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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cawkwell v East Calder District Homing Society Social Club & Ors [2000] ScotCS 144 (1 June 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/144.html Cite as: [2000] ScotCS 144

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[1] In this action the pursuer sues the first defender, the East Calder District Homing Society Social Club, an unincorporated association, and the second, third, fourth, fifth and sixth defenders, the office bearers of the club, for damages for injuries sustained by him on the evening of 1 January 1996 when he was attending a dance in the club premises at Oakbank Road, East Calder. The club is a registered club under the Licensing (Scotland) Act 1976. At the material time the pursuer was, and continues to be, a member of the club. The claim is directed against the club, the second, third, fourth, fifth and sixth defenders being cited only in a representative capacity as office bearers.

[2] At the commencement of the proof I was advised that it was the defenders' intention to argue that neither the club nor its committee members could be liable in negligence to one of its members. In the event, this argument, which should more appropriately have been advanced at procedure roll, was not advanced . At the close of the proof, however, counsel for the defenders purported to reserve his position on the question as to whether any duties were owed to the pursuer by the defenders. This seemed to me to be a somewhat surprising position to take up after proof, the necessity for which might have been avoided had the point been successfully taken at the appropriate stage. Since the argument was not advanced I need not deal with it.

[3] The club premises consist of two storeys in the upper of which there is a large rectangular function room with a dance floor in the middle, and seating and tables arranged around the walls. At one end is a stage, and at the other a large hatch which serves as a bar, from which alcoholic drink is served during functions. On the evening in question the dance was attended by upwards of 160 people, both members and non-members. Extra seating and tables had been brought in to the room and placed on the edge of the dance floor adjacent to the bar. The room was crowded and congested. The sixth defender, Ronald Crowe was the social convenor and a committee member of the club. He was in the premises and in overall charge of the function. In the course of the evening he consumed about six pints of beer. At about 10pm he received complaints from club members about the behaviour of certain non-members who were sitting at tables near the bar. He spoke to them and warned them that if they continued to misbehave they would be ejected from the club. Their behaviour improved, but about an hour later it deteriorated again and Mr Crowe approached the individuals with a view to ejecting them from the club. As he was speaking to them one of their number got up from his chair and headbutted Mr Crowe. A fight then ensued and a number of people in the vicinity moved quickly away towards the exit in order to avoid involvement in the fight. This movement was described by the pursuer as "a surge of people". The pursuer who was in the vicinity of the exit adjacent to the bar was caught in this surge and was pushed forward on to the floor. As he fell, his left knee struck a glass which was lying on the floor and he sustained a severe laceration to the knee accompanied by a complete rupture of the patella tendon. There was no dispute as to the circumstances of the accident, and accordingly I have no difficulty in accepting the evidence of the pursuer and his companions that the accident occurred as I have described.

[4] The only aspect of the factual background to the case in relation to which there might be said to be some dispute was the system of controlling entry into the club. The pursuer contended that the signing in book kept for the purposes of the Licensing Act was not properly maintained. For that contention he relied on the evidence of Police Constable McGeechie who was called to the club after the pursuer had been injured. He examined the entries in the book for that evening and formed the opinion that it had not been kept properly. In a number of instances single names had been given instead of full names and incomplete addresses had been entered. He did not examine the book for any period prior to that evening. He took possession of the book and passed it on to the Licensing Branch of Lothian & Borders Police. No action was taken and the book was returned to the club. Constable McGeechie conceded in cross-examination that it was possible that members of the club or friends of the signatories could identify the individual signatories from the entries in the book. During the evening entry to the premises was controlled by a doorman, Peter Low, aged 74, whose function it was to check that persons entering the club were members. If they were not members, his job was to ensure that they were signed in by a member and entered their names in a book kept in compliance with Section 107(1)(k) of the Licensing Act. It was also part of his duty to exclude persons who appeared to be under the influence of drink. He was on duty from 6pm until 11pm, and left the club about 11.15pm. The persons whose behaviour gave rise to the incident following upon which the pursuer was injured had been admitted by him at some time prior to 10pm.

