Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 88
PD1360/09	OPINION OF LORD TYRE in the cause MARIE ANN WALLACE Pursuer; against GLASGOW CITY COUNCIL Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Tait; Russell, Jones & Walker

Defender: P Stuart; Edinburgh City Council

8 July 2010

Introduction
[1] On 13 June 2007 the pursuer was employed by the defenders as a clerical assistant at Kirkriggs School, 500 Croftfoot Road, Glasgow. She was then aged 60 and was due to retire in two months' time. On that morning the pursuer was assisting with preparations for a visit by staff and pupils to Strathclyde Country Park. In her evidence to the court, she described the circumstances in which she came to sustain injury as follows. At around 10am she required to use one of the ladies' staff toilets in the school. Having done so, she wished to open the window in the toilet cubicle in order to air it as a courtesy to the next user. The pursuer is approximately 5ft 1ins in height. In order to reach the window to open it, the pursuer stood on the ceramic bowl of the toilet. As she opened the window, the toilet bowl capsized to the left and became detached from the floor. The pursuer fell to the left and landed heavily on her left heel. The toilet bowl then fell on top of her left foot. She sustained injuries to her foot including a displaced fracture of the posterior tuberosity of the calcaneum from which she has not made a full recovery.

[2] The pursuer sought reparation from the defenders for breach of the statutory duties incumbent upon them under Regulations 5, 15 and 20 of the Workplace (Health, Safety and Welfare) Regulations 1992 ("the Workplace Regulations"). These regulations relate respectively to (i) maintenance of the workplace and equipment in efficient working condition and good repair; (ii) opening of windows, skylights and ventilators; and (iii) provision of adequate ventilation for rooms containing sanitary conveniences. The pursuer also argued that the defenders were in breach of their duty under Regulation 3 of the Management of Health and Safety at Work Regulations 1999 to make a suitable and sufficient risk assessment in relation to the opening of the window. A case of fault at common law and a statutory case under Regulation 6 of the Work at Height Regulations 2005 which had been pled on the pursuer's behalf were not insisted upon after proof. The defenders contended that the accident was not caused by any breach of statutory duty but rather by the fault of the pursuer or, in any event, that it was materially contributed to by her own negligence.

The locus of the accident
[3] The toilet cubicle in which the pursuer had her accident was one of two similar cubicles situated beside the staff room. A doorway leading to the staff room and to the two cubicles opened off a corridor near to the main entrance to the school. On the same side of the corridor was the head teacher's office, which also had a toilet cubicle adjacent to it. On the opposite side of the corridor, midway between the doorways leading to the staff room and the head teacher's office respectively, was the school janitor's office. The office where the pursuer worked was several metres away round a corner in the corridor and nearer to the main entrance. There were no classrooms in the immediate vicinity.

[4] The school had approximately 20 members of staff, almost all of whom were female. At the proof there was an issue as to whether the pursuer could have used a toilet other than one of the two cubicles beside the staff room. The school had two other toilets: one (as I have mentioned) was adjacent to the head teacher's office, and the other opened off the deputy head teacher's office. I am satisfied on the evidence that with the exception of the head teacher and deputy head teacher, it was normal practice for female staff members, including the pursuer, to use the cubicles beside the staff room, that it was unusual for any of them to use either of the other two toilets which were nominally available, and that they were given no encouragement to do so.

[5] The cubicle itself was fairly narrow, being wide enough only to accommodate a toilet and low-level cistern. Above the cistern, in the wall facing the door, there was a window, the top part of which was hinged to open inwards and downwards. It was opened by pulling a metal ring on the top rail of the window frame. The ring could be pulled by using either a window pole or one's finger. The window was recessed with a sill that was sufficiently deep to allow storage of spare toilet rolls and a bowl of pot pourri. The distance from the cubicle floor to the metal ring (with due regard paid to the fact that the window was recessed) was measured by one of the witnesses, Mrs Sally Russell, as being about seven feet.

