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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bryce v McKirdy [1998] ScotCS 116 (30 December 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/116.html Cite as: [1998] ScotCS 116

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Liability

The pursuer is a time-served joiner who is aged 44. On 18 January 1993 he was employed as a site foreman or agent by A. Johnston Builders Limited at Collums Hill Street, Rothesay, Isle of Bute. He had been so employed since September or October 1992. The work he was supervising involved the renovation of flats in that street. As a consequence, one side of the road and the pavement were blocked off for some distance by scaffolding, a mechanical hoist, portacabins and other ancillary equipment. The carriageway of the road at this point was restricted to one lane, but there was no formal regulation of the traffic which continued to pass to and fro on the street. Nor was there any demarcation on the road, as for example by the placing of cones, between the works being carried out on the buildings and the traffic which was on the road. The placing of cones, or the like, would have been the pursuer's responsibility as site foreman.

Shortly before midday on 18 January 1993 the pursuer was standing on the roadway opposite a compressor which a mechanic, named Alan Pendreigh, had just re-filled with fuel. Robert Zimmerman, a fellow employee, who had delivered the fuel, stood alongside the pursuer but a few feet away to his right. Both stood facing generally in towards the building works at about the position taken up by a lady carrying shopping bags in the second photograph in No.15/1 of process. The stance which the pursuer adopted was similar to the one taken up by the workman in the helmet in the same photograph. (These photographs were taken by the pursuer's former wife a few days after the accident). As the pursuer said in evidence, he was at the time engrossed by what was happening to the compressor. Mr Zimmerman then made to pass in front of the pursuer, and to allow him to do so, the pursuer stepped backwards. Unfortunately, unknown to him, a car was proceeding down the road at the same time, and he and the car came into collision as a result of which the pursuer sustained a serious fracture of his left ankle. The car was being driven by the defender down the street, i.e. towards the photographer in the photograph to which I have just referred. The defender, who is a 35 year old auxiliary nurse, had shortly before driven up the street. She was well aware of the building works at that point in the street. After the collision the defender was able to bring her car to a halt within ten feet or so. I take that distance from the defender's estimate, together with the estimates made by Mr Zimmerman and Mr Pendreigh.

The pursuer avers on Record (at p.6C-D) that he took a step backwards to allow Mr Zimmerman to pass him. His positioning placed him in plain view of the oncoming traffic. The weather was dry and the visibility was good. Suddenly, and without warning, he was struck by the front of the defender's car which was being driven too close to him and at an excessive speed. In his evidence the pursuer thought that the car hit his leg directly, spinning him round and on to the road surface. The only witness to give evidence in support of this version was Mr Zimmerman who said, at least at one point in his evidence, that his recollection was that the pursuer stepped in front of the car. He explained, however, that he would say that, "as a figure of speech". If asked which part of the car hit the pursuer he would have said that he did not know. P.C. Quinn, who investigated the accident on the day it occurred, gave evidence that Mr Zimmerman told him that the pursuer had stepped backwards from behind a compressor into the side of the defender's car. Mr Quinn had also been given the same account as Mr Zimmerman gave in court, and so he pressed him as to what he meant, especially as the only damage to the car was to the off-side wing mirror. He was certain that Mr Zimmerman said that the pursuer stepped backwards into the side of the defender's car. I should add that Mr Zimmerman conceded in evidence that the most accurate account he gave would have been the first one he gave, namely to the police officer.

Mr Pendreigh, who was some distance away, heard the mirror of the car breaking and the impact of the pursuer falling onto the ground. P.C. Quinn said that the only damage to the car was to the wing mirror. If the front of the car had struck the pursuer, he would have expected from his experience of previous road traffic accidents to find evidence of damage to the front, the bonnet and possibly also the roof of the car. There was no such damage. The pursuer sustained a tri-malleolar Potts fracture of his left ankle. Classically that was caused, according to both consultant orthopaedic surgeons, by the foot being in a fixed position and the body rotating. This would most likely occur when the pursuer's left foot struck the ground as his body was rotating. Lastly, the defender was clear in her evidence that she had almost passed the pursuer when he stepped backwards and struck the wing mirror of the car. He had, in short, stepped backwards into her car as she passed behind him.

I have no doubt that the defender's account of how the accident occurred is to be preferred. (That account, I may say, is to be found in the averments at p.8A-B of the Record). It is supported by the fact that the only damage to the car was to the wing mirror. I accept P.C. Quinn's evidence that if the pursuer had been struck by the front of the car there would have damage elsewhere to the car, as I have already narrated. In my view what happened was that the pursuer, as he stepped backwards, was caught by the wing mirror of the car, probably only by his clothing since he had no other signs of injury to his body. His body was then spun round, and he sustained the serious injury to his ankle when his left foot struck the road surface as the rest of his body rotated.

