters are agreed in paragraphs 3 to 5 of the joint minute of admissions. The post February 2005 condition and present complaints of the pursuer are not in particular dispute. These may be summarised on the basis of the medical report of Mr Mukherjee (6/4 of process, page 13) and Mr McKay (7/1 of process, page 9). These include pain and swelling of the left knee. The pursuer needs to use a knee support and take medication in the short term with the possibility of a knee replacement in the future. The pursuer has some difficulty in doing heavy manual duties which may require him to give up his present employment. There was some dispute between the experts about whether this would be required in a year or so, as estimated by Mr Mukherjee or within the next two to three years, as estimated by Mr McKay. Both experts agreed that there is some uncertainty in these predictions. I did not understand there to be any dispute that the pursuer since February 2005 has not been able to continue with his frequent and intensive fitness programme which was his main social and hobby activity.

[38] The main dispute between the expert witnesses may be summarised firstly as a dispute about the nature and effect of the pre-existing condition of the left knee, and secondly the nature and effect of the injury and the consequences thereof. The nature of that dispute is plain from the evidence which I have summarised and the submissions to which I have referred.

[39] Let me deal with the first issue. I do not accept the submission on behalf of the defenders that the pursuer suffered symptoms for up to a year before 4 February 2005. I do accept the submission by the defenders that the pursuer had some pre-existing degeneration to his left knee. It is plain from the general practitioner's records (7/4 of process, page 8) that on 14 January 1991, the pursuer attended his general practitioner complaining that both knees were painful. The knees became sore and stiff after any exercise and were stiff in the morning. A further note of stiffness in the pursuer's knees was made on 25 November 1991. On 23 December 1994 the pursuer complained of pain specifically in his left knee. This resulted in a hospital referral where x-rays were taken. At that stage, the pursuer was noted as stating that he had pain in his left knee for the previous one and a half years. In evidence the pursuer accepted in general terms that the complaints recorded related to him. I consider that counsel for the defenders was well entitled to criticise the pursuer for his assertion to Mr McKay that he had no left knee complaints prior to 4 February 2005. This must, in my opinion however, be seen in context. I accept that as a result of examination and x-ray in March 2005, the pursuer was reassured. He did not attend his general practitioner with any complaints about his left knee for some ten years thereafter. Following these problems he had given up contact sport including football from which he had suffered a number of problems and injuries. But for many years thereafter he had trained in the gym and ran regularly with no knee problems which caused him any concern at the time. I also accept that this does not mean that he may not have had the occasional stiffness or slight pain in his left knee. Nevertheless his ability to carry out manual work, his level of fitness, regular training and running satisfied me that the pursuer did not regard himself as having left knee problems and symptoms. I accept that for about ten years prior to 4 February 2005, his left knee was for practical purposes asymptomatic. In finding that the pursuer's left knee was asymptomatic that does not mean I accept that there was nothing wrong with his left knee. Both medical experts accepted in evidence that there was some pre-existing degeneration. That is not surprising in a man of the pursuer's age, bearing in mind his work history, previous involvement in contact sports and training regime.

[40] I turn now to deal with the dispute about the nature and effect of the injury and the consequences thereof. In resolving that dispute, I have no difficulty in concluding that Mr Mukherjee has considerable more expertise and experience than Mr McKay in relation to knee injury, arthroscopy and in particular the effects of twisting knee injury resulting in peripheral meniscus tear. Mr McKay had no hesitation in accepting that his specialism was not in this area. Mr McKay has carried out far fewer operative procedures of this nature than Mr Mukherjee and he referred certain cases to surgeons with greater expertise. I accept that Mr McKay is a well qualified surgeon with some expertise in relation to knees. Both experts were impressive witnesses in different ways. I accept the submission by counsel for the defenders that Mr Mukherjee appeared rather dogmatic in his approach and that on occasion he would not address himself directly to questions asked of him in cross examination. My impression was that Mr Mukherjee had some difficulty in being asked questions repeatedly about matters which he thought that he had already made plain. I interpreted his "dogmatic" approach as an expert speaking about matters with which he was fully familiar and not in any doubt. On the central issue of his interpretation of the hospital notes and history given by the pursuer, Mr Mukherjee was plainly persuaded that the pursuer had suffered a peripheral tear caused by a twisting injury. Mr Mukherjee gave no concession. I interpreted his evidence as that he gave no concession because he was persuaded that looked at overall, taking all the matters into consideration, he was satisfied about the explanation for the pursuer's problem which resulted in arthroscopy and other, medical interventions. He was forcefully cross examined in relation to Mr McKay's alternative opinion and refused to concede. Counsel for the defenders made some criticisms of Mr Mukherjee because he declined to speculate about some of the notations and abbreviations in the medical notes which the parties had agreed. These notes were not Mr Mukherjee's notes. I do not consider that this was fair criticism of Mr Mukherjee. Mr Mukherjee accepted that he had not reviewed the x-rays of the pursuer's left knee and he made no apology for that. Mr McKay had taken the trouble of reviewing the x-rays. I am satisfied however that in the context of this case the x-rays cannot assist with the issue of whether any pre-existing degenerative change was symptomatic. My understanding of Mr McKay's evidence was that he accepted that x-rays are of limited assistance in relation to this issue. Counsel for the defenders also criticised Mr Mukherjee in relation to his failure to give significance to the lignocaine injection in his first report (6/4 of process). The note of this treatment is of course quoted in his report. Mr Mukherjee in response to questioning was pleased to expand on the significance which he attached to it. This is perhaps an example of Mr Mukherjee not being "dogmatic" but expansive. His expansiveness, however, did not assist the defenders. I also reject the criticism of Mr Mukherjee in relation to his assessment of the records in relation to the date of the accident. Mr Mukherjee's task is not to assess the facts of the case in relation to the date of the accident. That is the task of the Court. It is plain from Mr Mukherjee's report that he had an account from the pursuer about the accident. He is entitled to proceed to consider his opinion on the basis of that account. Obviously if the factual basis is not accepted that there was twisting injury to the left knee of the pursuer in about February 2005, the opinion would not be well founded. The defenders' counsel also submitted that there has been some fundamental shift in Mr Mukherjee's approach, without an explanation. Mr Mukherjee adhered to his opinion and conclusions despite a detailed and lengthy cross examination. Obviously in the course of the detailed cross examination, Mr Mukherjee expanded his views and brought into focus matters which he considered supported that opinion. What Mr Mukherjee did not do was to make any concessions which led him to depart from his overall opinion in the case.

