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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McDyer (AP) v Celtic Football & Athletic Club & Ors [2001] ScotCS 25 (6 February 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/25.html Cite as: [2001] ScotCS 25

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[1] The pursuer attended an event at Celtic F C 's ground at Parkhead, Glasgow on 21 January 1990. The event was the opening ceremony of the European Summer Special Olympic Games; it was organised by the second defenders. The pursuer was accompanied by his wife. They had applied for and obtained tickets for entry to the event. The tickets had been issued by the second defenders or their authorised agents. The pursuer went to the West terracing. There was a perimeter fence at the foot of the terracing. The pursuer sat on that fence. At about 1.30 pm a piece of freshly sawn timber, about two feet or so in length, fell from the front of the canopy overhanging the West terracing and struck the pursuer causing him injury.

[2] The piece of timber is said to have come from the canopy where it is said to have been used in connection with the attaching to the front of the canopy of temporary hanging banners provided as part of the decorations. There were other temporary structures at ground level, including a stage and some mock Grecian columns. There were also some flags on flagpoles, which were standing on bases resting on the ground. I shall deal at once with the suggestion that the piece of timber might have come from a flagpole rather from the canopy. The flagpoles to which the flags were attached were at a height of no more than 15 feet. There was no evidence whatsoever to suggest that there would be a piece of freshly sawn timber some two feet long used in connection with any of the flagpoles or indeed that it could have any function in connection with a flagpole. In any event it appears to me highly unlikely that if the timber had fallen the relatively short distance from one of the flagpoles it could have reached a sufficient speed to inflict the injury that it did inflict on the pursuer; that injury was sufficient to stun him and knock him to the ground. I conclude that the timber that hit the pursuer could not have come from a flagpole or its base. In evidence and in her submissions Ms Carmichael for the second defenders suggested that the timber had come from a flag or flag pole; she did so upon the basis of the letter no 48/8 of process written by the pursuer on 24 July 1990, where he refers to a flag. In evidence he said he was referring to one of the banners. I accept his evidence in this respect; I think he just used the word "flag" to mean "banner". I am not sure that either "flag" or "banner" properly describes the hanging bunting. A "flag" is usually attached by a cord to a pole that may be vertical or angled. A "banner" is often carried aloft by being suspended from a pole. The so-called "banners" here were large strips of material with some slogan or device on them. They may be seen in some photographs, in no. 48 of process. It is understandable that the pursuer used the word "flag", for neither "flag" nor "banner" is entirely apt; but I accept, as he said, that he was referring to the vertical bunting, hereinafter referred to as banners. The banners were apparently made of some fabric and hung down from the canopy to which they had been attached by some means not described in evidence by anyone who claimed to know; (the photocopies of the photographs, which was all that we had, were of poor quality). The canopy was well over 30 feet above ground level; the exact height was not established. The pursuer himself had considerable experience both in ordinary joinery work and in designing and fitting joinery fabrications. He was able to say that, for a job such as attaching substantial banners to the canopy above the West terracing, it would be quite usual to use cut timber. The timber, cut to size, would be slotted into a seam created by folding the top of the banner over itself and then sliding the timber in, as with a curtain rail. Some form of screw or bolt might then be passed through both the seam and the wood, and that would then be attached to the canopy. Whatever the detail, the piece of timber would be used to secure the top of the banner to the edge of the canopy. The exact location of the banners is shown in the agreed plan, no. 48/3 of process. The banners reached down to within a few feet of the ground level on which the perimeter fence stood. They were apparently also attached near ground level by some form of guy rope. The part of the canopy to which the banners were attached was not made of timber, or at least not of the kind of timber that struck the pursuer. The evidence of Mr Tom Grant, a director of Celtic at the time and the stadium director, was that there was no timber used as part

The basis of the pursuer's case.

