Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 28
PD2768/10	OPINION OF LORD STEWART in the cause RONALD SUTHERLAND Pursuer against McCONECHY'S TYRE SERVICE LIMITED Defenders ­­­­­­­­­­­­­­­­­________________

Pursuer: H Campbell QC; Digby Brown LLP, Solicitors

Defender: G Clarke QC; HBM Sayers, Solicitors

17 February 2012

[1] I heard evidence and submissions in this Personal Injuries case over three days to 22 December 2011. Having made avizandum I have formed the Opinion that the Defenders should succeed on the basis that they fulfilled their common law duty of care to the Pursuer and that the Pursuer was the author of his own accident and injuries. Had I found in the Pursuer's favour I would have assessed damages in the sum of £6,264 inclusive of interest to date on a full liability basis.

Background
[2] The accident in question was an accident at work. The Pursuer is suing his employers, the Defenders. The accident happened on 17 April 2009 at the Defenders' Dingwall premises. The Defenders carry on a tyre-fitting business at the premises. As at the date of the accident the Pursuer had been manager at the Dingwall premises for 23 years. The premises had previously been owned by another tyre company, Motorway Tyres. The Defenders took over the business about six years before the accident. The employees were transferred and the Defenders kept the Pursuer on as manager.

[3] The Dingwall premises have four service bays, collectively known as the workshop, and also an office and a store. The service bays were all in a row, each accessed from the outside by a roller-shutter door. The work, so far as I heard about it, included wheel-balancing, servicing and replacing brakes, exhausts and shock absorbers, repairing punctures and fitting tyres. There was a wheel balancing machine in bay number one. There was a four-post ramp in bay number three for exhaust-fitting work and a two column ramp in bay number four. There was a tyre safety cage - the purpose of which will be described below - with five vertical bars measuring about four feet high by four feet wide by 18 inches deep, resting on the floor and secured to the wall in bay number four adjacent to the outside entrance. Depending on what work was going on and how much stock was stored you could walk through from one bay to another the length of the inside of the workshop. I heard about exhaust and tyre stock being stored in bay number four. Otherwise access from one bay to another was by the outside doors.

[4] Not all of the tyre work was done inside or even at the premises. The tyre work which was done inside the premises was done in bay number two where there was a puncture repair bench and where the tyre-fitting tools and equipment were kept. Tyre-fitting might also be done in the open air outside the bays. Commercial vehicles might be worked on outside, with vehicles jacked up and sometimes with tyres being fitted and inflated to working pressure on the vehicle wheels bolted to the hubs. The branch had two vans for road-side work and for tyre fitting and repairs at customers' premises. Each van was equipped with a safety cage.

[5] The normal staff complement at the Defenders' Dingwall branch during the period of interest was four persons: I heard about a manager, namely the Pursuer followed, after the accident, by Daniel Currie; a foreman namely Arthur Fraser substituted for in 2009 by Daniel Currie, who subsequently moved up to manager in place of the Pursuer; a fitter namely James McCall followed, in 2006, by Stuart Ross followed, after an interval, in 2009, by Martin Grant; and Joanne or Joanna in the office. The impression given was that the Pursuer's management style was hands-on, tyre fitting; and he liked to be out in the van rather than in the depot. He was responsible for the money: but he did not have a taste for office work and his computer skills were negligible. He seems to have left Mr Fraser to do the office work.

[6] The branch fitted both commercial, otherwise truck or lorry, and light vehicle, otherwise car and van, tyres. Wheels above 16 inches in diameter are treated as "commercial". The air pressure in light vehicle tyres is rarely more than 40 pounds per square inch [psi] and does not generally give rise to risk. Risk arises above 50 psi. The air pressure in commercial tyres can be up to 150 psi and does give rise to risk. The greatest risk is with split-rim wheels which are made up of a number of components: if there is a defect or if the parts are not properly assembled and locked or if the tyre is not correctly fitted, split-rims can effectively explode under pressure. Split rims tend to be used only on commercial vehicles. They have become and are becoming less common. At the time of the accident very few tyres were being fitted to split rim wheels at the Dingwall branch - one per cent of commercial tyre fittings according to one estimate.

[7] The risk with one-piece or solid rims - which is a very much smaller risk in terms of frequency - is that, if the tyre beads (inner circumferences which seal against the outside circumference of the wheel) are not properly seated, the tyre may be blown over the rim on one side and the wheel may be blown partially or wholly out of the tyre on the other. The whole tyre and wheel assembly may be forced from its resting position against a wall or on the floor if unrestrained. Beads may not be properly seated if there is poor fitting, or if the wheel rims are damaged or if the beads themselves are damaged. General, but I gather very remote, risks that apply to both split- and one-piece rims include wheels with undetected fractures exploding under pressure and tyres with undetected defects exploding under pressure. Over-inflation can also cause tyres to explode.

[8] Proper tyre-fitting practice involves inspecting the tyre and the rims of the wheel, before fitting, for observable defects. With commercial tyres of standard sizes, the received wisdom is that if, after fitting, a tyre is inflated to 15 psi or so, a trained fitter will see on inspection whether the beads are properly seated and will have a reasonable degree of assurance that the rims and the tyre are in serviceable condition. If there is no problem, inflation can continue to working pressure with inspection by looking and listening at intervals. Working pressure for a standard size commercial tyre, according to the Pursuer, can be in the range between 95 and 150 psi. A normal working pressure would be 125-135 psi. The air compressors in the Defenders' premises were set to 150 psi. It could take 15 minutes to inflate a commercial tyre to final working pressure. The last 15 pounds of pressure were the hardest to achieve.