[6] At the time of the accident no window pole was kept in or immediately outside the cubicle. Within the school there were two long poles used for opening windows at a high level in the classrooms. However, counsel for the defenders ultimately conceded that it would not have been practicable to use either of these poles within the confines of the toilet cubicle. More controversial was the question whether there was available at that time a short window pole which would have been suitable for opening and closing the cubicle window. The head teacher, Mrs Elena Convery, and the school janitor, Mr William McDermott, stated that a short pole was kept in the janitor's office and available for use on request. The pursuer and four of her colleagues, all of whom had worked in the school for many years, stated that they had no knowledge of the existence of such a pole and believed that none had been available until one of the witnesses, Mrs Gillian Dempsey, had brought a short pole of her own to the school on the day after the pursuer's accident. I discuss Mr McDermott's evidence below; at this stage it is sufficient to say that I would not have accepted on his testimony alone that there was a short pole in his room at the time of the pursuer's accident. However, I have no reason to reject Mrs Convery's evidence to the same effect and I therefore find that at the time of the accident there was a pole in the janitor's office, even if many of the staff were unaware of its existence. I accept that no steps were taken to advise or remind staff using the ladies' toilet of the availability of the pole to open the toilet window. Within the past few months a short pole has been provided which hangs from a hook on a wall outside the two cubicles.

[7] The pursuer stated in her evidence that prior to the accident she had "often" stood on the toilet bowl to open the window. Four of her colleagues gave evidence that they, too, had stood on the toilet to open the window. All of these ladies were around 5ft 1ins-5ft 3ins in height and were unable to reach the metal ring while standing on the floor. How frequently they had stood on the toilet was not fully explored, but what does seem clear is that it was only after the pursuer's accident that each discovered that others had been doing so too. Mrs Convery gave evidence that she was unaware that anyone was standing on the toilet to open the window. She had been a teacher in the school prior to being appointed as its deputy head, and subsequently its head, and was familiar with the cubicle where the accident occurred. She was 5ft 41/2ins tall and could open the window by stretching up and pulling the metal ring, even when not wearing heeled shoes. Prior to the accident she had never received any complaints or reports of difficulty in opening the window.

The circumstances in which the accident occurred
[8] The account given by the pursuer of her accident was not entirely satisfactory. It differed in certain respects from the averments on record, most notably in respect that on record it was averred that the pursuer stood on the toilet bowl with her left foot whereas in evidence she was reasonably sure she used her right foot. It also differed in various ways from the history recorded when the pursuer was admitted to the Accident and Emergency Unit at Hairmyres Hospital. I am willing to accept that these discrepancies can be explained as the sort of inaccuracies which occur when a description passes among various persons before being written down. There is sufficient evidence to satisfy me that the pursuer fell when the toilet bowl capsized sideways. Her account is supported by the evidence of witnesses who arrived on the scene immediately afterwards and spoke of seeing the toilet bowl lying on its side with water spilled on the floor of the cubicle. I have more difficulty with the pursuer's evidence, in court, that she placed her foot on the front right hand segment of the toilet bowl. As I understood it, the basis for this statement was that she would normally have put her foot there and so assumed that she had done so on the day of the accident. It does not appear to me that this can be correct. If the pursuer had indeed placed her weight on the right side of the bowl, I can see no mechanism by which it would fall over sideways to the left. Having regard to all of the evidence, I find that the accident occurred in the manner described by the pursuer in her evidence to the court, except that I consider that she must have placed her right foot on the left side of the toilet bowl when she leaned forward to pull the metal ring with her finger.

