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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Young v Scottish Coal (Deep Mining) Company [2001] ScotCS 174 (3 July 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/174.html Cite as: [2001] ScotCS 174

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[1] This action of damages arises out of an accident to the pursuer, which occurred at Longannet Colliery on 20 December 1996. In December 1996 the pursuer was employed as a mining electrician by the defenders, who own and operate Longannet Colliery. On the day of the accident, the pursuer was working underground at Longannet. In his evidence, he described the events leading up to the accident, along the following lines. Around 8.30 a.m. he was walking in-bye on the N16 Road, in the direction of the 94 Face, which lies within the Castlebridge Access area of Longannet Colliery. He was walking between the No 1 Cross Cut and the 91/94 Main Gate. He was walking on a walkway, which comprised two planks of wood, laid side by side. The walkway lay to the left side of the roadway, for those walking in-bye. In the middle of the roadway lay a rail track, 6-8 inches above the height of the walkway. On the other side of the rail track, to the right hand side of the roadway, lay a coal carrying conveyor belt. As the pursuer approached the 91/94 Main Gate, he was walking down a slight gradient. That morning the coal-carrying conveyor belt was jammed, at its loop take-up. This jamming had occurred because fines (coal dust) and other debris had seized up the conveyor belt's gearings. Such jamming was a regular occurrence. When it occurred, the conveyor belt required to be stopped. This prevented coal being transported away from the coalface, with a consequent adverse impact on coal production at the colliery.

[2] As the pursuer walked towards the 91/94 Main Gate, an oversman, a beltman and two other employees of the defenders were blasting the gearings of the conveyor belt with water from a high-pressure fire-hose, in an effort to dislodge the dust and debris and thereby free the conveyor belt. This was taking place in the N16 Road, approximately 40/50 metres from the 91/94 Main Gate. The use of the high-pressure hose caused water, slurry and mud to run over the roadway and in particular over the walkway, along which the pursuer was required to walk. Water, slurry and mud flowed at a depth of approximately 6 inches down the length of the walkway, as the walkway approached the 91/94 Main Gate. As a consequence, the wooden walkway was very slippery. The pursuer had no alternative but to walk through those conditions. As he approached the 91/94 Main Gate, his left foot slipped on the wet walkway. His left foot became stuck in a hole or on a piece of wood, concealed by the water. He began to fall forward. As the pursuer did so, he put out his hands in an effort to break his fall. He was unable to do so. He fell to the floor, sustaining injuries, which I will detail later. Despite suffering from pain in his left knee and in the thumb on his right hand, the pursuer completed his shift. That day, he reported the accident to his supervisor, Callum Laird, and at the defenders' Medical Centre, where he signed the appropriate entry in the accident book. Within the Medical Centre, he was examined by a nurse.

[3] The pursuer's accident was witnessed by Graham Routledge, who was also an electrician employed by the defenders. Mr Routledge gave evidence on behalf of the pursuer. He was standing at the 91/94 Main Gate, awaiting the arrival of the pursuer, who was to take over from him, as he came to the end of night shift working. Mr Routledge described the scene of the accident along similar lines to the pursuer. In particular he described how four employees from the defenders' mining department had been using a high-pressure fire hose in an effort to clean out the conveyor belt. He understood that this exercise had been going on for at least 30 minutes, before he saw the pursuer approach. Mr Routledge explained how the use of the high-pressure hose had led to the walkway being covered with wet silt and slurry. Indeed slurry had formed in puddles at the Main Gate itself, down at the foot of the slope. As the pursuer approached, walking down the walkway towards the 91/94 Main Gate, Mr Routledge saw him slipping and tumbling forward. In Mr Routledge's opinion, it was the silt and slurry, which had caused the pursuer to slip and fall.

[4] Callum Laird, a Mine Supervisor employed by the defenders at Longannet, also gave evidence on behalf of the pursuer. Mr Laird had not been present at the time of the pursuer's accident. He had, however, been in charge of the Castlebridge Access area at Longannet. In particular, he had overall responsibility for the N16 Road, where the pursuer's accident had occurred. Under reference to an Inspection Report completed by him on 20 December 1996, he gave evidence about the coal-carrying conveyor belt in the N16 Road. He explained that the conveyor belt was prone to jamming, from coal fines becoming mixed with water. It was a regular occurrence. He explained that when the conveyor belt jammed, the correct method of freeing it involved switching it off and using shovels to remove the fines. That took a long time, however, with a consequential impact on the mining of the coal. A much quicker method was to use a high-pressure fire-hose to dislodge the fines. It was well known, however, that the use of the high-pressure hose caused wet slurry to spread over the wooden walkway, turning the walkway into an ice-rink. The only way in which that could be avoided was to dig trenches, to divert the water. The digging of such trenches was itself a time-consuming exercise. Accordingly, the high-pressure hose was frequently used, without trenches being dug. Mr Laird was able to confirm from his Inspection Record that 5 men had been working on the conveyor belt, clearing spillage, during the day shift on 20 December 1996, when the pursuer's accident occurred. He, however, had no recollection as to whether the conveyor belt was jammed when he started work that day at 6.25 a.m..

[5] The defenders, for their part, led no evidence as to the events of 20 December 1996. Nor was any of the evidence of the pursuer or Mr Routledge the subject of detailed challenge during cross-examination. In the event, I found both the pursuer and Mr Routledge to be entirely credible and reliable witnesses, in the evidence they gave as to circumstances of the pursuer's accident. On the basis of their evidence, supplemented by the evidence of Mr Laird, senior counsel for the pursuer invited me to hold that that the accident had occurred by reason of the fault and negligence and also the breach of statutory duty of the defenders. In my opinion, her submissions to that effect were well founded. Having regard to the evidence I heard, it is quite clear what happened at the time of the pursuer's accident and why the pursuer fell and injured himself. At the time of his accident, the pursuer was walking down the walkway, towards the 91/94 Main Gate. That walkway was one that he and other miners were expected to use. The walkway was covered with water, slurry and mud. The water, slurry and mud were there because of the use of a high-pressure hose to clear the blocked conveyor belt. That water, slurry and mud made the wooden walkway slippery and dangerous. The pursuer slipped because of the state of that walkway, covered as it was with water, slurry and mud.

