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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morrison v Safeway Stores Plc [1999] ScotCS 21 (15 January 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/21.html Cite as: [1999] ScotCS 21

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In 1992 the pursuer was aged 32 years. Apart from a period of about two years in the mid-80s when he was working elsewhere in a sawmill and then as a heavy goods vehicle driver he had worked as an employee of the defenders since about 1980. For the first year or so he was a part-time meat packer and then from late 1981 or early 1982 he was a night shift packer in the defenders' supermarkets, first in Paisley Road West, Paisley, then in Johnstone for a few months and latterly, following a return to Paisley Road West for a few weeks, in Renfrew. In about 1987, not long before he was transferred to Johnstone, he was promoted to stand-in night shift foreman and when he was at Johnstone he was further promoted to first night shift foreman (there were two). In Renfrew, where he moved in late 1989, he was an unofficial night shift manager. These various promotions gave him more responsibility and as night shift manager he was in charge of the night shift crew or team of packers but the nature of his job did not vary. The night shift ran from 9.00pm to 8.00am and the main task of the night shift crew was to re-pack the shelves

with items for purchase in the supermarket. Earlier in the day the new stocks had been delivered from a depot elsewhere to a store at the back of the supermarket and it was the function of the twilight shift, the shift before the night shift, to put the stocks on pallets and bring them from the back store to the supermarket itself. If the twilight shift had not had time to complete that job, then the night shift would complete it, but generally it was not part of the latter's task. From the pallets the night shift took the various goods either by hand, or by trolley if there was one available, to the particular part of the store where they were to be displayed. They were deposited - or "spotted" as it was described - on the floor of the aisles adjacent to the shelves where they were to be stacked. At Renfrew the supermarket contained nine aisles with two sides of shelves to each aisle. There was also a front and back aisle which ran at 90^o to the other aisles and which also had shelves. The aisles were some 40-50 feet long. In Johnstone there was roughly the same number of aisles but they were longer. In Paisley Road West there was roughly the same number of aisles but they were arranged slightly differently owing to the shape of the premises. Usually there were six shelves on each side of an aisle but sometimes less than that if the product was of a size which required greater space. The shelves were adjustable, but the bottom one was some 3 inches above the ground and for the pursuer, who was some 5 feet 11 inches tall, the top shelf was at about eye-level. The lower shelves were devoted to heavy items and faster selling products. They were also rather deeper than the upper shelves - up to about 31/2 feet deep as opposed to about 21/2 feet deep - and could therefore hold more. This shelf arrangement was the same in all three supermarkets. The goods with which the night shift crew were concerned did not usually include perishables but were confined to packets, tins, cans and bottles. These were usually in cardboard trays wrapped in heavy cellophane - for example, trays of a dozen cans or bottles. These trays were then cut open by the crew and the individual items packed on the appropriate shelves. The precise method of working was left to the individuals concerned. The defenders neither prescribed nor proscribed any particular method. The way the pursuer typically did it throughout his years on night shift with the defenders was as follows. For items that were to go on the upper shelves there was a table known as a stocking table and the trays were put on that and cut open there. For the items that were to go on the lower shelves, however, i.e. the bottom two shelves, this exercise was carried out on the floor with the pursuer kneeling on both knees. He got down on his left knee first and then took his full weight - and the weight of any goods he had to lift in order to stack them on the shelves - evenly on both knees. From that position he put the items on the lower shelves. That involved a certain amount of twisting while he was on his knees. He packed the lower shelves first, having "spotted" the goods that were to go there nearer to the shelves. That would then give him access to the goods which were to go on the upper shelves. These had earlier been "spotted" in the centre of the aisles and could then be transferred to the stocking table, cut open and stacked on the upper shelves. The shelves were divided into bays some 4 feet wide and it was customary for the pursuer to pack 2-3 bays at a time on the lower shelves before going back to pack the upper shelves. Sometimes he would pack the lower shelves for the entire length of the aisle, while another member of the crew would follow packing the upper shelves. While packing the lower shelves he was usually continuously on his knees. The time that it took to pack the shelves varied, of course, d

The defenders' requirement was that 45 trays should be cut open and packed per hour. It was hard work. A typical night shift's work would involve the cutting open and packing of some 1,800 cases. Typically, in 1992, there were five full-time workers, including the pursuer, and two part-timers. If it was to be a particularly busy night, more workers were brought in. That was the position in Renfrew and Paisley Road West. Johnstone was a bigger supermarket and so more people were employed there.

The duties of the night shift in the period between 1981-92 also included some cleaning. Sometimes this involved kneeling; for example, when dirt had collected in or around the base of the shelves, or something had been spilt on the floor which was particularly difficult to remove. This had to be done by means of a scraper. The shelves themselves also sometimes had to be cleaned with a damp cloth, really as part of the replenishing exercise, and for the lower shelves the pursuer did this also on his knees. It is not possible to be precise as to how much time was spent on these cleaning duties, but about 2 hours per week would not be far off the mark as an average. Obviously, though, it would not necessarily be the same period every week.

Sometimes there were what was described as moans by some of the workers about having sore knees, but there were no formal complaints to the defenders; it seemed to be accepted as part of the job. There was also no history of any particular knee problems having been suffered by any of the workers.