[9] There are also conflicts between the evidence of the pursuer and that of others concerning the immediate aftermath of the accident. The first to respond to the pursuer's shouts for help were Paula Houston (who did not give evidence) and Isabel Beckett, a clerical assistant who was job-sharing with the pursuer and who worked in the same office. They sought assistance from Mrs Russell, who was trained in the provision of first-aid. Mrs Convery, who had been escorting children to a bus for their school trip, was informed of the pursuer's accident and attended at the scene. Mr McDermott stated that he was advised of the accident by someone passing his office and came along to investigate, but the other witnesses had no recollection of seeing him there. Mrs Convery and Mr McDermott both recalled the pursuer stating that the accident had been her own fault because she had stood on the toilet to open the window. Neither Miss Beckett nor Mrs Russell remembered this and the pursuer denied it. I do not attach weight to any assessment by the pursuer, immediately after the accident occurred and while she was in considerable pain, of her own culpability. The conflict of evidence does, however, raise issues of reliability. Again I accept the account of Mrs Convery who, in my judgment, gave her evidence fairly and moderately. Mrs Russell was, as she herself put it, busy attending to the pursuer, and Miss Beckett accepted that she may not have been present at all times. It is entirely understandable, given her pain and distress, that the pursuer's recollection of events is less than perfect. These discrepancies, however, reinforce my view that I should draw my own inference (in the last paragraph) as to how the pursuer caused the toilet bowl to capsize, rather than simply accepting the pursuer's account without question.

Alternative courses of action available to the pursuer
[10] Much time was taken during the proof investigating alternative courses of action which might have been available to the pursuer. My views on these are as follows:

(i) I have already noted that the suggestion that the pursuer could have used one of the two long window poles situated elsewhere in the school was abandoned by counsel for the defenders in his submissions.

(ii) It was suggested that the pursuer, having used the toilet, could have asked someone taller nearby to open the window for her. Given the location of the toilet within the school building, there were very few people working nearby. Miss Beckett job-shared with the pursuer and would not normally be present in school at the same time, although as it happens she was there on the morning of the accident because of the school trip. I regard it as wholly unrealistic to suggest that the pursuer, or any other staff member who had used the toilet, should go to the head teacher to ask her to open the window. There remains the janitor, Mr McDermott, whose office was nearby. Although he too was 5ft 3ins in height, he stated that he could reach the metal ring while standing on the ground. I was not impressed by Mr McDermott as a witness. His reaction under cross-examination to inconsistencies between his evidence and that of other witnesses was to insist that the others (in some cases all of the other members of staff) must be lying. His assertion that the door of his room was never locked except when either (a) he was working in the corridor outside his office using tools which were inside or (b) an abnormal incident had occurred within the school was not credible. Nor was his statement that everyone knew there was a window pole in his office. I have found it necessary to treat with great caution any statement by Mr McDermott which was not supported by evidence from another source. I accept the evidence of other witnesses that Mr McDermott spent much of his time away from his room carrying out duties around the school and its grounds and that his door was locked while he was away. In all of these circumstances I do not consider that it would have been reasonable to expect the pursuer, having used the toilet, then to seek out another, taller, member of staff to open the window for her. She might have had a long and fruitless search, by which time the purpose of opening the window, i.e. to ventilate it prior to use by the next person, might well have been defeated.

(iii) It was suggested that the pursuer could have used another toilet. As I have noted, the cubicle next door was not materially different. There was no evidence that the toilets located beside the head teacher's and deputy head teacher's rooms had more accessible windows than the cubicle which the pursuer used. I accept moreover that it was not expected that staff would use these toilets. I therefore reject this suggestion.

(iv) Another suggestion was that the pursuer could have asked the janitor for help prior to using the toilet. Mr McDermott's evidence was that members of staff did ask him to open windows and that over the years a number, including the pursuer, had asked him to open the toilet window. This was denied by the pursuer. Mrs Convery stated that she had seen the pursuer asking for assistance to open the window in the pursuer's office, and that she usually asked the janitor. I am not satisfied that there was ever an occasion when the pursuer asked Mr McDermott to open the toilet window for her. I have, however, found as a fact that a window pole was available in the janitor's office, albeit that its presence was not widely advertised. I accept that it would have been practicable for the pursuer to seek assistance from Mr McDermott, although it is probable that on some occasions she would have found that he was absent from his room and that the door was locked. My impression is that the relationship between the janitor and certain other members of staff in the school was professional rather than friendly, but I do not consider that this ought to have prevented the pursuer from seeking his assistance rather than putting herself at risk by climbing on to the toilet bowl to open the window.

