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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nimmo v Secretary Of State For Scotland [1999] ScotCS 59 (24 February 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/59.html Cite as: [1999] ScotCS 59

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In this action it is accepted that on 14 November 1994 the pursuer (now aged 34 years) tripped on a piece of angle iron and sustained a severe strain involving an element of tearing in the ligaments of his left ankle joint.

At the outset of the proof liability was admitted and, as to the merits of the action, the only outstanding issue is that of contributory negligence. In that regard there is no dispute but that in conditions of darkness or, at least, of semi-darkness the pursuer crossed a yard in Glenochil Prison and stepped down a couple of steps onto a surrounding path where his foot encountered the piece of angle iron in question. According to the pursuer, the piece was about fourteen inches long and had been lying in a puddle but, according to the witness, Norman Greig, it was only some four inches long. At all events, the place where this was lying was just outside the door of the plumber's "shop" which had been clear of any obstruction when the pursuer last went there some four hours prior to the accident. I accept the pursuer's evidence that the offending piece of iron had been left on the path by a fitter who had been cutting pieces of angle iron near the steps on the afternoon in question. The pursuer was perfectly frank in saying that as he went down the steps his eyes were on the door of the "shop" and that, despite the general untidiness of the yard itself, it had never occurred to him that the fitter would fail to leave clear an area on the path "right next to his own shop". The path was regularly used by various tradesmen whose "shops" surrounded the yard and the witness, Mr Greig, had never previously seen debris on the path as opposed to the surface of the yard itself. Another witness, Mr Mallon, said that in general the path was kept tidy.

In all the circumstances, including the circumstance that the path had been clear of obstructions only four hours previously, I am not prepared to fault the pursuer for making the assumption that the path outside his "shop" was clear. In any event, even if the pursuer's eyes had been on the ground there is no evidence that, lying, as it did, in a puddle and in the shadows, the pursuer would have seen the piece of iron in question. As he, himself, said, it was possible that he would have done so but it was equally possible that he would not have done so. Mr Greig doubted whether, even if all the internal lights had been on in the "shops" surrounding the yard, they would have "highlighted" the said piece of metal. Counsel for the defenders did not insist in any other aspect of the case of contributory negligence, as pled, and, for all the foregoing reasons, I am not satisfied that any such case has been made out on the ground, simply, of the pursuer's failure to watch his own footing.

That leaves only the question of damages, in regard to which the "services" claim was helpfully agreed at £500 inclusive of interest. For the rest, the sum sued for comprises solatium. As to that, the pursuer's ankle was in plaster for a week and he was off his work as a maintenance plumber in the prison for some thirteen weeks. In the initial stages it is clear that the ankle was extremely painful but even now, over four years later, it continues to give him trouble. In particular, I accept the pursuer's evidence that, depending on what he has been doing, after a day's work the ankle can swell up and be painful in the evening. I also accept that it becomes painful after a round of golf, which the pursuer plays regularly, and even more painful after walking four or five miles in the hills which is another of the pursuer's hobbies. That said, it is, of course, important that the pursuer is still able to pursue these hobbies, albeit accompanied by some measure of discomfort.

In so far as the medical evidence diverged - and I am not sure that it diverged very greatly - I prefer the evidence of Mr Bennett whom I saw in the witness box and who, in my opinion, gave a wholly satisfactory explanation for the pursuer's continuing symptoms. In brief, Mr Bennett was of opinion that the pursuer had been left with some residual instability in the joint which, depending on the amount of use, could give rise to some swelling and discomfort or pain. Indeed, on examination, Mr Bennett had noticed some limitation in movement of the ankle which he attributed to a build up of fluid in the joint at that time. In Mr Bennett's opinion the condition was permanent and this is clearly of considerable significance where the pursuer is now only 34 years of age.

In the foregoing circumstances I assess solatium at £6,000 of which I apportion £3,000 to the past. In this connection the case is, in my opinion, closer to those cited on behalf of the pursuer, namely Watson v British Railways Board 1991 SLT 657 and Tweedy v Newboult 1996 SLT 2 than to those cited by counsel for the defender, namely Connell v BP Chemicals Ltd 1993 SLT 787, Ross v National Coal Board 1988 SLT 385; McLafferty v London Borough of Southwark, Kemp & Kemp para 13-036 and Rouse v Doncaster Metropolitan Borough Council, Kemp & Kemp para 13-035.

Interest at 4% on £3,000 from the date of the accident until now was agreed by counsel at £510 and, in the result, I shall sustain the pursuer's first plea in law, repel the defender's competing pleas-in-law (including the fifth plea-in-law), and grant decree for the sum of £7,010.