[6] In my opinion, the state of the walkway was directly attributable to the fact that employees of the defenders, who were seeking to unblock the conveyor belt, used a high pressure hose rather than shovels to do so. The evidence of Mr. Laird was to the effect that the latter method was the correct method to follow. It was, however, recognised to be a time-consuming method. Consequently, to the knowledge of Mine Supervisors like Mr. Laird, the high-pressure fire-hose was used, despite the slurry and mud that it generated and the effect that water, slurry and mud had on the wooden walkway in the N16 Road. Counsel for the defenders suggested that in the absence of any evidence of a previous similar incident of slipping or falling, I should not be persuaded that there was anything untoward in having a walkway which was wet and slippery. Indeed, she described the condition of the walkway as a naturally occurring development, which you would envisage happening down a mine. She suggested that it might only be a transient condition. If preventing the walkway being covered with water, slurry and mud could only be achieved by the defenders taking steps that would slow up production, then it was a judgement call for the defenders as to what they did. It could not be said that the use of the high-pressure hose was indicative of fault and negligence.

[7] In my opinion, the use of the high-pressure hose was obviously dangerous, however effective a method it may have been for unblocking the coal-carrying conveyor belt. A wooden walkway covered in water, slurry and mud did not provide either a safe place of work for the pursuer or a safe means of access to his place of work. On the basis of the evidence I heard the condition of the walkway was not transient, in the sense that it lasted only a few minutes. On the contrary, Mr Routledge spoke to the walkway having been covered in mud and slurry for a period in excess of 30 minutes. In my opinion, it was reasonable foreseeable to all those engaged in the use of the high-pressure hose, as it was to their supervisors, that the use of the hose increased the risk that miners walking along the wooden walkway would slip and fall. In these circumstances, I am satisfied that the pursuer has proved that his accident occurred by reason of a failure on the part of his employers, the defenders, to take reasonable care to provide him with a safe place of work or with a safe means of access to his place of work. Likewise, I am satisfied, on the evidence I heard, that the employees of the defenders, who were engaged in unblocking the conveyor belt, failed to take reasonable care for the safety of their fellow employees, including the pursuer.

[8] The pursuer's statutory case against the defenders is founded on the provisions of Regulation 6 of the Mines (Safety of Exit) Regulations 1988. Regulation 6 provides that the manager of a mine shall ensure, so far as reasonably practicable, that "(a) every road which persons walk along to or from their places of work ...... (ii) is safe and convenient to walk along......." . In my opinion, having regard to the evidence I heard and have accepted, there can be no dispute that on the morning of 20 December 1996, at the time of the pursuer's accident, the N16 Road, and in particular the wooden walkway, forming part of that road, were unsafe. The defenders did not seek to argue that it had not been reasonably practicable to have kept the road safe at that time. In these circumstances, the pursuer is also entitled to a finding in his favour that his accident was caused by breach of statutory duty on the part of the defenders. No case of contributory negligence has been pled against the pursuer. The pursuer is accordingly entitled to damages for the loss injury and damage he has suffered as a consequence of the accident on 20 December 1996. I accordingly sustain the first plea in law for the pursuer and repel the first, second and third pleas in law for the defenders.

[9] Although the circumstances of the accident on 20 December 1996 were relatively straightforward, the claim for damages, which arises as a consequence of that accident, is much more complex. Before I turn to the details of that claim, I should sketch out the relevant history of events. The pursuer was born on 3 January 1965. At the date of his accident, 20 December 1996, he was 31. Since the age of 16, the pursuer has worked in the mining industry, initially with the National Coal Board, then with the British Coal Corporation and now with the defenders. At the time of the accident, he was employed as an electrician. On 13 March 2000, the pursuer was promoted to the position of Inspector/Supervisor. He still works at Longannet.

[10] In May 1994, the pursuer suffered an injury, when playing football. He damaged his left knee. Following that injury, he was off work for 3 days. Thereafter he returned to work underground at Longannet, as an electrician. He normally worked out-bye and much less frequently in-bye. Working out-bye from the coal face, his work involved several miles of walking along underground roads during every shift, climbing up ladders and structures to gain access to electrical equipment, crawling in confined spaces and carrying heavy cable and other equipment. Working in-bye also involved several miles of walking every day. In-bye, his duties required the pursuer to work in more confined spaces and to engage in more crawling and kneeling, than was the case with out-bye work. Although the pursuer was able to carry out out-bye and in-bye work, his left knee continued to trouble him throughout the remaining months of 1994. Whilst he did not require to take further time off work, the pursuer attended his general practitioner. In due course he was referred to the Victoria Hospital, Kirkcaldy, where as a day patient, on 23 February 1995, he underwent an operation for trimming a vertical tear of the medial meniscus in his left knee. Around the time of that operation, the pursuer was absent from work for approximately 2 weeks. He subsequently underwent physiotherapy. After the operation, the condition of the pursuer's left knee improved. The pain in his left knee came to an end. He did not suffer from any locking of the knee or from instability, stiffness or swelling in the knee. He was able to continue working underground at Longannet Colliery, without experiencing any problems from doing so. He was also able to return to swimming, running and playing football.

[11] At the time of the accident on 20 December 1996, the pursuer staved his right thumb, as he endeavoured to break his fall. He twisted his left knee and grazed both knees. He worked the rest of his shift and received treatment at the defenders' Medical Centre, when he got back to the surface. The pursuer did not work the next day, but resumed after the Christmas/New Year holidays. The defenders' sick pay records for the pursuer disclose no other absences from employment around that time. On his return to work, the pursuer continued to work underground, despite experiencing pain and discomfort with his left knee. That pain and discomfort increased during the course of his shifts. The pursuer consulted his general practitioner on 17 January 1997, complaining of pain and stiffness in his left knee, with knee locking in the morning. On 7 February 1997 he was referred to Queen Margaret Hospital as an outpatient. On 12 December 1997, as a day patient he underwent a left knee arthroscopy, which disclosed an extensive radial tear in the medial meniscus, the ends of which were trimmed. He continued as an outpatient for several months thereafter. Following the operation in December 1997, the pursuer returned to work in January 1998. He was given light work on the surface of the mine, for a period of 8-10 weeks. Then he returned to underground working. Until March 2000, he worked as an electrician. In evidence the pursuer complained that he was not able to cope with his work as well as he used to and that he regularly suffers pain, when he is working underground. In March 2000, on his promotion to Inspector/Supervisor, the nature of the pursuer's work changed. He is no longer required to use tools. He works out-bye and in-bye. He still requires to crawl. In his evidence, the pursuer explained that it was the walking that caused him the problems. Although he uses man-riding conveyors and bogies, when he can, it is necessary for him to walk long distances over rough terrain. During shifts, when he has to undertake a lot of underground working, he suffers constant pain in his left knee. The pain only stops when he gets home and is able to relax. When he wakes in the morning, his left knee is stiff. He feels that his knee is deteriorating. He considers that he will be unable to continue in his current job. He thinks that eventually he will require to cease working underground and to seek lighter work, with some other employers.