(v) Finally, it was suggested that the pursuer could simply have left the window shut. The pursuer agreed when this was put to her but pointed out that this might have left the toilet in a disagreeable condition for the next user. That may be so but it does seem to me that if the pursuer found herself in a situation where there was no suitable pole readily available, and attempts to locate the janitor prior to using the toilet had been unsuccessful, it would be more reasonable to leave the window shut than to climb on to the toilet to open it.

[11] In summary, therefore, although I consider that some of the alternative courses of action suggested by counsel for the defenders were impracticable, I find that others were available to the pursuer generally, and in particular on the day when her accident occurred.

Were the defenders in breach of statutory duty?
[12] I address in turn each of the statutory duties which the defenders are said to have breached. It is convenient to begin with Regulation 15 of the Workplace Regulations, paragraph (1) of which provides as follows:

"No window, skylight or ventilator which is capable of being opened shall be likely to be opened, closed or adjusted in a manner which exposes any person performing such operation to a risk to his health or safety."

Counsel's researches did not disclose any cases in which the proper interpretation of Regulation 15 has been considered. Counsel for the pursuer submitted that the duty under this regulation is strict and does not require proof of foreseeability. In any event, even if it was necessary to prove foreseeability it was proved by the circumstances of this case. The metal ring was at a height which could not be reached by any employee of less than a certain height, several of whom had given evidence. No pole was available in the toilets. As a matter of fact the window was opened. On the proper approach to the expression "risk to his health or safety", counsel referred by way of analogy to the following passage from the judgment of Hale LJ in Koonjul v Thameslink Healthcare Services [2000] PIQR 123 at 126 concerning regulation 4(1) of the Manual Handling Operations Regulations 1992:

"...There must be a real risk, a foreseeable possibility of injury; certainly nothing approaching a probability. I am also prepared to accept that, in making an assessment of whether there is such a risk of injury, the employer is not entitled to assume that all his employees will on all occasions behave with full and proper concern for their own safety."

Hale LJ's judgment (though not the particular passage quoted) was referred to with approval by an Extra Division in Taylor v City of Glasgow Council 2002 SC 364.

[13] In my opinion, a breach of the duty imposed by Regulation 15 will occur where two conditions are fulfilled. Firstly, a particular manner in which a window etc is opened, closed or adjusted must be such as to expose the person performing the operation to a risk to his health or safety. Secondly, it must be likely that the window etc will be opened, closed or adjusted in that manner.

[14] It is accepted by the defenders that standing on the toilet bowl was a manner of performing the operation of opening the window which exposed the pursuer to a risk to her safety. The first condition is therefore fulfilled. The critical issue seems to me to be whether it was likely that the window would be opened in this manner. In Cream Holdings Ltd v Banerjee [2005] 1 AC 253, Lord Nicholls of Birkenhead observed (in a rather different context) at paragraph 12:

"As with most ordinary English words 'likely' has several different shades of meaning. Its meaning depends upon the context in which it is being used. Even when read in context its meaning is not always precise. It is capable of encompassing different degrees of likelihood varying from 'more likely than not' to 'may well'. In ordinary usage its meaning is often sought to be clarified by the addition of qualifying epithets as in phrases such as 'very likely' or 'quite likely'...".

[15] Counsel for the pursuer submitted that "likely" in Regulation 15 was at the lower end of the scale of probability, meaning simply "possible". It imported the concept of foreseeability, at the level described by Hale LJ, into Regulation 15. Counsel for the defenders, on the other hand, submitted that "likelihood" was a high threshold, meaning probable. This test was not met because it was not reasonably foreseeable that any employee would stand on the toilet to open the window, especially as there was a pole available nearby in the janitor's office which was an obvious place to look for one.