[9] In general the risk arising during inflation is a risk that arises with "loose" wheel and tyre assemblies, i.e. assemblies not fitted to a vehicle. Where the tyre is being inflated with the wheel bolted to the hub on the vehicle there is practically no risk of the wheel and the tyre causing injury if they separate under pressure. Precautions include standing to the side of the assembly during inflation to working pressure. Another precaution available for loose truck assemblies of standard size is to roll the assembly into the tyre safety cage. All of the tyre-fitting witnesses, the Pursuer included, used the safety cage for inflating tyres on split-rim truck wheels. The Pursuer simply didn't think the safety cage was necessary for solid-rim truck wheels.

The accident

[10] The accident happened when the Pursuer was inflating a commercial vehicle tyre on a loose, solid-rim wheel. The working pressure was meant to be 135 psi. The Pursuer fitted the tyre to the wheel and inflated the tyre in bay number two. The assembly was leaning against a tyre rack or the wall of the bay. The bead blew over the rim of the wheel, the wheel was blown partially out of the tyre away from the rack or wall towards the Pursuer and at the same time the tyre and the wheel together were blown towards the Pursuer by the pressure of escaping air. The wheel hit the Pursuer on his left leg and inflicted soft tissue injuries. According to the agreed medical report the most significant injury was to the medial aspect or inside of the Pursuer's left knee.

[11] The Pursuer was in a sense unlucky. Accidents of this kind with solid rims are unusual. The Pursuer said this was the first time ever in his life he had experienced such a thing. The wheel was a "super single", made of aluminium and may have been run with a flat tyre, something that could have damaged the rims. The Pursuer claims to have inspected the rims for damage and judged that they were not deformed. He inflated the new tyre using a pressurised air line, initially, he says, to 15 psi and checked again before inflating further. He had partially inflated the tyre to 110‑115 psi. At that stage he was called away to another job and left the tyre leaning against the tyre rack or the wall in the bay. The Pursuer returned, re-fitted the air line and recommenced inflating the tyre to its working pressure. After two or three minutes the bead blew over the rim of the wheel and the accident happened. Other witnesses were sceptical, believing that, were the assembly defective, the tyre would have blown at a lower pressure without much risk of injuring the Pursuer, or would have blown when left leaning against the wall while the Pursuer was away working on the other job; and that if the pressure had really gone above 110-115 psi there would have been a much bigger explosion. On the other hand it appears that the blast dislodged some paint from the ceiling. In the absence of contradictory eye-witness testimony or a technical investigation yielding contrary conclusions I have no reason to reject the Pursuer's account; and, as I say, he was in a sense unlucky.

[12] If the assembly had been in the tyre safety cage in bay number four when the Pursuer was inflating the tyre, the injury to the Pursuer would not have happened because the wheel and tyre would have been contained within the cage. The way in which the case has been presented makes it convenient to consider first whether the Pursuer was to blame for the fact that the assembly was not within the tyre safety cage when the Pursuer was inflating it.

Was the Pursuer at fault?
[13] It is a matter of admission in the pleadings that "it is normal and proper practice in the tyre industry to use a cage when working with tyres and in particular when inflating them".

[14] The Pursuer had obtained City & Guilds certificates in among other things commercial tyre fitting. Judging by what other witnesses said about the City & Guilds courses, the Pursuer must have been trained to use a tyre safety cage for all standard-size, commercial vehicle tyre fitting and must have been aware of the risks of not using a safety cage. He must have been aware that using a tyre safety cage for commercial tyre fitting was the proper practice.

[15] Following a documented risk assessment, it was company safety policy, and the Pursuer knew it was company safety policy, to use a safety cage for inflating commercial tyres, solid rims as well as split rims. The Pursuer accepted in evidence in chief that he knew he was doing something "contrary to health and safety". He said that if he had been "following the rules" in the Defenders' health and safety manual, he would have put the wheel and tyre assembly in the cage. In cross-examination the Pursuer accepted that he should have had the tyre in the safety cage before he inflated it above 15 psi. He said that it was a risk that he took knowing it was in breach of company rules. He said that he was responsible for enforcing company health and safety policy in the Dingwall depot and he did not enforce it. He claimed that he would have told his staff that they should use the cage for truck tyres but it was up to them.

[16] The Pursuer admitted signing the Defenders' health and safety "Staff Induction Checklist" at some stage in the roughly six year period leading up to the accident. He probably signed the document in 2003 when the undertaking was transferred to the Defenders. The checklist included the instruction: "Always use inflation cages when inflating truck tyres." The Pursuer signed immediately below the following sentence: "Sign below to state that you understand the importance of the safe operation of all equipment."

[17] Further it was proved that two years before the accident an e-mail had been sent from the Defenders' health and safety officer, George Bilby, to the managers of all branches including the Pursuer at Dingwall drawing attention to a health and safety prosecution arising from a fatal accident involving a tyre fitter at another company, Auchinlea Tyres. Tom Dow, Operations Manager East, asserted that he had sent a supplementary message with the e-mail. The e-mail itself stated: "Tyre safety cages must be used when inflating all loose commercial wheels to their final working pressures unless the wheel is too large to fit into the cage." In relation to over-size wheels (not in the safety cage) the e-mail directed: "fitters should stand away from the wheel as far away as the airline allows..." The Pursuer "vaguely remembered" the e-mail.