What I have described above was the pursuer's method of doing the job. As I have said, the defenders left the method of doing it to the particular individual. At no material stage did they assess how it was being done or how it should be done. In particular they did not assess how long workers spent kneeling, either as a total period during the shift or as periods within the shift. Nor did they give any consideration as to how long the workers should be kneeling at any one time or in total. They did not do any of this because they did not see it as a potential problem. For the same reason they did not give the workers any warning that prolonged kneeling might result in injury, nor did they advise them to report any problems that developed with their knees. In about June 1992 the pursuer, who had had no problem with his knees before then, started to feel an ache in his left knee. It appeared trivial, however, and he continued working. He mentioned it in the passing to the store manager, Paul Keanon, but did no more about it. In particular, he did not make any formal complaint and he sought no medical advice or treatment. On Friday 18 December 1992, however, something more serious happened. The pursuer was working with a colleague, Craig Williams. They were packing the shelves. The pursuer knelt down to pack some carbonated drinks on a lower shelf. He suddenly felt a severe pain in his left knee. He could not straighten it and he could not get up. Craig Williams helped him to his feet and he went through to the canteen. There he sat down and put his left leg up on a table. His left knee was very painful and had started to swell. When Paul Keanon came on duty at about 7.00am for the day shift the pursuer told him what had happened. It was part of his duties anyway as night shift manager to report any problems to the next line manager at the shift changeover. There was an Accident Report book in which all accidents should be recorded. However, the book was kept in a locked cabinet by the personnel manageress and she did not come on duty until 9.00am. By that time the pursuer had left the premises and no record of the incident was entered in the book. After the incident the pursuer agreed to swap shifts with Craig Williams so as to give his knee a few days rest. As a result he did not need to return to duty until the following Tuesday night. In the interim he did not seek any medical help or advice but just rested the knee. He felt fit enough to return to work on the Tuesday night and did so. He started by carrying out his normal duties but found that his knee started to ache, although there was no repetition of the sharp pain he had felt on 18 December. What he then did was to put himself on duties which did not require him to kneel as he had been doing before. By January 1993, however, the pain in his left knee was still there and, indeed, was there all the time. He therefore went to his general practitioner. This was Dr Findlay, who is now deceased. On 13 January Dr Findlay referred him to the Southern General Hospital. The letter of referral stated that the pursuer had for the past few months complained of pain and clicking in the medial joint compartment of the left knee, with tenderness towards the anterior end at the medial joint line. On 8 February 1993 the pursuer saw a Mr Gardner, FRCS, a senior orthopaedic registrar at the Southern General Hospital. Mr Gardner reported to Dr Findlay that the pursuer presented as complaining of medial sided left knee pain which had bothered him for approximately a year. The pursuer was said not to recall any specific injury to his knee but over recent months had had increasing pain over the medial joint line with occasional swelling and clicking within the joint. It was also recorded that he denied any locking or instability. On examination the pursuer had good quadriceps muscles. There was no evidence of effusion w

During the early part of 1993 the pursuer had continued at work doing the lighter duties that he had put himself on shortly after his return to work in December 1992. He required, of course, to be off work for the arthroscopy itself but he did not take sick leave for that. He had some holiday due, so he took the time off, some six days, as holiday. Shortly thereafter, on 1 April 1993, the pursuer ceased work and he has not worked since. He has, however, been kept on as an employee by the defenders.

The pursuer was discharged from the Southern General Hospital Orthopaedic Clinic on 22 March 1993, but on 1 June 1993 he was re-referred there, complaining of pain, numbness and greater instability in the left knee since the arthroscopy. He was seen by Mr Sherlock, FRCS, consultant orthopaedic surgeon. In his letter of 22 June 1993 to Dr Findlay, Mr Sherlock reported as follows:

His advice to the pursuer was in similar terms. Thereafter the pursuer was put on a course of physiotherapy designed to build up his quadriceps muscles but he found he was unable to do the exercises he was given because they were too painful and he had insufficient mobility. In August 1993 he returned to see Mr Sherlock. As Mr Sherlock put it in a letter of 18 August to Dr Findlay,

Arrangements were accordingly made for the operation and on 8 December 1993 the pursuer was admitted to the Southern General Hospital for it. On admission the house officer recorded the history of the presenting complaint as a two year history of left knee pain which had been very severe for the last eleven months. On the same day the pursuer was seen by Mr Sherlock. He noted that the pursuer had been admitted for a left Elmslie Trilliat tibial tubercle transfer transposition for anterior knee pain. He again explained that the operation he had in mind was not a recognised operation for this condition and that he could not guarantee a good result. Despite this the pursuer was keen to proceed with the operation.

The operation was performed on 13 December 1993. It was performed by Mr Pandis, a registrar, but Mr Sherlock was there supervising and he himself saw the interior of the knee when it was opened up. The operation note was initialled by Mr Sherlock. It records under the heading Indications: "Anterior knee pain secondary to the excessive lateral pressure syndrome". Under the heading Procedure it records inter alia: "Examination of the articular surface showed some minor degenerative changes on the patello-femoral joint with the rest of the knee appearing to be in good condition." It is not said in terms that osteo-arthritis was found. After the operation the pursuer attended for physiotherapy. It was very painful but he was able to manage it. Thereafter he found that although he still had constant pain, it was less severe than before. On intermittent occasions he had severe episodes but these were less frequent than before. He also had more mobility in the leg. To that extent, therefore, there was an improvement. On 5 April 1995 the screw which had been inserted in the pursuer's tibia as part of the operation procedure on 13 December 1993 was removed as it commonly is. This was a straightforward minor operation and had no effect on the overall outcome. The position now is that the pursuer can get about so long as he takes it easily and is in no hurry. He usually takes a stick with him because his leg can become unstable. After a while in one place, standing or sitting, he feels the knee joint tightening and he has to move. His social life has been affected. He used to enjoy going for a drink and playing snooker. He also enjoyed swimming and walking. He can still walk within limitations but he cannot swim because of cramp in his thighs. He can no longer play snooker. He can drive for short distances but for longer distances his wife usually drives. He used to be keen on cooking but that is now limited because it takes much longer. He can still manage his garden. This is mostly grass and he is able to cut the grass. He does it, however, a lot less often than before and it takes longer. He used to do all his home decorating but now his wife does the bits that are higher up because he cannot. He is on medication of two co-proximol four times a day. He was also on two releflex at night time but that was stopped by his general practitioner because it was causing oesophagitis. It is more difficult for him to have a normal sexual life now. He has not worked since 1 April 1993. He is not able to carry out the duties that he used to and there is no possibility of that in the future. After his arthroscopy in March 1993 he had a meeting with Paul Keanon and Lorraine Crumb, the defenders' district personnel manageress. At that meeting Mr Keanon told him not to go back unless he was fit to do the job he was employed to do. That was the only meeting of this kind which has taken place. There has been no talk of another job with the defenders. The pursuer has been in contact with their present personnel manageress, Lillian Morrison. This was in January 1998. She asked him what he could do. He asked what jobs were available. She said that she would get back to him but in fact has not done so.