[16] In my opinion the context in which the word "likely" appears in Regulation 15 indicates that it is intended to mean "more likely than not". It seems to me that the concept of foreseeability of injury has already been imported into the regulation by the reference to "risk" to health or safety, i.e. in the first condition which I have identified. I accept, under reference to Hale LJ's observation in Koonjul, that the "risk" to health or safety need only be a foreseeable possibility. Having regard to that relatively low threshold, and to the fact that the regulation imposes strict liability if the two conditions are met, I consider that it would be imposing too high a duty on an employer if, in addition to these factors, the likelihood of an operation being carried out in a way which exposed a person to risk also needed to be no more than a foreseeable possibility. It is noteworthy that, in contrast to the duty under regulation 15, the duty under Regulation 4(1) of the Manual Handling Operations Regulations is subject to the defence of reasonable practicability. If the word "likely" were construed as meaning only a foreseeable possibility, then an employer would be under an absolute duty, regardless of reasonable practicability, to ensure that no window, skylight or ventilator could be opened in any way which was a foreseeable possibility and which gave rise to a foreseeable risk. That does not seem to me to be a sensible interpretation of the Regulation.

[17] I derive some support for this view from the terms of the Workplace Directive (89/654) which the 1992 Regulations were intended to transpose into national legislation. It was accepted by the Court in Taylor v City of Glasgow Council (above) (Lord Reed at paragraph 16), in accordance with the principle in Marleasing SA v La Commercial Internacional de Alimentación SA [1990] ECR I-4135, that regulations implementing the "daughter" directives of the Framework Directive (89/391) should be interpreted, so far as possible, so as to achieve the result pursued by the directive in question. Paragraph 10.1 of the Annex to the Workplace Directive provides that:

"It must be possible for workers to open, close, adjust or secure windows, skylights and ventilators in a safe manner. When open, they must not be positioned so as to constitute a hazard to workers".

This wording does not suggest to me that Regulation 15 should be construed as imposing the level of duty for which the pursuer contends. Nor, in my opinion, does the construction which I prefer have the effect of reducing the level of protection afforded to employees below that which would have subsisted by application of the common law test of reasonable foreseeability.

[18] Applying this approach to the facts of the present case, I am unable to hold that it was likely that the window in the cubicle would be opened by persons who stood on the toilet in order to reach it. The evidence indicates that persons of at least 5ft 41/2 ins in height could reach the metal ring while standing on the ground. There were, in my opinion, obvious safe alternative courses of action open to a person such as the pursuer who, due to her height, could not reach the ring. The first would have been to request a suitable window pole from the janitor before entering the cubicle. If no pole was available because the janitor was absent and his room locked, then in my view the appropriate course of action would have been to leave the window closed and, perhaps, to have made representations in due course to the head teacher that a pole should be supplied in the vicinity of the toilet, as is now the case. I share Mrs Convery's surprise that the matter was never drawn to her attention as a problem prior to the pursuer's accident. Opening the window was obviously a matter of courtesy rather than something which had to be done in order to enable an employee such as the pursuer to make use of the toilet facilities, and it does not seem to me to have been "likely" that staff would expose themselves to risk merely out of courtesy to others. The views which I have expressed are applicable generally to use of the toilet by persons unable to open the window by hand, and also specifically to use of the toilet by the pursuer on the occasion of her accident.

[19] So far as likelihood based on actual knowledge by the defenders is concerned, it is clear from the evidence that the fact that staff were standing on the toilet to open the window was not drawn to the attention of the head teacher before the accident occurred. There was no evidence that it was ever drawn to the attention of any other responsible officer of the defenders; indeed it was only after the pursuer's accident that staff members discovered that others had been doing it too. In all of these circumstances I consider that there was no breach by the defenders of their statutory duty under Regulation 15.

[20] It was also submitted that the accident was caused by the defenders' breach of Regulation 5(1) of the Workplace Regulations, which provides that:

"The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair".

The regulation applies inter alia to "equipment and devices intended to prevent or reduce hazards". The argument was that the provision of a window with a metal ring but no window pole was an unsafe system, the consequence of which was that the workplace equipment was not maintained in an efficient state, the word "efficient" being approached from the point of view of health, safety and welfare.