[3] The pursuer seeks damages in respect of the loss injury and damage that he sustained as a result of being struck. The pursuer's case of breach of section 2 of the Occupiers' Liability (Scotland) Act 1960, rests on the application of the principle of res ipsa loquitur. Both Lord Macfadyen and the judges of the First Division when considering the relevancy of the pursuer's case quoted with approval Lord Maxwell's observation in Murray v Edinburgh District Council 1981 S.L.T. 253:' 'The principle [ of res ipsa loquitur] only applies where the incident suggests negligence on someone's part and, because of exclusive management and control in the defenders at the time or times when the negligence occurred, it can be presumed that it was the defenders who were negligent.' In the present case, the incident itself strongly suggests negligence on someone's part, because the falling of a substantial piece of freshly sawn timber from the structure whereby the hanging banners were very recently attached to the overhead canopy yields the obvious inference that the piece of timber had been insecurely attached to the canopy as part of an inadequate attempt to use the timber to help to fix the top of a hanging banner to the canopy securely. To leave such a piece of timber inadequately secured and liable to fall, in a place below which persons, whether spectators, officials or others, might be walking or sitting, is to expose such persons to the risk that it might fall and injure them. The danger to such persons in such a situation is obvious and unnecessary. The creation of such a danger is eloquent of negligence on the part of the person responsible for originally taking the timber to the canopy and leaving it there; for there is nothing to suggest that any happening or person was responsible for detaching or otherwise interfering with the piece of timber after it had been left there by whoever put it there. On the contrary, there is uncontradicted evidence that there was no significant wind at the material time; and there is no evidence that at or about the material time any persons had access to the part of the canopy from which the timber fell. It appears to be certain that, as the putting up of the banners was part of the work of preparing for the opening ceremony, whoever attached the banners to the canopy must have known that persons might at some stage pass below the banners. It follows that, if the pursuer is able to show who had the exclusive management and control of operation of putting the timber in place in order to secure a banner, and also to show that, from the time when the timber was placed there until the time when it fell, no one else had access to the place where the timber was attached, the principle of res ipsa loquitur would apply and would point to negligence on the part of whoever had such exclusive management and control of the building and placing of the contraption from which the piece of timber fell.

[4] The first real issue in the case as originally pled was, therefore, whether or not the evidence would show which, if either, of the defenders had the exclusive management and control of the site from which the piece of timber fell. The first defenders, Celtic Football Club Ltd,(Celtic) were sued as owners and usual occupiers of the stadium. In their defences they averred that the second defenders were the occupiers of and were in control of the premises at the material time and were responsible for the erection of certain temporary structures and in particular for the putting up of the banners; the second defenders denied these averments. Their general denial included a denial of an averment for the first defenders that 'The work which caused any piece of wood to fall and to hit the pursuer ....was carried out by an independent contractor employed by the second defenders. Said work was carried out immediately prior to the opening ceremony'.

[5] At the start of the second day of the Proof, while the pursuer was giving evidence but before the completion of that evidence, and before any significant evidence had been adduced on the issue of who had management and control, the pursuer and the first defenders reached an agreement, incorporated in a Joint Minute, that the first defenders should be assoilzied from the conclusions of the summons. As the motion to give effect to that agreement was unopposed, it was granted; and the first defenders ceased to take part in the proceedings. That gave rise to the possibility, which was raised at the time, that it might be appropriate for the pursuer to seek leave to amend the pleadings to reflect the new situation. Neither the pursuer nor the second defenders sought leave at that stage to have any amendment made; and the evidence of the pursuer continued.

[6] On the morning of the third day of the Proof counsel for the pursuer sought leave to amend the Closed Record by inserting the words, ' or if the action against the first defenders is abandoned' after the word 'stadium' in line 3 on page 13 and also after 'denied)' in the third line of Condescendence 4. He said that the purpose and effect of the amendment was to show that there was 'a free-standing case ' against the second defenders. The motion to amend was opposed. I refused to allow the amendment because it appeared to me to be virtually meaningless, given that it was a fact known to and sanctioned by the court's interlocutor that the action against the first defenders had already been abandoned; and that accordingly the amendment proposed could not be regarded as 'necessary' in terms of Chapter 24 of the Rules of Court. I delivered no opinion at that stage as to whether the pursuer's pleadings as they stood stated a 'free-standing case' against the second defenders. The proceedings continued on the basis of the pleadings as they stood at the start of the Proof when the first defenders were still in the action.