There was no dispute that the pursuer is now not fit to carry out the work he was, and still is, employed to do by the defenders and he will not be fit to do so in the future. The first major issue between the parties was whether the incident of 18 December 1992 occurred as the pursuer avers in his pleadings. The pursuer himself described the incident in his evidence. He had described it in similar terms to Mr Hullin, FRCS, the consultant orthopaedic surgeon instructed by the defenders, in November 1996. There was no competing account. Having seen and heard the pursuer give his evidence I am satisfied that he was a credible witness and in all material respects a reliable one too. He gave his evidence in a straightforward way and he did not seem to me to be shaken by a searching cross-examination. This is a general view of his evidence as a whole but it applies particularly to this point. He said that when he started to feel an ache in his knee in June 1992 he mentioned it to Paul Keanon, the store manager. He also told him of the incident on 18 December 1992. Indeed, Mr Keanon was the succeeding line manager on that occasion and took over from the pursuer at the end of the night shift. When he came to give evidence Mr Keanon said he did not remember either of these occasions. I accepted the evidence of the pursuer. I am not surprised that Mr Keanon did not remember the incident in June because the pursuer indicated that he mentioned it rather by way of a passing comment. I was rather more surprised that he did not remember the incident in December. It was, of course, six years ago but it was a more definite and serious episode and in light of the subsequent history it might have been expected that he would have remembered it. Indeed, he said himself that if he had been told of it he would have remembered it. The explanation could be that the pursuer is mistaken about this or else that Mr Keanon has in some way blotted the incident from his memory. Having seen and heard the two men give their evidence, however, I think the true situation is that the pursuer did tell Mr Keanon but that the latter has genuinely forgotten about it. The pursuer also accepted that there was no record of the incident in the defenders' Accident Report book but explained that that book was kept in a locked cabinet in the personnel manageress's office and she came on duty only after he had gone home. That explanation was not challenged; indeed, it was confirmed by Craig Williams and by Stewart Williamson, to whom I shall refer again later. In that situation it would have been for Mr Keanon as succeeding line manager to complete the paperwork. Then there was the fact that in none of the medical records was there any mention of an incident on 18 December 1992. The letter of 13 January 1993 from Dr Findlay referring the pursuer to the Southern General Hospital said that the pursuer had for the past few months complained of pain and clicking in the medial joint compartment of the left knee. That is consistent with the pursuer's evidence that the trouble began in about June 1992 but it does not mention any particular incident on 18 December 1992. The letter of 8 February 1993 from Mr Gardner goes further. It says that the pursuer "does not recall any specific injury to his knee, but over recent months he has had increasing pain over the medial joint line with occasional swelling and clicking within the joint". The pursuer explained that in relation to that point his conversation with Mr Gardner had been in the context of an injury sustained in football or in badminton, which he used to play. When he saw the letter he wrote to Mr Gardner pointing that out. Earlier in the letter it is stated that the left knee pain has bothered the pursuer for approximately one year but the pursuer explained that when he wrote to Mr Gardner he also pointed out that that was a mistake and should h

The next important issue of fact was whether the pursuer had proved that he knelt in the course of his work for the periods that he said he did. The pursuer's evidence was that typically during the time he was with the defenders he would spend periods of 10-15 minutes on his knees if he was packing the lower shelves of just 2-3 bays, 25-30 minutes if he was doing the lower shelves of the whole aisle. He thought he would spend a total of 2-21/2 hours in a kneeling position each shift. Craig Williams put the total time spent kneeling at about 2 hours and said that he would spend about 15 minutes at any one time on his knees. These figures may not be exact but he said that they were near enough; it was not a case of kneeling for just a few seconds at any one time. The 15 minute periods were not broken up by standing up and walking around, although on occasions when it was not so busy that might happen. Mr Williams said that he built up a layer of hard skin below his knees. It was sore but he just got on with it or else he asked other workers to swap jobs for a time, just as they did with him. Both men also described the cleaning duties which I mentioned earlier and which required to be done on one's knees.