[18] The Pursuer accepted in cross-examination that he signed annually to the effect that he had read and understood the Defenders' Health & Safety Policy Manual annually. A copy of the manual was kept in the office at the Dingwall depot. Copies of the Health and Safety Audit Checklist for Dingwall branch for 2007 and 2008 respectively were produced. Both confirm that the health and safety manual including safety policy is "current, complete & signed". The 2008 audit was carried out on 7 February 2008.

[19] The safety manual states that "the loose tyre/ wheel assembly must be put into a safety cage or a portable safety device". The manual is open to interpretation but it was accepted by the Pursuer and by Mr Campbell QC on his behalf that the instruction related to all commercial vehicle tyre/ wheel assemblies other than oversize assemblies that could not fit in to the cage. The manual also stated: "... air lines must be fitted with a minimum of 6 feet (2 metres) of hose between the clip on chuck and the air line control and operators must stand well clear of the wheel during inflation." If the Pursuer, as he says, signed "every year", he must have signed the manual within at most sixteen months before the accident.

[20] The Pursuer told Counsel for the Defenders, Mr Clarke QC, in cross‑examination that when he signed for reading and understanding the manual "that was a lie". Counsel asked the Pursuer how he protected himself, other employees and members of the public. In response the Pursuer shrugged his shoulders. He accepted that though he was responsible for enforcing the health and safety policy at the Dingwall depot, he did not enforce it.

[21] The Defenders had a system for monitoring that work was done in accordance with their health and safety procedures. It was the responsibility of the branch manager meaning, at Dingwall, the Pursuer, to monitor each fitter at least once every three months. The Pursuer was also responsible for monitoring himself. He signed the form on 9 February 2009, some five weeks before the accident.

[22] About two weeks before the accident the new foreman at the Dingwall depot, Daniel Currie, remonstrated with the Pursuer about the Pursuer's failure to use a tyre cage and "just got a mouthful of cheek". The evidence emerged spontaneously from the witness and appears to have come as a surprise to Defenders' Counsel although there was a suggestion that Pursuer's Counsel had notice of this in his precognition of Mr Currie. The point had not been put to the Pursuer. Mr Currie was a witness for the Defenders but did not have an apparent motive for supporting their case. Mr Currie left his job as manager in the Defenders' employment two months before the hearing because he "did not see eye to eye" with the company. I accepted Mr Currie's evidence on the point and accorded it full weight.

[23] There was evidence for both the Pursuer and the Defenders that bay number four where the tyre cage was located was used for stock storage and was usually untidy or at least full of stock. The implication, on the Pursuer's side, was intended to be, I think, that the tyre cage was difficult or at least bothersome to access and use. This is in spite of the contemporary health and safety audit check records to the effect that the tyre cage was accessible and in use (see below). If the tyre cage were difficult to access and to use, this, as I understand the evidence, was something the Pursuer was responsible for.

[24] There was evidence, including evidence from the Pursuer himself, to the effect that the Pursuer used to organise a tidy-up for visits by the Defenders' health and safety officer and by Tom Dow, Operations Manager East. The Defenders' Health and Safety Audit Checklist does have a "Housekeeping" section including separate items "Cleanliness", "Tidiness" and "Storage" with further detail of steps required for compliance. Mr Currie was taken on as foreman at the Dingwall branch on 16 March 2009, a month before the accident. He said that the state of the depot when he arrived was "terrible". Bay number four was "terrible", with stock obstructing access to bay number four and the safety cage. Daniel Currie said that he tidied the depot up when the Pursuer was out in his van.

[25] Martin Grant was taken on as a fitter at the Dingwall depot on 5 March 2009. His evidence was that he used the tyre safety cage for inflating commercial tyres every day. Bay number four was used as a store when he arrived but "you could still use the cage". The cage was situated just by the entrance to bay number four and "you just rolled the tyre round" by the outside or from the outside. According to Mr Grant, when Daniel Currie arrived Mr Currie tidied up bay number four to get access to the safety cage. It may be that Mr Currie was concerned about getting access inside the premises through the adjacent bay. A curiosity in the case is that the Defenders took photographs of the safety cage three days after the accident and that the photographs show a newly painted bright red cage with two "super single" commercial wheels (without tyres) apparently stored or dumped in the cage. No one could explain what the wheels were doing in the cage.

[26] It is important to record that the Defenders' annual health and safety audit checklist for their premises had a section on "Safety Equipment". Items in that section included: "6.14; Safety Cage; secured, accessible, in use". Item 6.14 was affirmed "yes" on completed checklists for the Dingwall branch in both 2007 and 2008. Mr Dow believed that the safety officer would either have seen someone using the cage or would have asked if it were used and made sure it was "not full of rubbish" or would have asked the manager (the Pursuer), who would have known (whether the cage was in use). All of this seems reasonable surmise but it is not of significant evidential value. Besides, it does not necessarily tell us whether or not the safety cage was "in use" for one piece, solid rim wheels as opposed to split-rim wheels. The questioning did not properly explore how the forms were completed and what part, if any, the Pursuer played in the process. The safety officer was not led as a witness.