[12] The medical evidence, which I heard, came from two orthopaedic surgeons, Mr R.C. Marks, a consultant orthopaedic surgeon at the Queen Margaret Hospital, Dunfermline, who gave evidence on behalf of the pursuer, and Mr. Iain Mackay, a consultant orthopaedic surgeon at Crosshouse Hospital in Ayrshire, who was called by the defenders. Neither orthopaedic surgeon had been involved in treating the pursuer. Both orthopaedic surgeons were agreed that each of the two incidents, the footballing injury in 1994 and the mining accident in 1996, could have caused or contributed to the problems that the pursuer experiences with his left knee. Both surgeons agreed that it was difficult to separate the possible consequences of the injuries sustained in the two accidents. Both surgeons agreed that an accident, such as the Longannet accident, could have caused a radial tear of his left medial meniscus.

[13] Both surgeons were agreed that the pursuer's complaints of pain in his left knee, of stiffness of the knee in the morning and of instability are indicative that osteo-arthritis is already present in his left knee. Both surgeons were also agreed that there is a significant risk that the post-traumatic arthritic changes in the pursuer's left knee will develop in severity, to the extent that the pursuer will suffer from frank osteo-arthritits - a term which was used to describe post-traumatic changes in his left knee, that will be obvious on X-Ray examination and that will lead to the pursuer suffering from significant pain and restriction of movement in his left knee. Mr Marks assessed that risk as being one in the region of 75 % and liable to materialise within 10-15 years. Mr Mackay did not positively disagree with that assessment, although at certain points in his evidence, he spoke of the overall risk being somewhat lower and of the timescale for the development of such changes being a longer period of 20 years. Both were agreed that if frank osteo-arthritis develops, there was a possibility of further surgery being required. There were, however, certain issues on which the orthopaedic surgeons were in dispute. The first was the issue of whether the development of frank osteo-arthritis was liable to render the pursuer unfit to continue working underground. Mr Marks considered that it would. On the other hand, Mr Mackay was of the view that even if the pursuer's osteo-arthritis continued to develop, the pursuer would remain fit to work underground until the age of 60. A second area of dispute was as to the respective contributions made by the two accidents to the risk of the osteo-arthritis in the pursuer's left knee developing further. Mr. Marks' opinion was that 75% of the risk was attributable to the mining accident in December 1996, with the balance of 25% attributable to the earlier footballing injury. Mr Mackay's opinion was to the opposite effect. He considered that the first accident was the more significant contributory factor. In one of his reports he stated that the second of the pursuer's accidents contributed perhaps 25% of the increased risk of osteo-arthritis. The third issue between Mr Marks and Mr Mackay was whether, and if so when, the pursuer was liable to be advised to undergo a knee replacement operation, in the event that the osteo-arthritis in his left knee develops. Mr Marks's opinion was that the osteo-arthritis could become severe enough to warrant the pursuer being offered knee replacement, within 10-15 years. On the other hand, Mr Mackay gave evidence that, whatever deterioration occurred, the pursuer was unlikely to be offered knee replacement until he was 55 years of age and more likely not until he is 60, in view of the complications associated with knee replacement surgery.

[14] I turn next to the issue as to whether the pursuer has established that he should receive an award of provisional damages, under the provisions of the section 12 of the Administration of Damages Act 1982. In terms of those provisions, provisional damages may be awarded where it is admitted or proved that there is a risk that at some definite or indefinite time in the future the pursuer may develop some serious disease or suffer some serious deterioration in his physical condition. Counsel for the pursuer accepted that osteo-arthritis is not a disease. She submitted, however, that it could be an aspect of the pursuer's physical condition. She acknowledged that the medical evidence led during the proof disclosed that the pursuer already suffers from osteo- arthritis in his left knee. She argued, however, that the evidence had established that there was a risk of the pursuer suffering a serious deterioration in the physical condition of his left knee, as his osteo-arthritis progresses. She sought to define what should constitute the "serious deterioration", required for the purposes of section 12 of the 1982 Act, as being the development of the pursuer's osteo-arthritis to such an extent that the pursuer was so limited by pain and stiffness that he could no longer carry on his current employment. Conscious, perhaps, of the difficulties she faced in defining what should constitute a "serious deterioration" in the pursuer's physical condition, counsel for the pursuer offered two alternative bases upon which the pursuer might allowed to return to court for a final award of damages in terms of sections 3 and 4(b) of the 1982 Act. The first alternative was that the pursuer should be awarded provisional damages, to cover past and future solatium and past loss of earnings. Under this first alternative, the pursuer would be entitled to return to Court to seek a further award of damages, in the event that he suffered such deterioration in the condition of his left knee that he required to take ill-health retirement. Any further award of damages could cover loss of earnings and pension loss. On that approach, the right to seek a further award of damages would continue for 25 years, up to the pursuer's normal retiral date. A second alternative would be to award provisional damages, to cover past and future solarium, past and future loss of earnings, loss of employability and pension loss. The right to seek a further award of damages would be limited to the right to seek an additional award of solatium and, if appropriate, loss of earnings. The right could be exercised if the pursuer's osteo-arthritis had developed to such an extent that he had been medically advised to undergo an operation for a left knee replacement. On this alternative basis, the right to seek a further award of damages should be without limit of time.

[15] In support of those submissions, counsel for the pursuer referred me to White v Inveresk Paper Co. Ltd (No 2) 1988 S.L.T. 2, Prentice v William Thyne Ltd 1989 S.L.T. 336 , Robertson v Bakeries Limited 1991 S.L.T. 434 and Bonar v Trafalgar House Offshore Fabrication Ltd 1996 S.L.T. 548. In doing so, she accepted that there required to be a "clear cut event" or a "clear cut identifiable threshold" to describe the stage at which the right to seek an award of final damages could be exercised. She also acknowledged that she was unable to place before the Court any authorities, in which an order, allowing a pursuer to return to court for a further award of damages, had been without limit of time.