The defenders also led evidence directed to this point. They first led the evidence of Mr Philip George, an ergonomist employed at the Institute of Occupational Medicine. He had been sent to the defenders' supermarket at Renfrew on Monday 12 October 1998 in order to observe the two men doing the night shift that night and make a video of them. As at the time the pursuer was working there, the night shift ran from 9.00pm to 8.00am and the task was generally the same, namely, to re-pack the shelves with goods. They did not, however, have any cleaning duties at this time. Mr George observed the men at work throughout their shift. He set up a video camera and filmed them at work for part of the time, about an hour in all. He also made notes of what they did and, in particular, recorded with the help of his watch the length of time they spent kneeling or crouching during the shift. These observations were then given to Dr Richard Graveling, the Head of Ergonomics or, as the job is now described, the Head of Human Sciences at the Institute. His report, to which are attached Mr George's findings, is No.29/1 of process. Table 1 is a summary analysis of the time spent kneeling by the two workmen observed by Mr George. The one spent a total of some 46 minutes in the course of the shift, the other only some 28 minutes. The individual periods spent kneeling varied between 2 seconds and rather over 3 minutes. It was accepted that a Monday night is one of the quieter nights of the week but nevertheless the picture presented by these two workers is very different from that painted by the pursuer and Craig Williams. Stewart Williamson is now the defenders' store manager at Kilmarnock. He has been employed by the defenders since 1976 and in the course of his career had worked as a night crew manager, the same job as the pursuer was doing. That was for about six months in 1980 at the Paisley Road West store as part of a management training programme. He had been store manager at Renfrew in about 1990 and 1991. He said that how much kneeling would be required by a member of the night crew would depend on the quantity of goods to be replaced and where they were to go, but he estimated that for the two lower shelves he would have to kneel about 40-50 times for an average of 50 seconds each time. He thought that the total time spent kneeling per shift would be no more than 45 minutes. He said he had never seen a man working the whole aisle on his knees stacking the lower shelves and he had never heard of a man being on his knees for 30 minutes at one time. However, he said that in giving his evidence he was speaking only on the basis of his 1980 experience. He had not worked night shift since then. He agreed that there was no standing instruction as to how the packing should be done. Every night crew manager was free to organise his own system so long as the work was done. The best people to ask how the work was done at any particular time were the people actually doing it, such as, in this case, the pursuer. Mr Williamson confirmed that the night crew used to have some cleaning duties to do which involved some kneeling, but not a significant amount. They no longer had these duties but when they did, it was a question of scraping off a build-up of polish on the floor. However, this would be done only once every six months and would involve each man kneeling for only about half an hour. Nevertheless he did say that when he was packing the lower shelves he normally found a piece of cardboard, perhaps from the last tray, and knelt on that. Otherwise it would have been sore on the knees. He had been shown to do that as part of his training. He regarded it as best practice. Paul Keanon is the defenders' store manager at Erskine. He has been with the defenders or their predecessors since 1978. He succeeded Mr Williamson as store manager at Renfrew in April 1992 and was in that post until 1996 when

I have no reason to doubt the truth of any of this evidence led by the defenders but it does not in my opinion detract from that given on these matters by the pursuer and Craig Williams. The context in which each of the defenders' witnesses gave evidence was a narrow one. None of them had anything other than limited experience of the night shift. Given that, as Mr Williamson said, there was no standing instruction as to how the packing should be done and that every night crew manager was free to organise his own system, it does not seem to me that evidence of what other people did at other times can of itself negative the evidence of the pursuer as to what he did, supported as it is by the evidence of Craig Williams. I have already said that I accepted the evidence of the pursuer and Craig Williams as credible and generally reliable. That included their evidence as to the way they did the work and the time spent kneeling and the evidence of the defenders' witnesses did not persuade me otherwise.

The next, and final, major issue of fact between the parties was whether the pursuer had proved that the prolonged kneeling that he did in the course of his work with the defenders over the years caused or materially contributed to his present condition. I have already narrated that the pursuer started to experience symptoms in about June 1992 when his left knee began to ache. There was then the incident on 18 December 1992. He went to see his general practitioner, Dr Findlay, in January 1993. I have already narrated the medical history thereafter in some detail but it is convenient if for the purposes of this issue of causation I set out the salient points again. Dr Findlay referred the pursuer to the orthopaedic clinic at the Southern General Hospital and in his referral letter of 13 January stated inter alia that the pursuer had been complaining of pain and clicking in the medial compartment of his left knee. On 8 February 1993 Mr Gardner, a senior orthopaedic registrar at the clinic, reported that x-rays obtained that day showed some early degenerative changes of the medial compartment of the pursuer's left knee. There was, however, a question as to whether the pursuer had suffered a meniscus tear - both Dr Findlay and Mr Gardner had found tenderness over the medial joint line of the left knee - and so in order to exclude that and also to assess the state of the articular surface of the knee, Mr Gardner ordered a diagnostic arthroscopy. That took place on 10 March 1993 at the Southern General Hospital and was carried out by Mr McCreath. The operation note reported that examination of the knee under anaesthetic showed no abnormal findings. In particular, the medial compartment looked healthy with good quality articular cartilage and a normal meniscus. The patello-femoral joint was also reported to be in good condition "with only very mild surface wear changes in the medial facet". The evidence of both orthopaedic surgeons who gave evidence was that these were early degenerative changes but were normal for a man of the pursuer's age and often would not give rise to symptoms. No significance was attached to the fact that in his letter written to the pursuer's general practitioner after the operation Mr McCreath, while reporting that the knee joint was "essentially healthy", described these wear changes as "marked". Mr McCreath did not give evidence so we only have what he said in these documents. In the course of the defenders' proof Miss Bain did seek to

have him added to their list of witnesses but I refused this. Mr Sherlock and Mr Hullin had already given their evidence by this time. It seemed to me that it was too late now to call Mr McCreath to explain in more detail what he did find at arthroscopy. Moreover that appeared to be a matter of at least doubtful relevancy.