[27] The documentation bears to record that the Pursuer was involved in rectifying faults found during the audit. One of the items shown as requiring attention in the 2007 safety audit checklist was the pressurised air line. The air line required to be modified to be 6 feet long (presumably between the nozzle or chuck and the air line control or trigger). The documentation shows the Pursuer confirming that this and all other outstanding items had been rectified within one week of the audit.

[28] The health and safety context includes the fact, spoken to by Mr Dow, that commercial tyre-fitting work is done within contract customers' premises. Contract customers include major national companies. Contract customers, understandably, having regard to the statutory health and safety regime, require the Defenders' health and safety policy and risk assessments to be produced for services provided within the customers' premises. It was for branch managers to supply risk assessments for work done on third party premises. Tyre safety cages were installed by the Defenders at contract customers' premises. I infer that there was a commercial incentive for the Defenders to maintain high health and safety standards. Mr Dow described the health and safety system as "blue chip"; and certainly the system itself was not the subject of any criticism by Mr Campbell QC, Counsel for the Pursuer.

[29] I conclude that the Defenders had a system, which, if it had been operated by the Pursuer, would have prevented the accident; and that in instituting the system and taking the steps they did to enforce it, as described above, the Defenders fulfilled their duty of care to the Pursuer - provided of course there was no condonation of failure to implement the system. With that proviso, the fact that the system was not in operation at the Dingwall premises was solely because the foreman, being the Pursuer, who was responsible for enforcing the system, did not enforce it. I conclude that the Pursuer caused himself injury or contributed to his injury by failing to take reasonable care for his own safety in a number of ways. He failed to use the tyre safety cage and in that respect he failed to discharge his responsibility as branch manager to take reasonable care for the safety of himself and others, failed to follow the Defenders' safety policy and instructions, failed to do what he had been trained to do and failed to implement what was, to his knowledge, considered to be proper practice in the industry. The Pursuer also caused his own injury by not standing to the side of the wheel and tyre assembly as he was inflating the tyre. As indicated above, one of the precautions used by the Defenders was to supply pressurised air lines with a distance of six feet between the chuck and the trigger: the arrangement allowed tyre fitters to stand clear of tyres they were inflating. In standing in the line of fire, as it were, the Pursuer failed to take reasonable care for his own safety. It would have been reasonably practicable for the Pursuer to take the precautions which would have prevented the injury.

[30] The accident happened on a Friday. On the Tuesday following, 21 April 2009, the Pursuer was suspended. At a disciplinary meeting on 28 April the Pursuer was recorded as telling his manager, Tom Dow, that he, the Pursuer, had set a bad example to other employees. He was sorry he did it. He made a mistake. If he retained his job "it will be in the cage all the time." The Defenders seem to have been particularly exercised by the fact that another employee and a member of the public were within yards in fitting bay number two at the time of the accident. The Pursuer was dismissed for gross misconduct. At the internal appeal hearing on 25 June 2009 the Pursuer stated that he knew that other people had inflated truck tyres without using a safety cage and he knew this would happen again in the future. The dismissal was upheld.

[31] I confess to having been suspicious that the accident was used as a pretext for sacking the Pursuer: but there was no evidence to this effect. The Pursuer himself did not complain about his dismissal. His undoubted qualities of character, which include - not always to his own advantage - independence of mind, were well-evidenced by the way in which he found another job almost immediately.

Were the Defenders to blame for the accident?
[32] It emerged during the evidence that I heard that the Defenders had a health and safety officer who made periodic visits to the branch, perhaps four times a year. The health and safety officer did not give evidence. It was apparently understood by the Pursuer's advisers before the proof that Mr Dow was responsible for health and safety matters and it seems that they envisaged that he would deal in evidence with all such matters. The Pursuer's case on paper and in evidence as I understand it does not desiderate any specific, additional steps that the Defenders should have taken to institute, maintain and enforce a safe system. The Pursuer's case is that his manager, Tom Dow, was actually aware of the unsafe practice of not using the safety cage at Dingwall and did not disapprove of it (thereby condoning malpractice). The case on averment is: "The defenders' managers and, in particular, Mr Dow, were aware of the practice [of not using safety cages], having observed it frequently, and did nothing to stop it." There was no evidence at all from the Pursuer that there was some additional measure that would have persuaded him to use the safety cage and would have prevented the accident. Some of the evidence from other witnesses suggests that if the Pursuer had been seen by higher management not using the safety cage when he should have been using it he could well have been dismissed. As presented, the Pursuer's case stands or falls on the proposition, which it is for the Pursuer to prove, that Mr Dow was aware of the practice of not using the safety cage at Dingwall.

[33] In evidence Mr Dow strongly denied that he was aware of the practice. In submissions Mr Campbell QC criticised Mr Dow's evidence, saying that Mr Dow was either "covering his own back" or that his visits to the Dingwall branch were conducted with his "eyes wide shut". My assessment is that Mr Dow might well have visited the branch many times without being aware of the non-use of the tyre cage because the opportunities for observing non-use were limited, because Mr Dow's focus was on other things and because he assumed, and was entitled to assume, that the safety-cage system was operational.