[5] Mr Low maintained that the committee were insistent that he implemented the rules concerning the signing in of non-members, and that on the evening in question he did his best to see that the rules were implemented and that non-members were not admitted under fictitious names. He thought that, out of the large number of persons in the club that night, only 30 to 40 were non-members. His evidence was not challenged.

[6] Mr Ronald Crowe the social convenor of the club was called on behalf of the pursuer. He said that there had never been trouble of this kind in the club before and that the system for controlling entry was maintained. Those who had caused the trouble had entered the club before 10pm. So far as his own condition was concerned, he admitted having drunk about five or six pints in the club that evening. Nevertheless, he considered that he had dealt appropriately with the trouble, first of all by warning the individuals concerned that they would be ejected if they continued to misbehave, and thereafter by attempting to eject them when they failed to heed his warning. After the incident he had brought the disco to a halt and had closed the club. While Mr Crowe was not a particularly impressive witness, there was nothing in his evidence or in the other evidence which led me to conclude that he was not substantially telling the truth as he saw it.

[7] I accept the evidence of Constable McGeechie and in particular his evidence that there were deficiencies in the entries in the signing in book. Nevertheless I accept the unchallenged evidence of Mr Low that he did his best to maintain the book and generally to operate the system to which he spoke. While the entries in the book may have been deficient, their presence indicates that Mr Low was at least insisting on non-members signing. If he had been making no effort there would have been no entries at all.

[8] The pursuer contends that his injuries were caused by the fault and negligence of the defenders. He firstly avers that the defenders failed to devise, institute and maintain a proper system for controlling entry to the club. More particularly he avers that they failed to prevent persons signing in under fictitious names and to ensure that all persons signed in were known to the member signing them in, that he failed to deny access to any persons not known to be a member or attempting to gain entry under a fictitious name and to ensure that the doorman was present throughout the period when the premises were open. Constable McGeechie's evidence was to the effect that some of the names and addresses entered on the night in question were incomplete. There was no evidence that they were fictitious. Mr Crowe's evidence was that there had never previously been trouble in the club of the kind experienced that night. The pursuer led no evidence as to what a proper system might have been, and accordingly there was nothing with which to compare the system in operation. The system of signing in was designed to meet the requirements of the Licensing Act. As I understand it, it had no specific relevance to the safety of persons visiting the club. In the light of that evidence I am unable to hold that the club failed to devise, institute and maintain a proper system of controlling entry to the club. In any event, had there been a breach of this duty, I would have been unable to find that it caused the pursuer's accident. There was no evidence that the individuals who caused the trouble which gave rise to the incident were admitted to the club through a failure in the system for controlling entry. According to Mr Low, they entered the club about 10pm while he was on duty, and there was no evidence of any irregularity relating to their admission.

[9] The pursuer further avers that it was the duty of the defenders to take reasonable care to prevent violence occurring within the club, to ensure that Mr Crowe was not so incapable through the effects of alcohol as to be unable to keep order, and to avoid members being injured by broken glasses resulting from disorder within the club. I find it difficult to fault the steps that Mr Crowe took to prevent violence. After the initial disturbance, he warned the participants that they would be ejected from the club if their behaviour was repeated, and when it was repeated he took steps to eject them. While I accept that Constable McGeechie found Mr Crowe somewhat uncommunicative when he attempted to find out what had happened, I am unable to conclude from the evidence that Mr Crowe was any less able to keep order than if he had refrained from taking alcohol. There was no evidence to indicate that events would have taken a different course had he consumed less alcohol than he did or that there were other steps which could have been taken to prevent violence. In this circumstances I am unable to conclude that the defenders failed in their duty to prevent violence within the club. In any event it was not established that there was any causal link between the alleged failures in duty and the accident. It was not clear from the evidence whether the glass which injured the pursuer was broken before or after the pursuer fell on it. There was some evidence that people left their glasses on the floor after finishing their drinks. Accordingly, I am unable to find that the broken glass resulted from disorder within the club. In these circumstances the pursuer must fail and the defenders are entitled to absolvitor.