On 22 March the pursuer was reviewed at the orthopaedic clinic. He reported that his knee felt more uncomfortable since the arthroscopy but it was explained to him that that was often the case and it might take a further few weeks to settle. Mr Gardner reported in his letter of 22 March to Dr Findlay that "he has changes in the patello-femoral joint which we cannot improve. I think his work causes him problems by kneeling a lot". The pursuer continued to have problems with his knee and he was referred back to the Southern General Hospital where on 22 June 1993 he saw Mr Sherlock, consultant orthopaedic surgeon. Mr Sherlock gave evidence for the pursuer. He is a very experienced orthopaedic surgeon. He was appointed consultant orthopaedic surgeon at the Southern General Hospital and the Royal Hospital for Sick Children in Glasgow in 1988. He has had considerable experience in dealing with knee problems, including those of the patello-femoral joint. As it happens, he has patello-femoral joint problems himself and so has a personal interest as well. After seeing the pursuer on 22 June 1993 Mr Sherlock reported to Dr Findlay that he agreed with Mr McCreath that the pursuer's symptoms were "almost entirely patello-femoral with a suggestion of synovitis no doubt associated with the degenerative cartilaginous breakdown product". This, as he explained in his evidence, was a clinical finding and indicated to him a progression of the degenerative changes found at arthroscopy in the patello-femoral joint. He described these as arthritis. He also noted that the pursuer had a mal-aligned patella. To put that in lay terms, the patella did not move up and down in its normal track when the knee was mobilised. The medical term for this is excessive lateral pressure syndrome. This is a not uncommon developmental condition - Mr Sherlock himself has it - but it does not always give rise to symptoms. Mr Sherlock, however, thought that in the pursuer's case it might be contributing to the pain he was suffering. It was known to be associated with an increased incidence of patello-femoral pain. He could do nothing to improve the degenerative changes, as Mr Gardner had said earlier, but by means of an operation he might be able to relieve to some extent the symptoms in so far as they were being contributed to by excessive lateral pressure syndrome. The operation, however, carried a serious risk that so far from improving the situation, it could be exacerbated. Mr Sherlock explained this to the pursuer and advised him in the meantime to undertake physiotherapy in order to build up his quadriceps muscles. These are the major muscles on the anterior aspect of the femur. They help to hold the knee, which is an unstable joint, in position. Strengthening them might have alleviated the pursuer's symptoms. The pursuer tried physiotherapy but found it impossible due to the pain and lack of mobility in his knee. He returned to see Mr Sherlock in August 1993 and, despite being warned again of the risks, decided that he wanted to have the operation. That was an indication that he was pretty desperate. Arrangements were accordingly made for the operation. He was admitted to the Southern General Hospital on 8 December 1993 and was once again warned by Mr Sherlock that there were risks involved in the operation. The pursuer, however, was keen to proceed and on 13 December the operation was carried out. It was carried out by Mr Pandis, a senior registrar, but Mr Sherlock was there and he wrote the operation note. In it he recorded that "examination of the articular surface showed some minor degenerative changes on the patello-femoral joint with the rest of the knee appearing to be in good condition". In evidence he said that he saw these degenerative changes at the time of the operation. Mr Sherlock equiparated these degenerative changes with osteo-arthritis. He said the two were i

There was no dispute that the pursuer was now suffering from osteo-arthritis in the patello-femoral joint of his left knee, and also in the medial tibia-femoral joint (the medial compartment). Mr Sherlock and Mr Hullin, who gave evidence for the defenders, were agreed about that, it was evident on x-rays but Mr Hullin took issue with Mr Sherlock's evidence that the pursuer had osteo-arthritis in his left knee in 1993. Mr Hullin is also an experienced orthopaedic surgeon. He is also a consultant orthopaedic surgeon in the Southern General Hospital, having held his appointment for six years, and his main interest is in knee problems, particularly those caused by cruciate ligamental damage. He has patients with these problems referred to him and indeed Mr Sherlock said that he had referred such patients to him. Mr Hullin, however, never saw the pursuer except for the purpose of making examinations and reports on two occasions for this litigation. At no time did he see inside the pursuer's knee. He agreed that if Mr Sherlock said he had seen osteo-arthritis in the pursuer's knee, he was in no position to contradict that. His evidence as to the pursuer's condition in 1993, therefore, was inevitably based on his interpretation of the hospital records and the view he held as to what amounts to osteo-arthritis. He said that chondromalacia patellae had since 1961 been classified into different categories depending on how advanced it was. This classification was now standard. Only the more severe categories could be classified as osteo-arthritis and what was found in the pursuer's case in 1993 at arthroscopy in March and at operation in December could not be called osteo-arthritis. Any consultant orthopaedic surgeon would know the difference between what was osteo-arthritis on the classified scale and what was not. Nowhere in the records of this period was there a description of anything which amounted to osteo-arthritis. Mr Hullin's view was that the pursuer at this time was suffering from what he called a generic anterior knee pain syndrome. He had earlier been asked what anterior knee pain syndrome was and he explained that it was a common condition in adolescents and young people up to the age of 35, being most common in the 15-20 year age group. It could be caused by chondromalacia or by mal-tracking of the patella or it could be ideopathic. The triggering events for anterior knee pain syndrome were over-use, such as hill-walking or skiing or a trauma directly to the knee cap. He had never had a case of kneeling causing anterior knee pain syndrome. He thought that the pursuer's anterior knee pain was caused by the excess lateral pressure syndrome and that his mild chondromalacia could be attributed to normal changes for a man of his age.