[34] The Pursuer said of his own role in supervising tyre-fitting at Dingwall that "I am not saying I was ignorant" of the fact that the cage wasn't used for inflating commercial vehicle tyres. "Nine times out of ten", the Pursuer said, he, the Pursuer, wasn't in the depot. He said he knew it was going on: but "when I seen them, I seen them; and when I didn't, I didn't." If the latter applies to the Pursuer then it applies, even more so to the Operations Manager East, Tom Dow, who was an occasional visitor and who stated that he had never actually seen loose commercial tyres being inflated outside the cage at Dingwall.

[35] Mr Dow (58) had trained as a tyre fitter in 1971. He had done three years in the police and then returned to tyre fitting. He had done his City & Guilds in both car and truck tyre fitting. During his time with Motorway Tyres as Area Manager, Mr Dow had visited Dingwall perhaps four times a year. In submissions Mr Campbell QC said of Mr Dow's visits to Dingwall, as the Defenders' Operations Manager East, that "he wasn't there for health and safety... he was interested in the footfall" meaning that Mr Dow's visits were concerned with the commercial side of the operation. Like Mr Campbell QC I formed the impression that Mr Dow's focus was on the commercial side, the "profit and loss" as Mr Dow called it.

[36] Mr Dow himself said that he would take action if he saw a blatant hazard. He had personally witnessed, at some previous point in his career, "a rim" being blown up to the roof. That was a tractor tyre. He accepted in cross-examination that it was very uncommon for lorry tyres to explode. He had never personally seen that happen. He had heard people talk about it. There was also a risk of friction burns from the expelled air. He stated in a way that I found believable that he would not stand looking over the shoulder of a fitter who was inflating a commercial tyre to working pressure away from the safety cage: "it wouldn't happen, I'd be terrified"; and "I'd think I'd be getting blown up. I wouldn't stand there and say nothing". In cross‑examination he said that "it's not in the making of me" (to say nothing). I formed the impression from seeing and hearing the witness that this was a fair self-assessment.

[37] Mr Dow explained that he had seen fitters not using safety cages on two or three occasions - over the course of his career, as I understood it. He remembered giving verbal warnings to a fitter in Brechin and a fitter in Kirkcaldy. If he had seen a fitter not using a safety cage and had been told that it was "OK" with the manager he would have "dragged the fitter in to see the manager" to discuss it. If the manager had permitted the practice, Mr Dow would have taken disciplinary action against the manager. The Pursuer had been dismissed because what the Pursuer had done was stupid and serious. The Pursuer had been risking the life and limb of other persons in the building. There had been a customer and other staff nearby. Questioned about the tyre safety cage, Mr Dow said if he had found the safety cage at Dingwall "full of stuff" he would certainly bring it up because that would be an indication of it not being used. He had given the manager at Aberdeen a verbal warning for an untidy tyre cage. Mr Dow accepted that the bay at Dingwall containing the safety cage could be cluttered from time to time, but it was never full. Even with stock stored in the bay the safety cage would not be blocked off because it was at the entrance doorway. I accepted Mr Dow's evidence on these matters. It was broadly supported by Mr Currie and Mr Grant.

[38] Daniel Currie (48) was an impressive witness. Compared with the Pursuer he was well-versed in the technicalities of the business. He had been with the Defenders as their foreman at the Dingwall depot for a month before the accident, substituting for Arthur Fraser who was on sick leave. He had previously worked with the tyre company ATS and had known Tom Dow as a manager there. Mr Dow recruited him for the Defenders. He described Mr Dow as "very stringent on health and safety". He had actually seen Mr Dow taking action over non-use of a safety cage. Mr Currie had been present at ATS when Mr Dow had seen someone inflating a commercial tyre without using a cage: Mr Dow had reprimanded the individual and had reported the matter to the manager. Mr Currie said he had a fine working relationship with Mr Dow but he was not friendly with him. Mr Currie said "I don't actually like the man." Mr Currie had recently left the Defenders' employment after "a difference of opinion with the company in general".

[39] Martin Grant (42) still worked for the Defenders as a tyre fitter. He had previously worked under Mr Currie at ATS tyre services. Everything he knew about tyre-fitting, he had learned from Mr Currie. Questioned about Mr Dow's attitude, he said that area managers take health and safety very seriously. He said: "If you're not doing proper procedure it can be instant dismissal." He was confident that if Mr Dow had seen someone not using a safety cage he would have done something about it. As stated above Mr Grant said that he used the safety cage every day at Dingwall and although the bay was used as a store you could still get access to the safety cage through the outside door.

[40] Mr Dow was not a perfect witness. He gratuitously introduced into his evidence the fact that one of the Pursuer's witnesses had "a drink problem". He was vague or incorrect about some details of the organisation and layout of the Dingwall premises. In some respects his evidence was glib, asserting as fact what he supposed rather than what he knew to be the case. For example, he thought that the safety cage was in bay number three whereas it was in bay number four at the Dingwall branch (one of fifteen or so branches within Mr Dow's area); he said that Messrs Currie and Grant had been inducted by the Pursuer when they joined the Dingwall branch - which was a reasonable supposition since the Pursuer was the manager and I suspect should have been in charge of inductions - whereas in fact their induction had been done by Joanne in the office; and he asserted that Arthur Fraser did not have his City & Guilds in commercial tyre fitting whereas Mr Fraser apparently did. My impression was that Mr Dow's errors rather confirmed that the focus of his attention when he visited Dingwall was on "the profit and loss", as opposed to the health and safety side. This seems to have been the perception at the branch too, accepting the evidence of the foreman Arthur Fraser, that the tidy-up for the periodic visits of the health and safety officer would have included ensuring specifically that the safety cage was clear: if it had been known that Tom Dow was due to visit there was just a general tidy-up.