For the defenders it was submitted that Regulation 5 is concerned with maintenance, not provision, of equipment. One must look elsewhere in the Regulations to see what must be provided: Coates v Jaguar Cars Ltd [2004] EWCA Civ 337 at paragraph 12. I accept this submission. Even if one accepts (as I do) that although there was a window pole in the janitor's office it was not always readily available for use in the staff toilets, this did not in my opinion constitute a failure of maintenance of either the workplace or of any equipment or device. The duty under Regulation 5 accordingly adds nothing, in my opinion, to the more specific duty under Regulation 15 so far as the circumstances of this case are concerned.

[21] It was further submitted that the accident was caused by the defenders' breach of Regulation 20 of the Workplace Regulations which requires suitable and sufficient sanitary conveniences to be provided at readily accessible places. Under Regulation 20(2), sanitary conveniences are not suitable unless "...the rooms containing them are adequately ventilated and lit". For the pursuer it was contended that the absence of a window pole rendered the means of ventilation in the toilet cubicle incomplete, so that the room was not adequately ventilated. For the defenders it was submitted that the window provided adequate means of ventilation and that the regulation was not concerned with the placing of a pole in the toilet. It was sufficient that methods of opening the window were available. In any event the pursuer's accident was not caused by inadequate ventilation. Again I accept the defenders' submissions and hold, firstly, that the defenders were not in breach of their duty under Regulation 20 and, in any event, that there would have been no causal link between such breach and the injury sustained by the pursuer.

[22] Finally, it was submitted that the defenders were in breach of Regulation 3 of the Management of Health and Safety at Work Regulations 1999 by having failed to make a suitable and sufficient risk assessment in relation to the opening of the window. The factual basis for the submission, as I understand it, was the defenders' failure, in response to a Specification of Documents, to produce a relevant risk assessment. I do not consider this to be a sufficient basis for me to find in fact that there had been no risk assessment. In any event, I am not satisfied that a suitable and sufficient risk assessment would have disclosed the risk of persons standing on the toilet to open the window. Given the alternatives which I have found to be available to persons unable to reach the metal ring, and the absence of evidence of actual knowledge by the defenders that staff were standing on the toilet (and it is worth recalling that the frequency of this occurring remained unclear), I accept the defenders' contention that no breach of Regulation 3 has been established.

[23] In these circumstances I hold that the pursuer has not proved that her accident was caused by any breach of statutory duty by the defenders and accordingly that the defenders have incurred no liability to make reparation to the pursuer for the loss and damage which she has sustained as a consequence of the accident.

Contributory negligence
[24] As I have not found the defenders liable to make reparation to the pursuer, it is unnecessary for me to address the question of contributory negligence in detail. Had the question arisen for decision, I would have made a finding of substantial contributory negligence on the part of the pursuer. This was not a case of momentary inattention or inadvertence (cf McGowan v W & JR Watson Ltd 2007 SC 272 and the cases there cited). It was a deliberate act by the pursuer which she acknowledged in her evidence to have been dangerous and which she had done on an unspecified number of previous occasions. In these circumstances I would have been minded to reduce any award to the pursuer by 50% to take account of her contributory negligence.