[16] Counsel for the defenders opposed any award of provisional damages. She pointed out that the pursuer's case for provisional damages was pled on the basis that the pursuer would develop osteo-arthritis in 10 -15 years. In evidence, however, both orthopaedic surgeons had said that the pursuer was already displaying the early signs of osteo-arthritis, albeit that neither party had led any evidence as to whether the condition had progressed to the extent that arthritic changes in the pursuer's left knee were detectable on X-Ray examination. Therein lay one of the problems the pursuer faced in seeking provisional damages. In the light of the evidence given by both orthopaedic surgeons, the issue had become not whether the pursuer will develop osteo-arthritis, but whether the osteo-arthritis, from which he already suffers, will develop into frank osteo-arthritis and to an extent that the pursuer's way of life is significantly curtailed. The situation was therefore different from that in Robertson v Bakeries Limited, which was the only reported case in which a pursuer, who was liable to develop osteo-arthritis, had been awarded provisional damages. In the present case, accordingly, the agreement between the orthopaedic surgeons that the pursuer already suffers from osteo-arthritis was sufficient to preclude any award of provisional damages.

[17] Counsel for the defenders also argued that both of the cut-off points suggested by the pursuer - ill-health retirement and the receipt of advice to undergo knee replacement - were subjective. Neither would provide a proper basis for defining when the pursuer had suffered a serious deterioration in his physical condition for the purposes of section 12 (1)(a) of the1982 Act. In this regard, reference was made to Opinion of Lord Murray, pages 3L, 4L, 5G-H and 5K in White v Inveresk Paper Co. Ltd (No 2), the Opinion of Lord Dervaird in Prentice v William Thyne Ltd, page 337 E-F, Duffy v Lanarkshire Health Board 1999 S.L.T.906, per Lord Johnston at page 908H and Wilson v Ministry of Defence [1991] 1 All.E.R.638 at pages 641e and

642d-h.

[18] Finally, on this branch of the claim for damages, counsel for the defenders argued that having regard to the footballing injury the pursuer had sustained, the pursuer had not been able to prove that the accident in Longannet on 20 December 1996 had caused the existence of any risk that he will suffer a serious deterioration in his left knee in the future. The submission was, that put at its highest, all that the medical evidence proved was that the accident at Longannet had materially contributed to the any risk of the pursuer suffering a development of the osteo-arthritis from which he apparently now suffers. It was argued that establishing a material contribution to the risk of the pursuer's physical condition deteriorating was not sufficient to satisfy the test laid down by the provisions of section 12(1)(a) of the 1982 Act. Before the pursuer could be awarded provisional damages, he required to prove that the Longannet accident was the sole cause of any risk that he might suffer a serious deterioration in his physical condition.

[19] Having regard to the evidence I heard, I am quite satisfied that this is not a case in which it would be appropriate for me to make an award of provisional damages. In my opinion, there is force in at least the first two grounds upon which the defenders oppose such an award. Albeit that this is an Optional Procedure case, I do not consider that I can ignore the fact that the pursuer came into court arguing that there is a risk that in 10-15 years time the pursuer will develop osteo-arthritis in his left knee. That was the position set out in the summons and at least the first of the medical reports in the name of Mr Marks. Much more importantly, however, I am not persuaded that either of the "cut-off events" suggested by the pursuer, the need to take ill health employment or the receipt of advice to undergo a knee replacement operation, would provide an appropriate threshold for seeking a further award of damages. Such a threshold is necessary for the application of the provisions of section 12. The requirement to take ill-health retirement would involve subjective considerations, at least from the standpoint of the pursuer. Moreover, it is not clear whether such retirement would require to be from his present employment or from any other employment he might subsequently hold. If the former, the possible application of the threshold would be dependent on the pursuer's present occupation remaining open to him. In either situation, the timing of ill-health retirement might be dependent on the attitude of the pursuer's then employers. Their attitude, for example, to identifying the availability of lighter work for the pursuer or to determining the financial terms on which retirement could be taken, might have a material bearing on whether, and if so when, ill-health retirement occurred. Such a threshold does not appear to me to be what Parliament envisaged when section 12 of the 1982 Act was enacted. Likewise, I am not persuaded that the receipt of medical advice to undergo a knee replacement operation would be an appropriate threshold. The evidence of Mr Marks and Mr Mackay disclosed a considerable divergence of views amongst orthopaedic surgeons as to whether, and if so at what age, those who suffer from osteo-arthritis in their knees should undergo knee replacement. In such circumstances, it would be perfectly possible for differing views to be expressed as to whether the pursuer should undergo a knee replacement operation. Importantly, it was the receipt, and not the following of that advice, which was suggested as the event that would trigger the right to apply for further damages under section 12(2)(b) of the 1982 Act. Moreover medical thinking on the desirability and timing of such operations might evolve over the next 10-20 years. At this stage, there is no way of knowing whether in general terms that would tend to accelerate or delay the date at which this alternative threshold would be liable to be met.

[20] For these reasons, it is unnecessary for me to express any view as to the third of the grounds upon which the defenders opposed an award of provisional damages, namely the fact that any risk of serious deterioration in the pursuer's left knee is caused, in part, by the injuries the pursuer sustained when playing football in May 1994. As I have indicated, that was a matter of agreement between the two orthopaedic surgeons who gave evidence. The defenders' argument was that pursuer could not satisfy the provisions of section 12(1)(a), which require him to establish that there is a risk that at some definite or indefinite period time in the future he will as a result of the defenders' negligence and breach of statutory duty develop some serious deterioration in his condition. It was submitted on behalf of the defenders that the evidence before me was that such a risk existed before the accident in Longannet, no matter to what extent it had been increased by the latter accident. This argument raises interesting questions as to the correct construction of section 12(1)(a) of the 1982 Act. It is not necessary for me to resolve them, in the present case. Nor, having regard to the particular facts of this case would be it be appropriate for me to express any tentative views on the questions involved. For the reasons, I have already expressed, I am satisfied that this is not a case in which there should be an award of provisional damages.