[7] When the pursuer's evidence resumed, it was suggested to the pursuer in cross-examination for the second defenders that there was something such as a blue tape or rope to fence off the area where he was when he was struck, or to show that it was an area into which the public were to be prevented from entering. He could not confirm this. I deal with this here, to clear it out of the way. The second defenders aver that Celtic were providing security services on the day in question, the implication being that the first defenders should have kept the public, including the pursuer, away from that area. Evidence on this point came from Mr Tom Grant to the effect that there had been some arrangement whereby spectators were to be discouraged from trying to view the ceremony on the temporary stage from the north end of West stand, because they could not obtain a good view of the proceedings on the temporary stage from there. Any attempt by stewards (provided by Celtic) or by the police or others to keep people away from the area immediately beneath the temporary banners was apparently for that purpose, rather than for any safety reason. Indeed Mr Grant thought that one reason for having the banners themselves there was to discourage spectators from going onto the terracing behind the banners. Another was to conceal from television viewers of the event the fact that the terracing of the ground was not full. When she came to make submissions about liability, counsel for the second defenders did not refer to this matter and in particular did not suggest that it had any bearing upon the carrying out of the operation of attaching the banners to the canopy. There was no other evidence about this matter. In these circumstances, in considering the matters relevant to liability, I see no reason to attach any importance to the alleged wish or any measures to keep spectators away from the ground immediately below the banners hanging from the said canopy.

[8] The form and content of the pleadings have given rise to a number of objections and arguments that could have been avoided if the pleadings had been differently framed. The Lord Ordinary' Opinion of 18 July 1997 (at page 48 of the current print of the Record) referred to the circumstance that the cases against the two defenders were really alternative cases; but unfortunately that observation did not prompt the pursuer's advisers to think constructively about the form of their pleadings and to conclude that, once Celtic were out of the case, and assoilzied, the pleadings should be remodelled to state quite unambiguously that the pursuer's position had become that the second defenders alone had the necessary management and control of the part of the stadium where the banners were secured to the canopy. Probably all that was needed was to delete the first 37 words of Condescendence 4, i.e. down to '(which is denied)' and to consider what was to happen to the penultimate sentence of Condescendence 3, which refers to the 'hypothesis that the first defenders were not the occupiers of the said stadium'.

[9] An objection thus came to be taken by the second defenders to the leading of evidence by the pursuer (from the witness Mr Tom Grant when looking at nos. 49/3 and 4 of process) showing or tending to show that the second defenders had possession and control of the ground, and in particular of the hanging banners and the means of attaching them to the canopy, at the material time. The objection was based on the submission that the pursuer's case, as pled, rested upon two hypotheses that were different from each other, and that neither of them had been established in evidence. That objection was renewed when appropriate to cover the leading of any evidence to that effect and, a ruling on it having been reserved, was duly the subject of full submissions after the conclusion of the evidence on the merits of the case. It is appropriate to look at the pursuer's pleadings to assess the objection and related submissions.

[10] What the pursuer avers is mostly contained in the first sentences of Condescendence 4. They read:

The letter dated 1^st August 1990 referred to is one written to the pursuer by Mr Tom Grant (No. 48/9 of process). I had difficulty in detecting where in that letter it is stated that 'the second defenders had control of the premises at the time of the accident'; and counsel for the pursuer could not find such an assertion there either. Nevertheless, and somewhat bizarrely, when counsel for the second defenders sought in cross-examination to put to Mr Grant the fourth paragraph of the letter - which is the only one that might have even a remote bearing upon the issue of control - counsel for the pursuer objected to the line of evidence on the ground that the second defenders had denied on Record the first defenders' averments at pages 14 and 15, being those averments relating to the assertion that the work which caused the piece of wood to fall and hit the pursuer had been carried out by an independent contractor. The sense of having passed through the looking glass with Alice was quite powerful at that stage; but it derived from the maladroit form of the pleadings. Ms Carmichael, for the second defenders, submitted that the pursuer's case was predicated upon 'the hypothesis that [Celtic] were not the occupiers of the said stadium', as averred by the pursuer in Condescendence 3. Yet the evidence of Mr Tom Grant indicated clearly that Celtic had not conceded control of the whole stadium to the second defenders. The result, she submitted, was that the pursuer's case collapsed with the failure to establish the hypothesis. Similarly, the opening averments in Condescendence 4 had not been established: the letter there referred to contained no assertion that the second defenders had control of the 'said premises', namely the stadium. Anyway, the pursuer denied it; and it was absurd to plead a case which was effectively read: 'Esto the second defenders had control, the second defenders had control...' It was, she submitted, impossible to tell what the case against the second defenders was supposed to be. This submission has the advantage of being logical; and it helps to illustrate the pleading weaknesses of the pursuer's case. In my opinion, however, these criticisms have too technical a character. The faults in the way the case is pled are glaringly obvious, but the true character of the case emerges despite all the infelicities. I consider that I have to look at the underlying reality and meaning of the pleadings, whatever I think of their form. Looking at them in that way, I conclude that the pursuer is to be understood as making a case against the second defenders, the case being that at the material time they had the management and control of the part of the premises that included the contraption that had just been erected by the second defender or by their agents in order to hold the hanging banners in place. That contraption included the piece of timber that fell on the pursuer. It had also been made quite clear in the proceedings in the Inner House that the case against the second defenders was based on the application of the principle of res ipsa loquitur. The only possible basis for such a case was that at the material time the second defenders had the management and control of the part of the premises where the timber was used to secure banners and of the operation of securing the banners there. It appears to me that the pursuer's pleadings are adequate, though perhaps barely so, to give notice to the second defenders of that case. In this regard I rely upon the terms of the Opinion of the First Division as delivered by the Lord President, which recognises that the case as then and now pled is such a case.