Quantification of damages
[25] I now consider the damages which I would have awarded (prior to reduction for contributory negligence) had I found in the pursuer's favour on liability. As I have already described, the pursuer fell heavily on her left heel and the toilet bowl then fell sideways on to her left foot. She suffered extreme pain in her heel. Her husband was summoned and drove her to Hairmyres Hospital. X-rays revealed a displaced fracture of the posterior tuberosity of the heel to which the Achilles tendon attached and an undisplaced fracture of the base of the 5^th metatarsal. The pursuer initially declined surgery in the hope that it would not be necessary but when she returned to the Fracture Clinic the following day she was persuaded that surgery represented the best option to repair the calcaneal fracture. Surgery was performed on 14 June 2007 and two screws were inserted to hold the calcaneal fracture in the correct position. She was discharged with a below the knee non-weight bearing plaster the following morning. Her lower leg and foot were cast in an equinus position. The fractured toe did not require surgery. She was provided with a zimmer and crutches. After two weeks the plaster cast was taken off and a somewhat lighter one put on in its place. For several weeks after the accident the pursuer was housebound. While wearing the cast she was unable to dress or bathe herself or to go to the toilet alone at night. She lives in a single storey house but as it has 12 steps up to the front door she had great difficulty in getting to the car to go out. During this period she was in considerable pain which she managed with strong analgesics. Six weeks after the operation the plaster cast was removed and the pursuer began physiotherapy. After a further three weeks of using crutches she was given two sticks for walking. By October 2007 she was still using the two sticks to walk. She tried to carry out exercises as directed by the physiotherapist. Her subsequent recovery has been slow and incomplete. She was unable to drive for a year after the accident. In January 2008 she was referred back to the Orthopaedic Clinic by her GP because of concern about her continuing incapacity. She was seen in March 2008 and the Consultant Orthopaedic Surgeon described her then current symptoms as "slight discomfort and difficulty in walking". She received further physiotherapy for three months in late 2008 and made some further progress.

[26] Evidence was led on behalf of the pursuer from Mr Andrew Shaw, Consultant Orthopaedic Surgeon, and on behalf of the defenders from Mr Angus MacLean, Consultant Orthopaedic Surgeon. Mr Shaw gave his evidence on commission prior to the proof. With the exception of one matter, discussed below, there was no material disagreement between the consultants. They agreed that the pursuer's injury was an unusual one in that it was not a rupture of the Achilles tendon but rather the detachment of the tendon from the calcaneum. Both attributed her continuing disability to a tightening of the Achilles tendon which limits her dorsiflexion and so reduces her push-off force while walking. This causes her to continue to walk with a limp and to tire easily as her calf muscles have to work harder. She has difficulty getting down to a kneeling position. She has to place her foot sideways when going up and down stairs. She continues to suffer from a degree of stiffness and pain in her ankle and hindfoot, especially after walking for a distance. No significant improvement in function is now expected.

[27] The injury has had a significant adverse effect on the pursuer's quality of life. She was looking forward to an active retirement. As it is, she longer enjoys going for walks as she previously did. Her ability to play with and care for her grandchildren is restricted. Her travel plans have been curtailed and she was unable to participate in a pre-planned family holiday abroad in the summer of 2007. She is unable to perform household tasks requiring the use of a ladder, such as taking down curtains. She can no longer assist her husband with gardening.

[28] I can deal fairly briefly with the matter upon which the two consultants were not in agreement. In his report dated 7 April 2010, Mr MacLean expressed the view that the pursuer's residual limitation could be addressed by further surgery to lengthen her tendo-Achilles. Mr MacLean stated that this would be a day case surgical procedure under anaesthetic. Recovery would take approximately 3 to 6 months following which he expected that the pursuer's range of movement in the ankle would be significantly improved, her limp would settle and there would be an 80% chance of restoration of normal function in the long term. Mr Shaw regarded this as over-optimistic. He considered that although the lengthening might improve the range of motion of muscle but would not increase the pursuer's push-off force. Mr Shaw accepted, however, in cross-examination that due to his specialist area of practice Mr MacLean was better placed to give an opinion on these matters. For his part, Mr MacLean accepted that surgery has risks and that there was a 2-5% chance that it could make matters worse. The pursuer stated clearly that she did not wish to undergo further surgery. She was concerned about the risks inherent in surgical operations and also by the prospect of spending another 3 to 6 months housebound while recuperating. Mr MacLean did not regard the pursuer's attitude as unreasonable. Neither do I. I have therefore proceeded to quantify damages without regard to any prospect of amelioration of the pursuer's current limitations by means of further surgery.