[21] I turn, therefore, to assess damages on a once and for all basis. In doing so, it would be helpful to summarise the position as disclosed by the evidence. The pursuer gave detailed evidence about the pain and discomfort he suffered, following the footballing accident in May 1994 and since the accident in Longannet on 20 December 1996. After his footballing accident in May 1994, the pursuer was off work for three days. Although the pain in his left knee settled within a couple of weeks, it reoccurred. He consulted his general practitioner and was referred to the Victoria Hospital, Kirkcaldy. In February 1995, the pursuer underwent a partial menisectomy in February 1995, which disclosed that the pursuer had sustained a vertical or "bucket handle" tear of his left medial meniscus. This operation necessitated a further two or three weeks' absence from work. Subsequently, he undertook physiotherapy. On his return to work, the pursuer resumed working underground. He returned to his normal duties. For the first few weeks, his left knee remained sore. As the weeks went by, the pain subsided. By the autumn of 1995 the pursuer had returned to running and to playing football and golf. He was no longer suffering pain in left knee, nor was the knee affected by stiffness, swelling or locking. That situation persisted until the accident in Longannet on 20 December 1996.

[22] Following the Longannet accident, the pursuer remained off work until after New Year. On his return to work, he was able to arrange a period of 8-10 weeks of lighter surface work, before he returned to work underground. He has worked underground, ever since. On account of pain in his left knee, which developed following the Longannet accident, the pursuer consulted his general practitioner in January 1997. By this stage his left knee was stiff and prone to locking. In February 1997 he was referred to the Queen Margaret Hospital, Dunfermline, where on 12 December 1997 he underwent a left knee arthroscopy. This disclosed that the pursuer had suffered a radial tear in the left medial meniscus. The tear was trimmed. He underwent further physiotherapy. By June 1998, his left knee had settled down. The pain in his knee disappeared. He was able to walk indefinite distances, although he did not return to football. He still felt that his left knee was not quite right. He had also received medical advice to the effect that were he to suffer any further twist to his left knee, his knee would be "finished". Nor did the pursuer resume playing golf. After the second operation the pursuer rejoined the Mine Rescue Team at Longannet. However, the improvements in the condition of the pursuer's left knee did not persist. By the end of 1998, problems with his left knee began to re-emerge. He suffered episodes of instability in his left knee, when rising from a crouched position. He experienced pain in his left knee after walking significant distances, over rough ground or downhill. Crouching and heavy lifting increased the level of pain. His knee was painful, virtually every day he was at work. He began to feel that his knee was "done in".

[23] Those problems continue, even after the pursuer's promotion to Inspector/Supervisor in February 2000. In his new post, the pursuer does not require to use tools. Very little crawling, crouching or climbing is required. More underground walking is involved. Sometimes the pursuer requires to walk for 5 hours out of a 7 hour shift. Much of that walking is over rough terrain. As I have already noted, the pursuer gave evidence that it is walking along the roadways of the mine that is the main cause of the pain, from which he suffers. The less walking he has to do, the less pain that he suffers. In cross-examination, the pursuer disputed that he was exaggerating the pain from which he suffers. He denied the suggestion put to him that on the vast majority of the days he was working, he was able to do so without experiencing significant pain. On the contrary, he stated that when he required to walk throughout his shift, he was in constant pain. He thinks that his left knee is deteriorating and that eventually he will no longer be able to continue working underground. However, he has persisted at his work, which he enjoys. He stated that he has recently purchased a new house and cannot afford to take time off. He does not use pain-killers or anti-inflammatory tablets, on account of their side effects.

[24] The pursuer impressed me as being a credible and reliable witness. During the course of the evidence, it was tentatively suggested on behalf of the defenders that the pursuer may not suffer as much pain as he complains of. Reference was made to the pursuer's continuing membership of the Mine Rescue Service and to the fact that since his return to work after the operation in December 1997, the pursuer has not required further absences from work. During the evidence of the pursuer, I had no impression that he was exaggerating the physical problems he has experienced since the accident on 20 December 1996. On the contrary, the pursuer struck me as a hard-working individual, who had returned to work as soon as possible after the accident in December 1996 and the subsequent operation in December 1997. A consideration of the other evidence in the case, and in particular the medical evidence, has not caused me to alter that view. The pursuer's current complaints are entirely consistent with the onset and gradual progression of post-traumatic osteo-arthritis, which both orthopaedic surgeons consider the pursuer to be suffering from.

[25] As I have already indicated, one of the main issues between the orthopaedic surgeons was whether the pursuer will ultimately become unfit to work underground. According to Mr Marks, that will occur if the pursuer develops "frank" osteo-arthritis, which as I have indicated he defined as osteo-arthritis causing significant pain in the pursuer's left knee. Mr Marks indicated that if frank osteo-arthritis develops, such pain would be present even upon minor exertion and that it would limit the pursuer's activity. He considered there was a 75% risk that such a level of pain will occur within 10-15 years of his giving evidence in July 2000. Mr Mackay, as I have indicated, did not seriously disagree with that assessment. He had stated as much in a Report dated 17 August 1999, which was lodged as a production on behalf of the defenders, and he confirmed his agreement with Mr Marks, during his cross-examination. Where the orthopaedic surgeons parted company, however, was on the issue of whether the development of frank osteo-arthritis would render the pursuer physically unfit to work underground. Mr Marks considered that if frank osteo-arthritis developed it was more likely than not that the pursuer would require to give up underground working. Indeed he doubted that the pursuer would be fit for any form of heavy manual work, particularly one involving awkward crouching or kneeling. Mr Mackay, for his part, expected that even if the osteo-arthritis in the pursuer's left knee develops to a degree that will cause the pursuer significant pain, the pursuer will be able to work underground until the normal retiral age in the coal industry, namely 62. Whilst he anticipated that the pursuer will probably suffer from significant pain, he considered that the pursuer could deal with that pain by taking painkillers and anti-inflammatory drugs. On the basis of his understanding of the pursuer's current duties, he felt that the pursuer could continue to undertake those duties. He accepted, however, that the pursuer would become unable to undertake work that involves substantial kneeling and crouching.