The defender's counsel submitted that, if that is how the accident happened, the pursuer had not proved his case on Record. No motion was made at the Bar to amend the pursuer's case. Perhaps that is hardly surprising in view of the fact it was only by a very recent Minute of Amendment that the account of the accident at p.6C-D was given in the pleadings. The question is, however, whether that is an end of the pursuer's case. I do not think that it is. The defender said in her evidence that as she drove back down the street at a speed, I may say, which she estimated was between 10 and 20mph, she saw ahead of her two men standing on the road with their backs to her line of travel. They were looking towards to the building works and away from the road. It occurred to her that if they stepped backwards they would be in her path. She realised that pedestrians could be careless. She kept close into her nearside as she passed them: but on her approach towards them she did not sound her horn to warn them. If she kept close into her nearside, as I accept she did, she was still passing very close to the two men. The pursuer was, after all, only one step away from the car as Mrs McColl, the pursuer's counsel, expressed it. I also accept the defender's evidence of her speed for which there was ample support from the evidence of the distance within which she stopped after collision. The Highway Code was lodged as a production. Allowing for thinking time it suggests a figure of 40 feet as a stopping distance for a vehicle travelling at 20mph. Indeed, I should say that in all respects I found the defender a careful and reliable witness, and I had no hesitation in accepting her evidence, including her evidence that when she spoke to the pursuer as he lay injured in the road, he said that he was sorry and that it was his fault.

I do not, however, think that it was entirely his own fault. Given what the defender said she anticipated might happen, I am of opinion that she should have sounded her horn to warn the pursuer (and presumably Mr Zimmerman also) of her approach towards them. Had she done so, I think that it is unlikely that the accident would have happened. The pursuer in his averments of fault makes an appropriate averment about the sounding of a horn, but curiously avers this in the alternative. I have to say that I cannot make much sense of the word "alternatively" in the context at p.8E of the Closed Record. Nor do I understand why the sounding of the horn is averred to be in the alternative to slowing down as she approached. It seems to me that all these averments, as is customary in the pleading of duties of care in a road traffic accident case, are cumulative. I do not, therefore, agree with Mr Liddle that these particular duties of care must be read precisely as they have been averred, namely in the alternative, and therefore that the fulfilment of any one would result in the defender being absolved. It is obvious, however, that these duties of care have been carelessly pleaded, but I do not think that the pursuer should be prejudiced by the lack of skill on the part of the pleader. It was not suggested that the conduct of the defender's case would have been different if the pursuer's averments with regard to the duties of care were read and understood as I have suggested.

I turn now to deal with the question of contributory negligence. The pursuer frankly said that he did not see the defender's car. He was, he thought, probably too engrossed in what was happening to the compressor. I think that it is reasonable to infer from all the circumstances that he momentarily forgot where he was, namely the centre of a road which carried traffic. He was, further, familiar with the location, having worked there since September 1992. There is no doubt that he failed to take reasonable care to keep a proper lookout for traffic on the street. To step backwards and into the defender's car was a major contribution to his accident. I assess him to be 75% to blame for that accident.

Following the accident the pursuer was taken to the local accident unit at The Victoria Hospital, Rothesay, where diagnosis of a "Potts 3" fracture was made. The fracture dislocation was reduced before he was transferred to Inverclyde Royal Hospital. There he underwent an operation in the form of an open reduction and internal fixation of the left ankle fracture dislocation. Screws were inserted to fix the fracture and a plaster back slab was applied. His continued care was transferred to Mr Sharma, then a consultant orthopaedic surgeon at Stonehouse Hospital in Lanarkshire, since that hospital was convenient to where the pursuer lived at the time. Because the pursuer complained of pain in the ankle over the lateral and medial aspects and also over the screw-heads, the screws were removed by operation on 20 June 1994. On 15 August 1995 he was discharged from further attendance at the hospital and the clinical note made was: "Recovered well". In light of his findings and indeed reading of the medical notes, Mr Gregori, a consultant orthopaedic surgeon who was led on behalf of the pursuer, observed that that note reflected the inexperience of the person who made it.

The fact is that, since his discharge, the pursuer continued to complain of ankle pain which necessitated a substantial number of visits to his general practitioner, who also gave evidence at the proof. Current x-rays demonstrate that osteoarthritis has developed within the left ankle joint. That, according to Mr Gregori, can be demonstrated clinically as well. Mr Hamilton, a recently retired consultant orthopaedic surgeon, who gave evidence for the defenders, was of opinion that, following upon his clinical examination of the pursuer, the pursuer had an excellent range of movement in all directions in his left ankle. This did not accord with the findings of Mr Gregori, who found that all movements of the left ankle produced pain, both in extremes of passive and active movements. These two orthopaedic surgeons were once teacher and pupil in their relationship and one inspired the other to enter this branch of surgery. Various explanations were offered in evidence for the divergence of their opinions. I do not think that I need to enter into that dispute, especially as their examination techniques were not properly and scientifically compared. The difference between them, however, bears upon the question, when was the pursuer fit to resume some form of work in his trade as a joiner? There is even dispute about what he is capable of doing within that trade. Mr Hamilton thought that he was fit for restricted work in construction, joiner or prefabrication work. Mr Gregori, whose evidence I preferred because of his own "hands on" experience in directing the building of his own house, thought that he was limited to work on level ground and that he could venture up ladders only with difficulty. Even some of that work would be more difficult to do, especially if it involved kneeling.