[29] On behalf of the pursuer it was submitted that solatium should be assessed at £20,000 with one half thereof attributed to the past. This was at the bottom end of the "severe" category of ankle injuries in the Judicial Studies Board Guidelines and also at the top end of the "serious" category of Achilles tendon injuries. Reference was made to Wisely v John Fulton (Plumbers) Ltd 1998 RepLR 91, Gibson v Whyte 2007 RepLR 50, Fuller v Haymills (Contractors) Ltd (Kemp & Kemp para I8-006) and Evans v Absolute Clean Rooms Ltd (Kemp & Kemp para I7-004). For the defenders the figure suggested was £13,000 with one half attributed to the past. This was in the middle of the "moderate" category of ankle injuries in the Judicial Studies Board Guidelines. Reference was made to Souter v Allarburn Holdings Ltd 1997 SCLR 587 and Coggin v Portway Minerals (Elton) Ltd (Kemp & Kemp, para I7-011). It is clear that the pursuer's foot has not healed as well or as fully as would normally be expected following an ankle injury, possibly because of the unusual nature of the injury. Having regard to the Guidelines and to the facts of the various cases cited, I consider that the pursuer's injury is at or slightly above the top end of the "moderate" category in the Guidelines and that an appropriate figure for solatium would have been £17,500, with one half attributed to the past upon which interest at 4% per annum would have amounted to £1,032.73.

[30] The pursuer sought damages under both sections 8 and 9 of the Administration of Justice Act 1982. Counsel for the defenders objected to the leading of evidence as to the number of hours of services provided to the pursuer and the number of hours of services which the pursuer has been unable to provide, on the ground that neither had been pled specifically on record. This objection was renewed in his submission. It was argued that in the absence of specification on record of the number of hours worked and the hourly rate sought, a claim for services under either section 8 or 9 could be quantified only as a broad lump sum. Counsel proposed £1,500 plus interest at half the judicial rate for past services and £1,500 for future services. I reject this submission and repel the objection. In my opinion the quantification of damages for services by relatives, and for a pursuer's inability to provide services, by reference to numbers of hours and a (modest) notional hourly rate is well established and does not require specific pleading under Chapter 43 procedure. It is, in my view, simply a method of arriving at a lump sum figure for each of the two heads of claim which can be seen to have some objective justification.

[31] As regards section 8, the pursuer's husband had, during the three months after the accident, assisted the pursuer with a range of personal activities including bathing and dressing. Mr Wallace estimated that he spent more than eight hours per day helping the pursuer with her personal care. I consider his estimate to be excessive. Counsel for the pursuer proposed five hours per day at an hourly rate of £5.00. This seems to me to be reasonable, giving a figure of £2,100. Interest at 4% was sought for the three-month period during which services were supplied (£21) and at 8% from 13 September to the date of proof (£453.37). Again I would have regarded this as appropriate.

[32] As regards section 9, the pursuer was unable to undertake any household duties during the first three months. Thereafter her ability gradually improved, as described above, though not to the level of full recovery. Moreover, her capacity to provide care for her young grandchildren remains limited. Damages were sought, at the same hourly rate as above, for three hours per day for the first three months, two hours per day for the next six months, and three hours per week thereafter to the date of the proof. I would have accepted those figures which, with interest, amount to £6,792.34 in total. For the future, counsel proposed three hours per week with a multiplier of 12. As I understood it, this was intended mainly to recognise the pursuer's continuing inability to provide care for her daughter's children. In my opinion, having regard to the diminishing need for care as the children reach school age, and also the likelihood of the pursuer being able to provide care more easily for older rather than very young children, a multiplier of 12 would have been too high. I consider that 5 would have been more reasonable, giving a total figure of £3,900.

[33] The pursuer claimed additional expenses amounting to £161 in respect of items such as shoes, a trampette and exercise ball, travel to appointments and a physiotherapy fee. The defenders did not take issue with this figure and I would have accepted it. In total, I would therefore have quantified damages, inclusive of interest, at £31,800.00.

Disposal
[34] However, in view of my conclusion on liability, I shall grant decree of absolvitor.