[26] There is no way of reconciling the competing evidence I heard on whether the pursuer will remain fit to work underground. On this particular issue, I must choose between the evidence of Mr Marks and Mr Mackay. I prefer that of Mr Marks for a number of reasons. Mr Mackay only examined the pursuer on one occasion. When he did so, on 17 June 1999, he had no medical records before him, apart from a copy of a report dated 11 December 1998, prepared by Mr Marks. Moreover, during that examination Mr Mackay was only able to obtain a partial history from the pursuer, as to the pursuer's recovery from the footballing accident and the circumstances and consequences of the accident in Longannet. Whilst that was partly because of the instructions the pursuer had received from his solicitors, to the effect that he should not discuss the circumstances of the Longannet accident with Mr Mackay, those instructions do not explain why, for example, Mr Mackay had not been able to discover that the pursuer's recovery after the footballing accident was such that he was able to return to playing football. Accordingly when he was forming his initial views as to the prognosis for the pursuer's left knee, Mr Mackay had incomplete information before him. Mr Marks, on the other hand, examined the pursuer on two occasions, the second of which was only 4 months before he gave evidence. In giving evidence, Mr Marks appeared to me to have a fuller understanding of the pain from which the pursuer claims to be suffering when he is at work, complaints which I accept as genuine. Moreover, I have doubts whether it was realistic for Mr Mackay to suggest that the pursuer could cope in the long term, with increasing levels of pain in his left knee, by taking anti-inflammatory tablets and painkillers. In re-examination the pursuer indicated that his experience of taking painkillers and anti-inflammatory tablets has been that they do not agree with him. They affect his bowels. In any event, I would be surprised if the defenders would be entirely content with men, who work underground, requiring to take regular medication to cope with physical pain that might interfere with their ability to carry out their duties and pose a risk for the safety of the men themselves and their fellow employees. On a more practical level, having accepted the evidence the pursuer gave about the problems he increasingly experiences with his left knee and bearing in mind the nature of his duties as an Inspector/Supervisor, I regard Mr Mackay's view that the pursuer will be able to work underground until he is 62 to be unrealistic. In these circumstances, as Mr Mackay agrees with Mr Marks that there is a 75% risk of the pursuer's osteo-arthritis developing to an extent that will cause the pursuer significant pain and a measure of disability, I hold, on the basis of the evidence that I have heard, that the pursuer will probably require to give up working underground within 10-15 years from July 2000, which was when both orthopaedic surgeons gave their evidence.

[27] As far as solatium is concerned, the pursuer's counsel sought an award of £16,000, whilst the defenders suggested £3,000. The submission on behalf of the pursuer was illustrated by reference to the Judicial Studies Board Guidelines, Mearns v Lothian Regional Council 1991 SLT 338, MacShannon v Ailsa Perth Shipbuiders Ltd 1994 SLT 500 and Connor v Secretary of State for Scotland 2000 Rep L R 18. The submission on behalf of the defenders was supported by reference to White v Inveresk Paper Co. Ltd (No.2) 1988 SLT 2. It was contended that Whyte indicated a figure of £5000, which fell to be discounted to £3000, by reason of the fact that only part of the pain which the pursuer now suffers and which he may suffer in the future is attributable to the accident in Longannet. That divergence of submissions as to the appropriate figure for solatium was indicative of the lack of agreement between the parties as to the elements of the quantum of the pursuer's claim.

[28] In my opinion, an appropriate figure for solatium is one of £12, 000. At the time of the Longannet accident the pursuer left knee was pain free. In the accident he sustained a medial tear, which required him to undergo an operation. The pursuer now suffers from osteo-arthritis in his left knee. He will continue to suffer from that condition for the rest of his life. That condition is progressive. Since the end of 1998 that osteo-arthritis has caused the pursuer pain in his left leg. That pain has increased in intensity with the passage of time. It troubles the pursuer at work, on a daily basis. It has prevented the pursuer from pursuing his sports of football and golf. It is probable that pain will increase in intensity. Linked with that pain, the pursuer's left knee is stiff and unstable. It is possible, although by no means certain, that the pursuer may require further operative treatment in the future, although the prospects of the pursuer undergoing a knee replacement operation within the next twenty years appear remote. On the likelihood and timing of any such operation, I preferred the evidence of Mr Mackay. His explanation of the technical complexities of knee replacement, and of the risks associated with the operative treatment involved, provided ample justification for his opinion that the pursuer is unlikely to be offered a knee replacement until his mid-to-late fifties. In my opinion, the Longannet accident caused a serious injury to the pursuer's left knee, which will have significant and permanent consequences for the pursuer. I apportion the figure for solatium, one third to the past and two thirds to the future.

[29] In my opinion, the award for solatium does not fall to be discounted, by reason of the injury the pursuer sustained in the footballing accident in 1994. This is not a case in which the defenders sought to establish, in evidence, that all that the accident on 20 December 1996 had caused was an exacerbation of a pre-existing condition or the acceleration of the onset of a condition, that would in any event have occurred, irrespective of the occurrence of the accident. Whilst both orthopaedic surgeons were agreed that both accidents had contributed to the risk of the pursuer suffering from osteo-arthritis in his left knee, neither suggested that condition had developed by December 1996. Indeed, an X-Ray of his left knee taken 21 January 1997 showed no significant bone or joint abnormality. The highest that the defenders' counsel put it in submissions was that the evidence supported a finding in fact that if there had been no second accident the risk of the pursuer developing frank osteo-arthritis, within 10-15 years, would have been between 40-50%. Having regard to what both orthopaedic surgeons said about the difficulties of assessing, in percentage terms, the risk of the pursuer developing osteo-arthritis and the respective contributions of the two accidents to that risk, I would be reluctant to place too much reliance on the specific figures that each surgeon gave. Suffice it to say, even if I had accepted the submission advanced by counsel for the defenders, which I do not, the defenders would not have established that it was more probable than not that the pursuer would have developed osteo-arthritis had the accident of 20 December 1996 not occurred. In my opinion, such a finding in fact would be essential, before the defenders could successfully argue that all the second accident did was to accelerate the onset of osteo-arthritis (or exacerbate pre-existing osteo-arthritis). The defenders have to take their victim as they find him. On account of the footballing accident, the pursuer lost part of the medial meniscus in his left knee. He was at risk of developing osteo-arthritis in his left knee. It was not proved that he had developed osteo-arthritis by the date of the Longannet accident. Whatever the respective percentage contributions of the two accidents to the risk of any deterioration in his physical condition, which the pursuer has faced since the accident in Longannet on 20 December 1996, the evidence I heard did not establish that the pursuer would have developed osteo-arthritis as a consequence of the first accident alone. In the whole circumstances, therefore I make no discount from the figure I have determined for solatium.