A considerable part of the evidence from these experts was directed at this point but I must confess that at the end of the day I did not find it of much assistance in deciding the question of causation which arose in this case. As I have indicated, Mr Hullin's evidence on the point stemmed from the grading or classification of chondromalacia patellae that he described. That classification, however, was never put as such to Mr Sherlock, and Mr Hullin himself said that despite the classification being, as he said, standard for so long there was still much confusion in the profession in the use of terms such as osteo-arthritis and degenerative changes. That may be so to an extent - and it is perhaps underlined by reference to the article No.30/3 of process to which I shall refer again later - and it may be important in certain circumstances but Mr Sherlock was in no doubt that in this case the terms "osteo-arthritis" and "degenerative changes" were interchangeable. That evidence came as no surprise because experience in this court would suggest that they are frequently used interchangeably by orthopaedic surgeons as well as others. In any event, I accepted the evidence of Mr Sherlock that the pursuer did have osteo-arthritis at this time. I thought he gave his evidence in a careful and considered way. I shall expand on this later, but it was clear that he had given great thought to what might have caused the pursuer's condition and I found both his approach and his conclusion compelling. He did not seem to me to have been shaken in cross-examination and I rejected the suggestion made by Miss Bain that his evidence was just wishful thinking with the benefit of hindsight. I also rejected any suggestion that what the pursuer had at this stage was an anterior knee pain syndrome as initially described by Mr Hullin. I accepted Mr Sherlock's evidence that he did not have that syndrome. In the course of the evidence a certain confusion was, I think, caused from time to time by using the phrase anterior knee pain syndrome when speaking merely of anterior knee pain in general and without reference to the specialities of the syndrome. I think that confusion was illustrated, and perhaps added to, by Mr Hullin's use of the phrase generic anterior knee pain syndrome. In any event, the evidence was that the pursuer's symptoms had not been triggered by the sort of events which Mr Hullin described as triggering events for anterior knee pain syndrome. It is true that there are repeated references in the records to the pursuer having anterior knee pain but that is indeed what he did have. I did not understand, however, that that was the same as saying that he had anterior knee pain syndrome as initially described by Mr Hullin. Anterior knee pain, as I understood it, is merely a symptom, whereas anterior knee pain syndrome is a recognised syndrome in certain age groups brought on by certain activities. The various procedures and treatments which the pursuer underwent in 1993 were certainly designed to relieve his knee pain. So, for example, the operation note of 13 December 1993 described the indication for the operation as anterior knee pain, but what the cause of the knee pain was is a different question. Mr Hullin also took issue with Mr Sherlock's choice of operation, even if the pursuer had osteo-arthritis. That also was not put to Mr Sherlock but, as I understood it, the point was made in order to support Mr Hullin's view that this was not osteo-arthritis at that time. Of course, if the only cause of the pursuer's knee pain was osteo-arthritis, then the operation of 13 December 1993 would not have been justified. Mr Sherlock accepted that himself. He said in evidence, and the records show, that the pursuer was repeatedly advised that nothing could be done to reverse his degenerative changes. The purpose of the operation was to relieve the excessive lateral p

For these reasons, therefore, I accepted Mr Sherlock's evidence that the pursuer did have osteo-arthritis of the patello-femoral joint in 1993 and that that in combination with his excessive lateral pressure syndrome was the cause of his pain at that time. However, as I have already indicated, this does not appear to me to be a point of great materiality in this case. The real question here, it seems to me, is whether the pursuer has proved that the kneeling which he did at work caused or materially contributed to his knee becoming symptomatic in 1992. Whether it is called osteo-arthritis or degenerative changes there was no dispute that it must have been present before his knee became symptomatic. What therefore caused a previously asymptomatic knee to become symptomatic? Or, rather, has the pursuer proved that the kneeling he did at work caused or materially contributed to that? Mr Sherlock was of the view that it did. The symptoms started in 1992 when the pursuer was at work. He had previously been asymptomatic. But if it was just the single incident on 18 December, why had there been symptoms over the previous six months? Also, why were none of the defenders' other employees affected? And why didn't the pursuer get better? Consideration of these matters against the background of the pursuer's work pattern which I have held to have been established led him to the view that this was a case of repeated cumulative injury caused by kneeling over a period of time. He went on to explain this in some detail by reference to the way the knee works. He did so by reference to drawings which he produced (No.37 of process). He explained that the patello-femoral joint is the most common source of problems in the knee because it is at the biological limits which can be imposed on the body. Moving from the standing position to the kneeling position increases the body load on that joint (and if a weight is being carried, the body load plus the weight) by six times. Also the area to which that load is transmitted is smaller when kneeling than when standing. The articular cartilage is an effective shock absorber but needs articular fluid. If the knee is bent for a considerable period the articular fluid is squeezed out. That has the effect of making the cartilage less elastic and less able to withstand forces. If the knee is moving there is no problem. But if the knee is not moving for long periods then it loses the lubrication provided by the articular fluid, it loses the nutrient effect of that and it also loses the normal shock absorbing effect provided by the articular cartilage.

Mr Hullin on the other hand thought, at least initially, that the pursuer had what he called a generic anterior knee pain syndrome in 1992-93 and that his present condition, which it is not disputed is osteo-arthritis of the patello-femoral and medial compartments of the knee, was attributable to the operation performed by Mr Sherlock in December 1993. Even if this was so - and I do not accept that it was - Miss Bain did not suggest, correctly in my view, that the operation in some way broke the chain of causation in law. If that is correct, it would not matter what the problem was with the pursuer's knee in 1992-93 because its present condition is a natural and direct result of that. In any event, when asked in cross-examination what his view on causation would be if in 1992 the pursuer had had no osteo-arthritis but had chondromalacia together with excessive lateral pressure syndrome and symptoms developed in 1992 when he was only 32, Mr Hullin replied that the most likely explanation was the injury he sustained in December 1992. In that event he agreed that one would want to look at the pursuer's occupation. Mr Hullin said he had not previously been given any specific information as to the time the pursuer spent kneeling either in a shift as a whole or at any one time in the course of a shift. However, when the pursuer's work pattern as given in his evidence, and now held by me to have been proved, was put to him, he agreed that it made sense to him as an orthopaedic surgeon that eventually the forces on the knee became such that they triggered the incident of December 1992. He went on to say that kneeling for the periods mentioned by the pursuer might be a significant causal factor in that incident. Moreover, if in the summer of 1992 the pursuer had started to feel an ache in the knee followed by severe pain in the December incident, then you would have to look at the overall picture and kneeling could cause the onset of such symptoms. He had earlier said, in his evidence in chief, that kneeling increases the forces over the patello-femoral joint and may cause symptoms of pain in the knee, depending on the degree of the forces applied and the state of the individual's knee.