Mr Hamilton thought that he was fit for restricted work after about eighteen months at the latest. Mr Gregori said that he was unable to work as a direct result of the accident from 18 January 1993 to July 1998. The pursuer's general practitioner, Dr Dobbie, who saw the pursuer throughout this period, thought that he could not have resumed work until about mid-1995 - that is, more than two years after the accident. I think that the general practitioner's opinion is to be preferred. He and of course his partners, after all, saw the pursuer regularly and were in the best position to provide an opinion about the pursuer's fitness. The pursuer himself said that with hindsight he could have tried to get employment sooner that he did, although he still did not feel fit even for the work he now did. It may be that he is in the relatively small number (5%) of those who suffer from post traumatic osteoarthritis who will require further operative treatment, such as an arthrodesis.

At all events, the pursuer was not employed after the accident until about July 1998 when he persuaded a near neighbour, who runs a joinery business, to take him on as a joiner. As an employee of Jim Shearer Joiners he works on average between 15 and 20 hours per week for which he receives a maximum of £40. Mr Shearer gave evidence that the pursuer had his problems, especially in bending and doing floor work. On three of four occasions at least, he phoned up and said he did not feel fit to attend work. Mr Shearer did not know if the pursuer was capable of working more, even assuming that he had more work to offer him. If he were fit, the pursuer would be looking for about £180 gross per week. There was work available fitting kitchens, which the pursuer wanted to do. But he, Mr Shearer, had not installed very many, and the pursuer could not do the work unassisted.

The pursuer produced a C.V. which had been prepared professionally for him and updated to February 1993, a month after the accident. The most charitable thing that can be said about this document is that it is not always accurate, nor is it reliable. It omits altogether a period of about eleven months shortly before the pursuer was engaged by A. Johnston Builders Limited, when he was off work with a bad back. It was not the first time that his back had given him trouble and that he had lost work by reason of that condition. He also suffered from chondromalacia patellae bilaterally between 1974 and 1980 and suffered other minor injuries, including a minor head injury in 1977, a cervical whip-lash in 1978 and a further whip-lash injury and abrasions and contusions in a minor road traffic accident in 1985. I should add that the pursuer was engaged by A. Johnston Builders Ltd, only for the work in Rothesay. There was no undertaking that he would continue to be employed by that company thereafter, although I accept that he would have sought work through an agency.

All of this medical history persuades me of a number of things. First, the pursuer by mid-1995 ought to have been attempting to get some employment, however restricted, as a joiner. Up to that point he lost wages at the rate he had been earning at the time of the accident. Secondly, he is restricted in what he is physically able to do as a joiner by reason of his ankle injury. He is unable and will continue to be unable to carry out the type of work for which he was employed at the time of his accident, namely the job of a site foreman. Thirdly, there was always a risk in any event that his back problems might lead to periods off work. Fourthly, there is no doubt that, whether or not he has the degree of stiffness in his left ankle joint that Mr Gregori said he had, he suffers considerable pain in the ankle. At or about the time of the accident he played golf with a handicap of 6, and it must be very frustrating for him never to be able to play golf again. I accept also that the pursuer would like to be fit to work a full working day and week. No one is suggesting that he is malingering or exaggerating his symptoms.

Parties were agreed than an appropriate award of solatium was £11,000 and that interest thereon, in terms of past and future, was £1,739. There was no agreement, however, about what the pursuer was receiving net of tax at the time of the accident. Wage slips had been provided but it was said that it was not clear how far these included expenses for travel to the Island of Bute. In evidence, the pursuer thought that he earned an annual salary of £14,000 gross. I think that the safest and most reliable course is to accept that evidence and deduct from that figure one-third in order to reach an approximate net figure. That figure, I calculate is £9,334. If the pursuer was fit to obtain some form of joinery work in mid-1995, his net loss of wages in that period is £23,335. Interest on that sum to date, according to my assessment, is £3,267. I am of clear opinion that, given the uncertainties in the pursuer's employment history, past and future, the correct way in which to compensate him as a 44 year old for what he has lost in the labour market since mid-1995, is to award him a lump sum to reflect his loss of employability in the labour market. If, very roughly, he earned £9,400 net in 1993/4; if he will be able to continue to earn wages as a joiner, albeit in a restricted way; and if he would have had periods off work by reason of problems with his back and, probably, also the osteoarthritis in his ankle, I am of opinion that the sum the pursuer should receive to reflect his loss of employability is £25,000. If one adds together all these figures, the total sum achieved is £64,341. I have already assessed the pursuer's contributory negligence at 75%. The total figure which he is therefore entitled to receive from the defender is £16,085.

I will, therefore, uphold the first plea-in-law for the pursuer and the sixth plea-in-law for the defender, and I will grant decree in favour of the pursuer for the sum of £16,085, being 25% of the total sum of £64,341, with interest thereon at the rate of 8% per annum until payment.