Past Loss of Earnings

[30] I am grateful to counsel to be able to record that past loss of earnings were agreed at £1050, inclusive of interest to the date of decree

[31] The position with regard to future loss of earnings is complicated for a number of reasons. At the time of the accident the pursuer was employed as an underground electrician. He is now employed as a Supervisor. There was unfortunately, if possibly understandably, no agreement between the parties as to the elements in, let alone the general approach for assessing, any award for future loss of earnings. At the date when the pursuer gave evidence his average earnings over a three-month period were £518 gross/£359 net per week. There was also evidence that out-bye underground workers currently earned an average gross wage of £566 per week, whilst surface electricians averaged £460 per week. The pursuer also led evidence from Peter Kelly of the Scottish Low Pay Unit based on the Government's New Earnings Survey 1999. That was to the effect that in 1999 the average gross earnings in Fife were for (a) non-manual male workers £468 per week, (b) manual male workers £318 per week, (c) male workers £382 per week and (d) electricians and electrical maintenance fitters £425 per week. Mr Routledge, the witness who was present at the time of the accident, has now left mining and is employed by BT in Fife. His job involves some kneeling and climbing ladders. He earns a net wage of £16,000 per annum, £ 307 per week.

[32] From all that evidence, it would appear that if the pursuer becomes unfit to work underground, but is able to obtain work as an electrician, outwith the mining industry, he will suffer a continuing loss of earnings in the region of £70 per week net per week, based on current wage rates. Such a loss assumes that the pursuer could attain the average earnings of electricians in Fife, which are slightly lower than those of Mr Routledge, who is fit to undertake more kneeling and climbing of ladders than the pursuer is capable of.

[33] During the pursuer's evidence, it was clear that the pursuer had not given much consideration to what he would seek to do, were he to cease working underground. He indicated, however, that he thought that he would be fit to work as a maintenance electrician, working in offices or public buildings. As far as surface work is concerned, the opportunities at Longannet are limited. There is only one electrician, who works on the surface of the mine on a full-time basis. Accordingly, if the pursuer becomes unfit to continue working underground, the probabilities are that if he wishes to work as an electrician, he will require to seek employment outwith the coal industry. In his evidence, the pursuer made clear that currently he would be fit for certain of the duties, which maintenance electricians undertake. He explained, however, that he no longer feels confident in his knee and for that reason would be unable to climb ladders or work at heights. Crouching and getting up and down on his knees also cause pain. In these circumstances, he considers that when he leaves the mining industry, as he believes he will require to, he will have to look for some office or workshop based employment. He has not really thought much about what he will do, because he is endeavouring to stay in the employment of the defenders for as long as he can. The medical advice he has received is to the effect that he will not be able to continue working underground for more than 10-15 years. He will seek alternative employment when he has to.

[34] Against that background, how are damages for future loss of earnings to be assessed? Counsel for the pursuer argued that this head of loss should be calculated by assuming that the pursuer would lose his job when he was 47 1/2 years of age, halfway through the 10-15 period from the date when the orthopaedic surgeons gave evidence. From that age, the loss recoverable should be based on a multiplicand, based on the pursuer's current earnings, and a multiplicand, assuming retiral at 60. The resultant figure would fall to be discounted for early payment, under reference to the appropriate Ogden Table, and reduced by one-third to take account of the possibility of the pursuer obtaining some alternative employment between the ages of 47 1/2 and 60. On that approach, calculations bringing out figures in the region of £80,000-£90,000 were tendered. The defenders' primary position was that future loss of earnings should be limited to a lump sum award, with the figure of £5,000 being suggested. Very much as a fallback position, counsel for the defenders submitted that any calculations calculated by means of a multiplier and a multiplicand, should take as the multiplicand a figure of £2,000. It was submitted that was the difference between the pursuer's current net earnings and the net earnings the pursuer could expect to earn, were he to obtain light work, including work as a maintenance electrician, at the present time.

[35] Parties were also in dispute as to the discount rate I should employ, in applying the Ogden Tables. The pursuer's counsel argued for 2.5%, based on the evidence of Tom Smith, an actuary with Aon Consulting, who gave evidence in connection with the claim for pension loss. Counsel also founded on the published tables as to the gross rates of return on index-linked government securities, which are to be found in Kemp & Kemp and other publications. Reference was made to Barry v Ablerex Construction (Midlands) Limited [2000] P.I.Q.R. Q263, in which Latham J. adopted a discount of 2%, in light of the significant drop in the rate of return on index-linked government stocks in the three year period preceding the proof before him and the three year period preceding the decision in Wells v Wells [1998] 1 A.C. 345. Counsel for the defenders argued for the use of the 3% discount rate adopted in Wells. In support of that submission I was referred to the recently reported decision of Lord Philip in Macey-Lillie v Lanarkshire Health Board 2001 SLT 215 and to a recent, but unidentified, decision of the Court of Appeal in England, which my researches indicate must be Warren v Northern General Hospital Trust [2000] P.I.Q.R. Q 284. I need not rehearse in detail what was said by the judges in either of those cases. Suffice it to say, that I adopt a similar approach to Lord Philip. It has not been proved to my satisfaction that there has been a marked change in economic circumstances that would warrant departing from 3%. As did the members of the Court of Appeal in Warren, I take the view that the reduction in the rate of return on index-linked government stocks, which has occurred since the House of Lords decided Wells, is not on its own sufficient proof of a change in economic circumstances that would warrant a reduction in the discount rate.

[36] Having resolved that particular issue, I now turn to my own assessment of future loss of earnings. In my view, it should be calculated on the basis that the pursuer will require to give up his employment in the mining industry by the age of 471/2 . That is approximately mid-way through the 10-15 year period to which the orthopaedic surgeons referred, when giving evidence. On the basis of the evidence I have heard, from the pursuer, the orthopaedic surgeons and the other witnesses conversant with the pursuer's working conditions, I take the view that it is more probable than not that the pursuer will no longer be fit to work underground by the time he reaches 47 1/2 years of age. My assessment of the pursuer is that he will keep working with the defenders for as long as he can. Nevertheless, having regard to the level of pain, which the pursuer presently suffers in his left knee, the degree of instability that already affects his left knee, the manner in which osteo-arthritis is liable to progress, as the years go by, and the medical evidence I heard, it has been proved to my satisfaction that it is more probable than not that the pursuer will become physically unfit to work underground by the summer of 2012.