[10] I now turn to deal with the damages which I would have awarded had the pursuer been successful. The pursuer sustained a very unpleasant injury in the form of a deep laceration to the left knee involving a complete rupture of the patella tendon. He was taken by ambulance to St John's Hospital, Livingston where, on the following day, he underwent surgery to repair the tendon. In the same operation his patella was wired to his tibia in order to reduce the stress on the repaired tendon. His left leg was then fitted with a full length plastercast and he was discharged on 5 January 1996. His mobility was considerably impaired and he required to use crutches to get about. After the plaster was removed he required to wear a knee support and he underwent a three month course of physiotherapy. On 25 July 1996 the wire was removed from his leg under general anaesthetic. The pursuer is a painter and decorator. In about September 1996 he was offered employment by Mitie Trident Ltd, a company for whom he had previously carried out contract work on a self employed basis. The work was specialised supervisory painting and decorating work of a light nature. Although he did not feel able to carry out work at high levels or work which required kneeling, he accepted the offer of employment, but about two weeks after he commenced, his left knee gave way and he slipped damaging his left ankle. That caused him to be off work a further six days and he received further physiotherapy treatment for the damaged ankle. In February 1999 he left Mitie Trident because he was unable to carry out the work he was being asked to do. In particular he was unable to work when kneeling or standing on scaffolding or on the rungs of ladders. In April 1999 he recommenced work on a self-employed basis after undertaking a business course with the local enterprise authority. By that time he had lost the connection from his previous business and the availability of work has been to some extent spasmodic. He remains unable to work at a height or from ladders for more than about half an hour. He finds that the left knee is still liable to give way and he has lost confidence. He has been unable to resume his previous hobby of golf. I accept the opinion of Mr John Gibson FRCS, Consultant Orthopaedic Surgeon, who considered that on a balance of probabilities the liability of the knee to give way was the result of damage to proprioceptor fibres in the tendon. I would have assessed a solatium at £9,000. The parties were agreed that two thirds of this figure should be attributable to the past for purposes of interest.

[11] The pursuer's claim for loss of earnings was based on a report prepared by Mr T Ritchie Campbell, CA and spoken to by him in evidence. He began by taking the profits of the pursuer's business in the three year period prior to the accident in order to bring out what he described as a weighted average. The pursuer's profits for the year ended 31 October 1993 were £12,952, for the year ended 31 October 1994 £10,916, and for the year ended 31 October 1995 £9,187. The average of those figures is £11,018. By giving greater weight to the figures for the years ended October 1994 and October 1995, Mr Ritchie brought out a weighted average of £10,391. The difference between the actual and weighted averages is £627. He then examined the accounts of comparable painting and decorating businesses within his clientele and found that the construction industry, having suffered a recession in the period 1993-1995, experienced a significant upturn in trade in the late 1990s and that painters and decorators had benefited from that. The annual growth factor which emerged from the accounts which he examined was 7.5% per annum in the period 1996-1999. Mr Campbell then applied an annual growth factor of 7.5% to his weighted average pre-accident profit figure of £10,391. This brought out a figure of net profit for the year ended 31 December 1996 of £11,170, for the year ended 31 December 1997 of £12,008, for the year ended 31 December 1998 of £12,909 and for the year ended 31 December 1999 £13,877, a total of £49,964. From this figure he deducted the sum of £46,046 being the pursuer's total actual earnings for the same period derived from incapacity benefits, wages from Mitie Trident Ltd, jobseekers allowance, and profits from his own business from April to December 1999. This brought out a figure for past loss of earnings of £3,918.

[12] For future loss of earnings Mr Campbell began with the notional net profit for the year ended 31 December 1999 of £13,877. He then made the assumption, based on the pursuer's actual self-employed earnings for the period between April and December 1999, that his annual self-employed earnings for the year to December 1999 would have been £4,858. He deducted that figure from £13,877 bringing out a deficiency of £9,019. This figure he proposed as the multiplicand for the calculation of future loss of earnings. Counsel for the pursuer invited me to award a lump sum based upon a multiplier of two or three years.