[41] Mr McKay's opinion as I understand it is based on certain pillars. The first pillar is that the pre-existing degeneration in the pursuer's left knee was actually symptomatic and about to "flare up" within about a year of the accident. This opinion is based on his interpretation of the underlying condition and the pre-existing problems suffered by the pursuer in 1995. Mr McKay agreed that there is a large element of "speculation" in relation to this. With respect, I consider that it appears to be entirely speculative. Mr McKay appears to accept that if the pursuer suffered the type of peripheral tear discussed by Mr Mukherjee, that it is likely that it would be caused by twisting injury. Mr McKay however does not accept that the pursuer suffered such a tear. He offers the opinion that there was no tear caused by the accident and that any tear identified at arthroscopy in 2006 was as a result of a "fraying" as a result of degeneration "possibly" exacerbated by the accident extending the "fraying" to the periphery and eventually causing a tear at the periphery. There is no record of "fraying" being recorded anywhere in the records. His opinion was that any symptoms were relatively short lived and the continuing symptoms of the pursuer are a "flare up" as a result of pre-existing degeneration.

[42] Bearing in mind my findings that the pursuer suffered a twisting injury to his left knee and my findings in relation to his pre-existing symptoms, I find it very difficult to accept the speculative views of Mr McKay that coincidentally the pursuer would have suffered a flare up of symptoms which would be likely to disable him in any event regardless of the accident. In my opinion, it was because of the symptoms suffered as a result of the accident, that the pursuer underwent the first arthroscopy. He was suffering acute symptoms as a result of the accident and in my opinion that is the reason he had the first arthroscopy. I do not understand it to be seriously disputed that he is likely to have suffered some scarring which would cause some difficulties as a result of that first arthroscopy. I am not persuaded by Mr McKay's rather speculative approach to "flaring up" of the symptoms and "fraying" which is not recorded in the notes. This is a pursuer who suffered a twisting injury after many years when he was asymptomatic, despite existing degenerative change in his left knee. I accept the evidence of Mr Mukherjee in relation to causation and prognosis. I approach damages on that basis.

[43] In relation to solatium, I consider that the submissions on behalf of the pursuer are well founded. I award damages for solatium at £12,000 taking into account the pursuer has also suffered the loss of his main hobby and social activity, fitness training. I allocate 60% of the sum awarded to the past. Based on the Joint Minute, I conclude that his total past wage loss to date is £5,451 and the value of past services excluding interest is £400.

[44] In relation to future wage loss, I am of the opinion that the pursuer is likely to struggle on in his present employment as long as possible. That may be for a period in excess of the year advised by Mr Mukherjee. I think it is likely that if the pursuer finds his present employment too difficult and too painful, he will seek alternative employment before giving up his present employment. I also accept however that the pursuer may not be able to do what he wishes to do in relation to his employment if the pain and disability overtake him. Bearing in mind the pursuer's own evidence about his knee and his determination to carry on working until 67, I think it is unlikely that the pursuer will cease paid employment permanently before age 65. I consider that the pursuer, based on Mr Mukherjee's opinion, is unrealistic in his wish to carry on working until age 67 bearing in mind that he does have a pre-existing degenerative condition unrelated to the accident. I accept however but for the accident, it is likely that he would have continued in his present employment until a retirement age of 65 years. Considering the matter very broadly, I am of the opinion that future loss should be dealt with by way of an award for loss of employability. If the pursuer does require to give up his employment, he will be disadvantaged on the labour market and I consider that it is likely that he will be unable to continue in his present employment until aged 65. I take into account however that the pursuer is both determined and stoical and I consider that he will not willingly leave his present employment without finding alternative employment. In the future, I consider that the pursuer may find it difficult to obtain alternative employment and he is unlikely to obtain secure well paid employment. I consider that he may have periods of unemployment and a reduced income despite his efforts to obtain alternative employment. The pursuer has a net annual wage of £20,407. In my opinion, a loss of employability of £20,000 is reasonable.

[45] I appoint the case to the By Order roll to deal with outstanding matters in relation to interest on sums due and to deal with expenses.