[37] It has not been proved to my satisfaction that the development of frank osteo-arthritis, as that term was used in evidence, will render the pursuer unfit for any form of employment. On the contrary, the pursuer himself considers that if he requires to leave the mine in the immediate future, he will remain fit to work as a maintenance electrician. The pursuer has many years of experience as an electrician. Over the years he has also acquired a number of British Technology Education and HNC qualifications in electrical engineering. In my opinion, if he requires to leave the mining industry, it is likely that he will seek work as an electrician. In the face of all the evidence that I heard, I consider that the approach suggested by the pursuer's counsel, of proceeding on the basis of a multiplicand related to a total loss of earnings was unrealistic, even allowing for the one-third discount from the total figure that she conceded. On the other hand, I agree with her that it would be unrealistic to take account of the earnings of surface electricians at Longannet, for the reason that there is only one electrician that works full-time on surface work. Nor I am prepared to adopt the lump sum approach advocated by the defenders' counsel. The information is available to proceed by means of multiplier and multiplicand and I see no reason for not doing so.

[38] I take as the multiplier £3,640, the annual differential between the pursuer's current net earnings and those he could currently expect to earn, from light work as an electrician in Fife. The multiplier falls to be calculated by reference to Table 5 and Table B in Para. 38, leading to a figure of 8.91. The loss of £32,433, thereby calculated, requires to be discounted for early payment. This can be done under reference to Table 37. The pursuer is now 36 1/2 years of age. Discounting for accelerated payment by 11 years, at a discount rate of 3%, involves multiplying £32,433 by a factor of 0.7224. That reduces the figure for future loss of earnings to £23, 429, which I round up to £23,450

Pension Loss.

[39] I turn finally to pension loss. Parties were agreed that Cantwell v CICB 2000 SLT 956 is binding on me, albeit that decision of the Inner House is currently under appeal to the House of Lords. Accordingly in calculating pension loss, I must leave out of account any ill-health pension the pursuer will receive from the defenders, whether before or after his normal pension date.

[40] On the issue of pension loss, I heard detailed evidence from Mr Smith, the actuary to whom I have already referred, and, on behalf of the defenders, from Denis Blyth, the senior partner of a firm, Blyth Associates, which provides litigation support to parties involved in personal injuries litigation. Mr Blyth is a Fellow of the Chartered Institute Insurance Institute and had a long history of employment within the insurance industry, before he set up his firm in 1997. Once again there was considerable dispute between the parties as to how the loss suffered by the pursuer should be calculated. Mr Smith is his report set out a variety of calculations, some calculated in accordance with his firm's preferred actuarial method, others based on the approach favoured by Lord Clyde in Mitchell v Glenrothes Development Corporation 1991 SLT 284 and yet others based on the Ogden Tables. The calculations related to projected retiral dates of 24 August 2010 and 24 August 2015. Mr Blyth, for his part, produced a report with calculations to the same dates, which were based on calculations with the assistance of the Ogden Tables.

[41] For reasons I have already explained, I have assessed future loss of earnings on the basis that the pursuer will leave the employment of the defenders when he attains 47 1/2 years of age. It is logical that I approach loss of pension on the same basis. Unfortunately, neither of the sets of calculations spoken to by Mr. Smith and Mr. Blyth provide a complete answer to the pension loss that will be incurred as at the date. There are further complications, in that Mr Smith used a discount rate of 2.5%, which I have already rejected for reasons that I have explained. In evidence, Mr Smith explained that had a discount rate of 3% been used, the figures he calculated would require to be reduced by 15%. It was also acknowledged, on behalf of the pursuer that Mr Smith's calculations, ought to subject to a 4% discount, to take account of economic imponderables. According to the pursuer's counsel, that would reduce the pension loss, calculated by the Aon preferred actuarial method, to £50,103, if the retiral was at 45, and to £34,851, if the retiral was delayed until the pursuer was 50. Both figures made allowance for pre-retirement mortality. They did, however, include an element for the value of the contingent widow's pension.

[42] Mr Blyth's calculations use a discount rate of 3%. They leave out of account any loss of the contingent widow's pension, on the basis that is not a loss incurred by the pursuer. They assume that the beneficiaries under the pension scheme will take the maximum tax-free lump sum available to them, as soon as it is possible for them to do so. Based on the pursuer's final pensionable salary, increasing each year at 11/2% per annum in advance of retail price inflation (an assumption which accords with Mr Smith's view as to what is liable to happen), Mr Blyth calculated the pension loss for retiral at 45 as £34,780 and at 50 as £ 24,400.

[43] In my opinion, in the circumstances of this case, the correct course of action for me to follow is to base the award for pension loss on the evidence given by Mr Blyth. I do not of course exclude the possibility of actuarial calculations providing the answer to a dispute as to pension loss in personal injuries cases. In the present case, however, I agree with counsel for the defenders that loss of the contingent widow's pension requires to be left out of account. That being so, I have no means of recalculating the figures set out in Mr Smith's report. On the other hand, I can base my assessment of the pursuer's pension loss, as at 47 1/2 years of age, at the midpoint between £34,780 and £24,400, namely £29,590. It was not suggested by the defenders, nor was there any evidence upon which I could hold, that after the pursuer leaves the employment of the defenders, his employment will probably be pensionable. The calculation of pension loss carried out by Mr Blyth included a discount for early payment. Accordingly no further deduction is required.

[44] On the evidence that I heard, I am not persuaded that it is appropriate to award the pursuer a further sum for loss of employability. Obviously the pursuer may be at somewhat of a disadvantage on the labour market, when he leaves the employment of the defenders. On the other hand, the determination he has shown in returning to work after both accidents and both operations is liable to remain with him and will undoubtedly assist him in seeking and retaining employment.

[45] In the whole matter, therefore, I award damages of £12,000 for solatium, £1050 for past loss of earnings, £23, 450 for future loss of earnings and £29,590 for loss of pension. Interest will run at 4% per annum on past solatium from the date of the accident until the date of decree. From the date of decree, interest will run at 8% per annum on all the sums awarded, until the date of payment.