[13] Counsel for the defenders criticised this method of calculation in a number of respects. Firstly, he argued that there was an element of double counting in respect that the pursuer had failed to deduct the sum of £600 in respect of pension premiums while at the same time claiming a loss of pension. Secondly, he contended that the starting point of any calculation should be the pursuer's pre-accident net profit as declared for tax purposes, and that the deductions from profits for wife's wages in the years to 1994 and 1995 should not be added back in as Mr Campbell had done. Counsel also challenged the use of a weighted average which was greater than the net profit for the year to 1995. He argued that since a growth factor was to be applied to the base net profit figure then the actual figure for the year to 1995 should be used. The sound approach was to apply the growth figure to the actual net profit. Had that been done there would have been no wage loss. In fact during the period that the pursuer worked for Mitie Trident he earned considerably more than he had done in any year of self-employment. Lastly, counsel for the defenders challenged the use of a growth factor of 7.5%. This was derived from the accounts of unnamed clients which had not been produced and could not be tested. The growth figure used by Mr Findlay Marshall, consultant actuary, in the calculation of pension loss was 4.5%. It was unacceptable to use different growth rates in the calculation of the loss suffered by a single person. If the figure of 7.5% was rejected, the whole basis the pursuer's calculation disappeared and no alternative had been proposed. In order to take account of the pursuer's period off work from January to August 1996, counsel for the defenders proposed that eight twelfths of his pre-accident annual income should be taken. For the period between August 1996 and February 1999 the pursuer earned considerably more with Mitie Trident than he had done in a self-employed capacity. Since resuming self-employment, his actual earnings could be assumed to be £4,858. Since Mr Campbell's multiplicand figure of £13,877 could not be sustained, there was no figure from which the £4,858 could be deducted. Counsel suggested that I deduct that figure from a pre-accident net profit figure of £8,036 (the figure for the year ended October 1994) bringing out an annual loss of £3,078, to which he applied the multiplier of two or three years suggested by the pursuer.

[14] I accept some of the criticisms of the pursuer's calculation made by counsel for the defenders. In particular, I would not have been prepared to apply the growth factor of 7.5% suggested by Mr Campbell. I do not consider it to be fair to rely on a figure which was not vouched in any way and could not be tested. I would, however, have been prepared to accept Mr Campbell's weighted average of the pursuer's net profit for the three years prior to the accident. There is not a great deal of difference between the figure of £10,391 which he brought out and the actual unadjusted average of £11,018. I would have been prepared to accept that the decline in the pursuer' pre-accident profits was due to a recession in the industry and that there would have been some pick up thereafter. The pursuer was off work for eight months after the accident and I consider this should have been recognised by an award of eight twelfths of the weighted average pre-accident figure, bringing out a sum of £6,927. Thereafter during the period in which the pursuer was employed by Mitie Trident, I am not satisfied that he suffered any wage loss. I would however, have been prepared to accept that he required to give up that job because of the consequences of the accident and that when he recommenced business in a self-employed capacity, he had lost much of the connection which he had previously built up. The pursuer is not however wholly pessimistic about the prospects for his business and I consider that having regard to his work record which, in my view, does him credit, he will be able to build up his business again within a few years. In these circumstances I would have been prepared to apply a multiplier of three years to the difference between his pre-accident weighted average income and the figure of £4,859 which is the annual figure derived from his income for the eight months between April and December 1999. The multiplicand is therefore £5,533, bringing out a total in round terms of £16,600.

[15] Prior to the accident the pursuer was contributing £50 a month to a self-employed person's pension scheme. The last payment was made on 20 March 1996. He subsequently became employed by Mitie Trident but did not begin to benefit from their pension scheme until January 1997. He continued in pensionable employment until January 1999 after which time it was open to him to resume paying premiums in respect of a self-employed person's pension. In these circumstances counsel for the pursuer limited his claim to loss of pension to a figure representing the loss of interest at the investment rate of 6% on the total of the premiums which the pursuer would have paid between March 1996 and January 1997 had he continued as a self-employed person during that period. I was informed that the relevant figure was £139 and I did not understand counsel for the defender to contest the appropriateness of that sum. In these circumstances I would have awarded the pursuer £139 in name of loss of pension. So far as the loss of services is concerned, parties were agreed that the appropriate figure should be £1,000.