[41] To find the Pursuer's case proved I would have to accept that, in spite of his expressed concern for his own safety, in spite of the email alert about the Auchinlea Tyres fatality two years earlier and the resulting prosecution, and in spite of the commercial incentive to implement good health and safety practice, Mr Dow was knowingly indifferent to the failure to use the tyre safety cage at the Dingwall branch. I find this difficult to accept.

[42] The Pursuer's case also requires that I believe Mr Dow to have been capable of dismissing the Pursuer, an employee of 23 years whose personal qualities Mr Dow professed to value, for conduct that Mr Dow was well aware of and had condoned. I do not believe that of Mr Dow. I am satisfied that the Pursuer did not make the point about condonation at either the disciplinary hearing or the appeal hearing when he was facing dismissal. The Pursuer might easily have said, were it the case, that he had always inflated truck tyres without using the safety cage and that Mr Dow was well aware of the fact: but he did not say that. The Pursuer's evidence was: "it never came into my head".

[43] The Pursuer struck me as a forthright individual well able to speak up for himself, very much his own man, even "a law unto himself". (He was described by Mr Dow as "a one off" and "honest, loyal and a hard worker".) The Pursuer's failure to speak up about the matter when he was facing dismissal in my view significantly weakens the effect of his evidence given in Court. In Court, of course, the Pursuer contended that Mr Dow was aware of the Pursuer's invariable practice of not using the safety cage.

[44] There was some divergence as to how often Mr Dow visited the Dingwall branch. The Pursuer said that Mr Dow visited "once a month for a couple of hours", or "eight times a year minimum", sometimes letting the Pursuer know in advance, sometimes he would "just pop in". Mr Dow stated that he visited five times a year, less often than once every eight weeks. The visits lasted typically for an hour and he spent half of the time in the office. He would walk round the premises on his own. He would stop and talk to the men for a minute or two. The men would not have carried on working. Having regard to all the evidence I conclude that Mr Dow visited more than five times a year but not necessarily as often as once a month on average; and that, though the matter was disputed, he had probably been at the branch on one occasion before the accident for several days, probably less than a week, between 2006 and 2008. (There seems to have been a period in 2006 when the Pursuer was relieved of his managerial duties.)

[45] In submissions Mr Campbell QC said that if the Pursuer's evidence were unsupported it might be difficult to accept that there was lack of enforcement (by higher management) of the safety cage system at the Dingwall branch. I agree. Three witnesses were led to support the Pursuer. James McCall, Stuart Ross and Arthur Fraser. My assessment is that the evidence from these witnesses was not, taken with the Pursuer's own evidence, of sufficient cogency to make the Pursuer's case. James McCall (47) worked as a mechanic and tyre fitter at the Dingwall branch off and on for about six years till 2006. He reckoned that he worked for the Defenders for about one-and-a-half years. He said that Tom Dow would visit once a month on average and would spend five or ten minutes talking with the witness in passing "before going in to the office again". Mr McCall's primary job was as a mechanic fitting brakes and exhausts. He thought he fitted between two and four pairs of truck tyres a day. Sometimes he would fit the tyres on the vehicles outside and sometimes he would take the wheels into bay number two. With articulated vehicles some drive wheels on the tractor units and most trailer wheels could be fitted with tyres on the vehicle. With loose wheels, unless there was cause for concern he would not use the tyre cage.

[46] He thought Mr Dow would probably have seen him blowing up lorry tyres as normal i.e. not using the safety cage - he remembered one specific occasion when Mr Dow stood beside him while he was in bay number two, blowing up a lorry tyre after a puncture repair, without making a comment. He wouldn't disagree if Mr Dow denied that he, Mr Dow, knew the tyre was being inflated to working pressure at that stage. He honestly didn't know if Mr Dow knew. Mr Dow might have thought that the tyre was being deflated. Mr Dow wouldn't know what the pressure was because of the small window on pressure gauge. (Mr Dow made the same point about the small window on the pressure gauge when he came to give evidence.)

[47] Stuart Ross (29) was employed by the Defenders at the Dingwall branch from 2006 to 2008. He thought he would have fitted between five and seven lorry tyres a day. He would change tyres on the lorry or beside the lorry outside. If it was raining he might bring the wheel into bay number two. No one ever enforced the use of the tyre cage. If he had been told to use the cage he would have done so. He did not always see Mr Dow when Mr Dow was visiting. He thought that Mr Dow would definitely have seen him inflating loose lorry tyres to working pressure without using the safety cage though he could not recall a specific occasion. At the same time he appeared to concede that if Mr Dow said he had not seen such an event, that would be true.