At the end of the day, therefore, it did not seem to me that, given the pursuer's work pattern which I have held to have been proved, there were any material differences between Mr Sherlock and Mr Hullin on the question of whether the pursuer's kneeling at work caused or was a material contributory factor in causing the symptoms he had in 1992 and 1993 and which have led to his present condition. In the event I accepted Mr Sherlock's evidence that the pursuer had osteo-arthritis in 1993 and, indeed, in 1992 but both experts accepted that whatever it was that he had in his knee at that time pre-dated 1992, that it was not symptomatic until 1992, that its becoming symptomatic in 1992 made sense orthopaedically with it having been caused or materially contributed to by the kneeling which I have held the pursuer did, and that its becoming symptomatic in 1992 had led to his present condition. In these circumstances I came to the conclusion that the pursuer had proved that his present condition was causally connected with the kneeling that he did while at work with the defenders in the years he was with them between 1981 and 1992.

I turn next to the grounds of fault relied on by the pursuer. As the case developed these were in essence that as part of the defenders' duty to provide a safe system of working it was their duty (1) to provide some form of protection such as knee pads; (2) to devise a system of working which would have the effect of lessening the periods, both individually and as a total, spent by their employees such as the pursuer on their knees; and (3) to warn their employees such as the pursuer of the risk of developing symptoms from kneeling and to advise them to report any such symptoms. On the basis that I found that the pursuer was kneeling at work for the periods he described in evidence, which I have, it was not disputed that the defenders were indeed at fault in these respects. At the start of her closing submissions Miss Bain frankly accepted that the defenders provided no protection in the form of knee pads, that they gave no instruction with regard to taking breaks from kneeling in the course of a shift, that they gave no warnings of the risks involved in kneeling for long periods and, indeed, that they carried out no formal risk assessment of the tasks carried out by the night crew. She then, quite understandably, went on to concentrate on what she said were the two principal issues in the case, namely, whether the periods spent kneeling by the pursuer in the course of his shift were as he said they were and, if so, whether that kneeling caused the symptoms he felt prior to his operation in December 1993. At the end of her submissions, when dealing with quantum of damages, she said that if the osteo-arthritis which the pursuer now has and which is the cause of his present problems were caused by his kneeling at work for the periods he described in evidence, she could not resist the claim for damages based on the defenders' failure to provide knee pads, arrange for breaks in the periods spent kneeling at work and issue warnings of the risk of symptoms arising from prolonged kneeling.

In my opinion Miss Bain was correct to take this stance. The evidence was all one way to the effect that the defenders did not take any of these steps. Equally the evidence from those who were qualified to give it was all one way to the effect that the defenders should have assessed the risks, if any, involved in the work carried out by the night crew and, assuming that there was the possibility of an appreciable amount of kneeling being involved, such as was the case with the pursuer and Craig Williams, should have taken the steps desiderated, or at least some of them depending upon the medical advice received. That evidence came first from Mr Walter Cameron, a health and safety consultant in private practice. His report and a subsequent letter from him dated 26 October 1998 form No.32/1 of process and he spoke to them in evidence. In the letter he appears to envisage that employees might spend 15-30 minutes on their knees at any one time, but in evidence he explained that there was no basis for those particular figures and he drew attention to the word "say" - "say 15-30 minutes". He stressed that the point was for the employer to address the problem, seek medical advice and in the light of that advice decide how best to obviate the risks. I accepted Mr Cameron's evidence. I also accepted the evidence of Dr Graveling, which was to the same general effect.

From this evidence and on the basis that the pursuer was kneeling at his work for the periods I have held proved I am satisfied that the defenders were at fault and in breach of their duty of care towards the pursuer in the manner desiderated.

In his pleadings, however, the pursuer avers these duties in the context of bursitis or beat knee which has been known for a long time to be caused by prolonged kneeling and has been a prescribed disease in terms of the relevant legislation since the early part of the century. The pursuer here does not have bursitis but nevertheless contends that the defenders were at fault in the manner described and as a result caused the knee pain from which he has suffered since 1992. Against this background the defenders raised another issue the effect of which, Miss Bain submitted, was that the defenders were not liable in reparation to the pursuer. The contention was that while it had long been recognised that excessive kneeling could cause bursitis of the knee, it was not foreseeable that it could cause osteo-arthritis of the knee. As I understood it, Miss Bain's submission came to this. Albeit that the defenders were acting negligently in allowing the pursuer to do his work kneeling in the way that I have held established and albeit that if the pursuer had suffered bursitis as a result the defenders would have had no answer to the claim, nevertheless, since it was not bursitis that he suffered but osteo-arthritis, they could not be held liable. Miss Bain sought to distinguish the case of Hughes v Lord Advocate 1963 SC (HL) 31 from the present case. She did that, as I understood it, on the basis that while repeated acts of kneeling could be anticipated to cause osteo-arthritis, the pursuer's case was not one of repeated acts of kneeling but of prolonged periods spent on his knees. She said that Mr Hullin drew attention to this distinction. This is a reference, I think, to one answer in his re-examination when on being asked directly, for the first time I think, if there was a difference between prolonged kneeling as opposed to the act of kneeling he replied:

In my opinion the point sought to be made by Miss Bain is not justified by this answer. Mr Hullin was certainly drawing a distinction between prolonged kneeling and the act of kneeling so far as bursitis was concerned. But if I understood the second sentence of the answer correctly, while he was saying that the act of kneeling increases the forces across the patello-femoral joint, he was not going so far as to say that they disappeared once the person was down on his knees, as opposed to continuing to be present so long as the person remains in the kneeling or squatting position. That was consistent with the rest of his evidence and with Mr Sherlock's evidence. Moreover, in his last answer in re-examination Mr Hullin said this:

Earlier Mr Hullin had said that it was not widely recognised in the orthopaedic community that prolonged kneeling causes osteo-arthritis in the patello-femoral joint but his attention was then drawn to an article which appeared to envisage the possibility of this (No.30/2 of process). This article had been lodged in process by the defenders but despite that Mr Hullin had not had the chance to study it before giving his evidence. However, after being taken through the article in his cross-examination he agreed that the general conclusion of the article, which was reporting a comparative study of knee disorders in carpet and floor layers (who spend a considerable part of their working time on their knees) and painters (who do not), was that those who spend more time kneeling are at an increased risk of suffering from knee disorders. He pointed out, however, that in Table 3 of the article the only knee disorder in which this was shown in a statistically significant way was bursitis and in the case of arthrosis of the knee there was no difference between the carpet and floor layers and the painters. On the other hand it is stated later in the article (at p.315) that the results of the study indicate "that the load in carpet and floor layers' work may provoke symptoms in arthrotic knees" and (at p.316) "that long-term kneeling work provokes knee symptoms". Mr Sherlock was not asked about this article in his evidence but Dr Graveling was. Indeed, it was he who had found it. He plainly had misgivings about certain aspects of the study and what was said in the article and he expanded on these considerably in the course of his evidence. I do not, however, think it is necessary to go into all this. The reason for that is that the article was published only in 1992 and therefore insofar as it reported the findings of the study undertaken it could have no bearing on whether the defenders could or could not have reasonably foreseen that the pursuer would suffer osteo-arthritis as a result of kneeling during the years he was working for the defenders. In any event, the issue that was principally canvassed in the evidence in relation to these articles - and in Miss Bain's submission - was whether it was reasonably foreseeable that prolonged periods of kneeling could cause osteo-arthritis. But that in my opinion is not the issue here. It is not the pursuer's case that prolonged kneeling caused his osteo-arthritis. The issue is what caused his osteo-arthritis to become symptomatic. The pursuer's case is that it was the kneeling which he did which caused that. As Miss Bain put it at the start of her closing submissions, correctly in my view, the issue is whether the kneeling caused the knee pain which he had prior to his operation in December 1993. The article No.30/2 of process reported that the findings of the study indicated that long-term kneeling work did indeed provoke knee symptoms but, as I have said, that was in 1992.

Another article (No.30/3 of process) was discussed in evidence by Dr Graveling but was not put to either of the orthopaedic experts. This was an article published in 1996 as a review of the literature on the risk of knee disorders in connection with inter alia kneeling work. Although some of this literature pre-dated the start of the pursuer's period of work with the defenders, much of it did not. In any event, it was not proved that reasonable employers should have known of either of these articles. The same goes for a third article that was discussed in evidence (No.33/2 of process). So I do not attach any weight to them on the question of the reasonable foreseeability of kneeling work as a cause of osteo-arthritis. Nor was it proved by any other evidence that reasonable employers should have known at any time when the pursuer was working with them that kneeling work could cause, specifically, osteo-arthritis of the knee. There was no such evidence and, indeed, the evidence of Dr Graveling was to the contrary. But, as I have said, the issue was not whether the pursuer's osteo-arthritis was caused by kneeling work but whether his symptoms were. It was not said and could not be said that an employer could not foresee that kneeling could cause knee symptoms, for example, from bursitis. The evidence was all one way on that - from Mr Sherlock, Mr Cameron and Dr Graveling. Reference was also made to Guidance Note M.S. 10 from the Health and Safety Executive issued in 1977 (No.31/6 of process). That document stated that beat knee is a condition which "affects workers who habitually have to kneel at their work, e.g. carpet layers, miners in low seams, asphalt layers, joiners, etc." It is "a bursitis or subcutaneous cellulitis of the knee due to long continued or repeated pressure, minor trauma, or repeated cycles of movement, e.g. pivoting on the knee." In these circumstances it seems to me that given that the pursuer was kneeling at his work in the manner and for the periods which I have held proved it was reasonably foreseeable by the defenders that the pursuer would suffer from some symptoms in his knees, including pain. That the pain did not in fact come from bursitis but from another cause does not seem to me to matter. On the contrary, this case seems to me to fall within the principle of Hughes v Lord Advocate. No doubt each case must turn on its own facts and the facts in that case were very different. However, as in that case, the defenders here owed a duty to take reasonable care for the safety of the pursuer, their employee. There was no dispute about that. Moreover, as was held in Hughes, I am satisfied here that the defenders were at fault in not providing a safe system of work for a person such as the pursuer who spent a lot of time kneeling and that if they had done as they ought to have done, the pursuer would not have suffered the knee pain and its consequences that he has suffered. It is true that the precise way in which the pursuer came to be suffering his knee pain and its consequences were different from what might have been expected but I do not think that that matters. If I may paraphrase Lord Reid in Hughes (at p.40), the pursuer's condition was caused by a known source of danger but caused in a way which could not have been foreseen and that affords no defence.

I turn finally to the question of damages. The parties were agreed about this. Solatium was agreed at £8,000, with two-thirds being attributable to the past. Interest on that sum, £5,333, was £1,313 to the start of the proof (3 November 1998). To the date of decree that amounts to £1,354. Loss of earnings to the end of the statutory relevant period (18 December 1997) was £45,459 with interest to that date being £9,555. For the purposes of the Social Security (Recovery of Benefits) Act 1997 the recoverable benefits that will require to be deducted in respect of the relevant period total £32,510.37. Then loss of earnings from the end of the relevant period to the start of the proof amounted to £10,714 with interest of £386 (calculated to 12 November 1998) to be added. Calculated to the date of decree those figures become, respectively, £13,099 and £560. Future loss of earnings was agreed at £32,000. For the purposes of the 1997 Act it was agreed that a nil figure in respect of both cost of care and loss of mobility was appropriate for both the relevant period and the period to the date of decree. The claim for services in terms of section 8 of the Administration of Justice Act 1982 was agreed at £500 with interest to 12 November 1998 of £123, which I calculate at £126 to the date of decree. Finally, loss of pension rights was agreed at £12,000. The total of these sums is £122,653. For the reasons that I have given I shall therefore sustain the pursuer's first plea-in-law, repel the defenders' first, second, third and fourth pleas-in-law and grant decree for payment by the defenders to the pursuer of the sum of £122,653 with interest thereon at the rate of 8% per annum from the date of decree until payment.