[48] Arthur Fraser (49) had worked at the Dingwall branch for 31 years. At the material time he was the supervisor or foreman. I formed the impression that he had had a number a number of sickness absences before the accident. At the time of the accident he was on sick leave for a period of six weeks. He went off sick finally on the last day of 2009 and, feeling under some pressure, resigned with three months pay on 30 April 2010. When at work he worked mainly in the office. He helped out with tyre fitting when the fitters were busy. I noted him as saying "that was for the last two or three years". He did not change tyres on the vehicles but detached the wheels and took the assemblies into bay number two. Mr Fraser knew that the safety cage should have been used for solid-wheel assemblies but he did not use it. Mr Fraser said that Tom Dow would have seen him, Arthur Fraser, working on commercial tyres six or seven times a year without using the safety cage. Mr Dow had been standing beside him when he had been inflating tyres out of the cage. He could not give an exact date. He thought it happened in 2008.

[49] Mr Campbell QC for the Pursuer asked me to accept that there was no dissembling on Mr Fraser's part, that he was a "plodding" but honest witness. Mr Clarke QC for the Defenders suggested that Mr Fraser did not understand the difference between direct observation and inference. Mr Fraser did not strike me as untruthful. I did have the impression of a degree of resentment on his part at the circumstances in which he lost his own job, at the fact that new staff had been brought in and towards the new staff as individuals, and at the dismissal of the Pursuer. If Tom Dow visited eight times a year - the Pursuer's lower estimate - I think it unlikely that during almost all of these visits Mr Fraser was in the workshop rather than in the office, or, if he was in the workshop, that he was working on commercial tyres. I do not entirely accept Mr Dow's testimony that Arthur Fraser had no involvement with commercial tyre fitting or was involved "only once in a blue moon": but Mr Dow's perception is entitled to a degree of credit. Weighing all the evidence, I conclude that Mr Fraser was not reliable in that he exaggerated the extent to which he was involved in commercial tyre fitting; and agreeing with Mr Clarke QC, in that Mr Fraser was prone to leap to conclusions as to what Mr Dow might have understood from seeing activity in bay number two in passing.

[50] Dingwall is a relatively small branch. When Arthur Fraser was off sick it seems that the Pursuer and Stuart Ross coped with the work. The branch was only just "washing its face" according to Mr Dow. The bulk of the tyre work was for light vehicles. I have no reason to disbelieve Mr Dow when he said that most of the commercial fitting was done away from the premises. The impression I formed from the whole evidence was that the Pursuer spent most of his time away from the depot doing work at customers' premises or attending to breakdowns. As regards work at the depot, use of the safety cage was relevant only for loose assemblies. It was not relevant when tyres were being inflated on the vehicles as described, for example, by the witnesses McCall and Ross. What is relevant is whether Mr Dow was aware that commercial tyres on loose assemblies were being inflated beyond, say, 25 psi and up to working pressure in bay number two. It is clearly not enough for the Pursuer's case to show that Mr Dow knew that loose commercial assemblies were being worked on in bay number two and subject to initial pressurisation there.

[51] When Martin Grant joined the Defenders on 5 March 2009 the Pursuer was absent on suspension (for another matter, undisclosed). Mr Grant overlapped with the Pursuer at work for, he estimated, ten to eighteen days before the accident. He didn't see much of the Pursuer who was always out in his van. His evidence was that he could not say whether or not the Pursuer used the safety cage for commercial tyres. He was not aware that the Pursuer did not use the cage. There was an occasion when the witness, the Pursuer and Mr Currie were working together on a set of solid rims: but on that occasion Mr Currie was inflating the tyres; and the safety cage was used.

[52] On the day of the accident Mr Grant was working in bay number two alongside the Pursuer. He was aware that the Pursuer was inflating a tyre at some point but gave the clear impression that he was not aware that the Pursuer was inflating the tyre to working pressure. He said: "If you see someone inflating a tyre you don't know what pressure they're at." Of the accident he said: "He maybe intended to put it in the safety cage but it must have been above 10 psi." Mr Grant was well aware of the risk involved and that an exploding commercial assembly at high pressure could kill someone.

[53] Mr Grant's evidence was unchallenged; and I found him to be a credible and reliable witness. I found his evidence persuasive to the effect that an onlooker might not be aware that the safety-cage system was being flouted, particularly an onlooker who assumed that the system was in operation. Mr Dow was not questioned as to whether or not he assumed that the safety-cage system was operational: but I think it is a fair inference that he did make that assumption and that he was entitled to do so. The Pursuer was not questioned as to whether he practised deception on the Defenders: but I think it a fair inference that some intention to create a false impression was involved. The Pursuer himself frankly volunteered that he had lied when he signed the health and safety documentation; and I cannot see any purpose in the Pursuer organising a tidy‑up of the safety cage in advance of the health and safety officer's visit unless it was to help persuade the health and safety officer to tick item 6.14 "Safety Cage" on the health and safety audit checklist to denote "secured, accessible, in use". In the result I find that the Pursuer has not established to my satisfaction that the Defenders in the person of Mr Dow were aware, and tacitly signalled their acceptance of the fact that the safety-cage system was not being operated at the Dingwall branch. Accordingly I conclude that the Pursuer's accident was not caused or materially contributed to by the fault of the Defenders.

Contributory negligence

[54] The issue of contributory negligence does not arise on the facts as I have found them to be: but since I was addressed on the matter I shall say something about the issue on a hypothetical basis. In the event of a finding of shared fault Mr Campbell QC for the Pursuer contended for a contribution by the Pursuer of less than 50 per cent. Senior Counsel argued that this was appropriate where there was a culture of ignoring safety "cascading from the top down". Senior Counsel submitted that the Pursuer was clearly not suited to be a manager. The authorities cited in relation to employers' negligence for failing to enforce a safe system were D M Walker, The Law of Delict in Scotland, 2^nd edn, vol II, 571-573; General Cleaning Contractors Ltd v Christmas [1953] AC 180; McGregor v AAH Pharmaceuticals Ltd 1996 SLT 1161]. Mr Clarke QC for the Defenders contended for a contribution by the Pursuer of 80 per cent on the basis that the Pursuer was an experienced manager in charge of implementing the system, because he chose not to do so thinking that he knew better and because he had used deliberate deception. Counsel submitted that McGregor was unhelpful since that case concerned an ordinary employee who did not have a management role.

[55] The first point to be made is that the employers' duty at common law is an application of the neighbourhood principle to show reasonable care for individuals [Walker, Delict, 572]. It is not the purpose of the common law, although it may be an effect, to realise a policy objective of "encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers" in general [cf. "Framework Directive", Council Directive 89/391/EEC, recital]. At common law a finding of more than 50 per cent contributory negligence is not out of the question.

[56] The second point is that in the present case the employee does not claim that he was somehow induced to expose himself to risk by his employers' failure. The employee in this case, the Pursuer, had consulted his own judgement and made up his own mind that it was not worth his while to take the precautions that his employers, the Defenders, had instructed him to take for his own safety. A degree of deception was employed to cause the Defenders to believe that their health and safety system was being operated. Given that the Pursuer was the individual at the branch who was responsible for implementing the Defenders health and safety system, I take the view that, were fault to be shared, the Pursuer's contribution would in all justice require to be 80 per cent as contended for by Defenders' Counsel.

Damages

[57] The Pursuer has a claim for solatium, services and loss of employability. The evidence in relation to these matters was essentially unchallenged. Counsel for the Pursuer founded on the independent medical report of Mr David Finlayson FRCS, consultant orthopaedic surgeon, dated 20 September 2010, the report having been agreed. The surgeon examined the Pursuer almost eighteen months after the accident. The surgeon had a copy of the General Practitioner records which evidenced the Pursuer's hospital attendance on 17 April 2009 and for a review appointment on 20 April 2009. The surgeon described permanent soft tissue swelling on the inside of the left knee, with which the Pursuer was coping. He also considered that there had been soft tissue injury to the left ankle with lingering proprioceptive impairment. He thought that function could be improved by a course of physiotherapy. He noted that the Pursuer took analgesia for a previous, unrelated shoulder injury but not for the leg injury. He was of the view that the Pursuer would be able to continue at work until the normal retirement age of 65.

[58] The Pursuer explained that his leg was now not so much sore as uncomfortable: it seized up if he sat for a long time in the van (in the course of his work) or watching television and "there is an ache to it" mostly when he was not using it. He had not lost power in his leg. The Pursuer did not believe in doctors and had worked through the pain barrier in the aftermath of the accident. Mrs Sutherland said that her husband did not complain.

[59] As for services, after the accident the Pursuer said that his wife helped out with "bits and pieces" like walking upstairs behind him in case he should fall and pulling out a chair for him to sit down. She helped out with the garden for a bit which she never did before. Mrs Sutherland had a job at Tesco at weekends and the Pursuer did the housework at weekends but he stopped doing that for a couple of months after the accident. Mrs Sutherland said that she helped the Pursuer going upstairs and going to the toilet for about a week after the accident. For about one or two weeks after the accident the Pursuer ceased to follow his usual routine of making breakfast and a late night drink. He stopped cleaning the house at weekends for a few weeks. Mrs Sutherland helped a little bit in the garden after the accident. The Pursuer did not have the same interest in his garden as he used to. The Pursuer did not do so much in and around the house as he used to.

[60] Within weeks of his dismissal the Pursuer was working again. He found a job as a driver/ labourer with John Hood & Son, monumental masons, Dingwall, through the owner, Stuart Bain, his best friend married to his cousin. He could have got another job as a tyre fitter but he would not have got a job as a manager; and a tyre fitter's wages would not have been better than the wages at Hoods. It was not by reason of his injuries that he was not working as a tyre fitter. Mr and Mrs Sutherland had a mortgage and the Pursuer "hopefully would work for a few years yet".

[61] Senior Counsel for the Pursuer proposed an award of £8,000 for solatium under reference to the Judicial Studies Board Guidelines for England & Wales (September 2010) (M) Knee Injuries, Moderate, (ii). Senior Counsel for the Defenders proposed £4,500. In my judgement an appropriate figure would be £5,500 with interest of £464 being four per cent a year on three quarters of the amount from the date of the accident, giving a total of £5,964 for solatium with interest. An appropriate figure for necessary and personal services inclusive of interest would be £300. Senior Counsel for the Pursuer proposed an award of six months net earnings, about £6,000 in total, for loss of employability/ future loss of earnings on the basis of the agreed earnings data. I find insufficient evidence to support an award under this head. Accordingly had I found for the Pursuer I would have assessed damages at £6,264 inclusive of interest to date on a full liability basis.

Conclusion

[62] In the result I shall assoilzie the Defenders from the First Conclusion of the Summons and reserve all outstanding questions of expenses.