[11] There is no evidence in this case to suggest that the falling of the piece of timber was caused by some person or event not under the control of the second defenders. Ms Carmichael submitted that there was no evidence that the second defenders put the piece of timber in the place from which it fell. The evidence, however, very clearly points to Celtic's having allowed the second defenders to occupy the stadium for the event that the pursuer was attending and that the second defenders were allowed to adapt the stadium for the purposes of that event. The evidence of Mr Grant and the letters in No.49 of process point to this conclusion. The adaptations included the putting of the banners in place shortly before the event itself. The only proper inference on the balance of probabilities is that the second defenders, either themselves or through their agents, caused the banners to be put in place and that it was the second defenders or their agents who were responsible for putting in place the piece of timber that fell on the pursuer. It was not interfered with by anyone else. Its falling so soon after being put there is, in the circumstances, eloquent of negligence on the part of the second defenders. They are therefore liable in damages to the pursuer. There is no issue of contributory fault or joint liability.

[12] The pursuer's damages claim includes heads of claim based upon the alleged likelihood that the pursuer will be compelled by the worsening of his symptoms to retire at about the age of 50 from his present employment and to seek light work. The evidence in support of this prediction is dealt with more fully later. Assessment of the probabilities of such a deterioration and its likely consequences has relevance to more than one head of claim, however, and. I consider it appropriate to indicate my general approach to this important matter before turning to the detailed heads of claim.

[13] In my opinion, in assessing the averred probability that he will be forced to retire some six years or so from now, it would be quite wrong to omit to take into account the pursuer's work record since the accident, and his personal character. Some people collapse under the consequences of a painful and disabling injury. Others endure the consequences with heroic fortitude. It is my strong impression of the pursuer that his reactions have been and will continue to be nearer the heroic end of the scale. He came through, both in his own evidence and also in the estimation of several others, as strong, determined, intelligent, resilient, adaptable and resourceful. In general he gave a strong impression of a man who would, where possible, find ways round his problems. I would not see him as likely to give up work simply because of recurring pain, unless it were to be so severe as to be directly disabling, and the medical evidence as a whole does not establish that it would be. He would be likely to take painkillers, as he does now, and to endure such pain as he could not get rid of. But, just as important as this impression of strength of character, is the nature of the difficulties that he is likely to have to face. Using his right hand while driving, at least in a built up area, could prove increasingly difficult; but there appears to me to be little difficulty in his switching from a manual gearshift to a car with an automatic gearbox so as to reduce any strain on his right hand to an acceptable minimum. He uses a laptop computer to prepare estimates and the like for customers of the timber and other materials that he has effectively designed for such customers. The designing consists largely of using, adding to and calculating from scaled drawings how to design the proposed work, where the materials are to go, what their dimensions should be and how the jobs can be planned so as to reduce to a minimum any waste caused by having surplus material, off-cuts, which cannot be used for any other purpose. I am prepared to accept the pursuer's evidence that, at least at the present time, the only way that he does that kind of work involves a substantial amount of writing and recording (of dimensions etc.) by hand before the making of the calculations that lead to the preparations of estimates and plans suitable for use by those who are to do the actual installation or construction. Such work performed in this way will, in my view, become more difficult for the pursuer if his condition deteriorates; but I find it difficult to accept that a man of the pursuer's character, intelligence and experience will not find ways to accommodate to the difficulties as they emerge. He has already learned to use a laptop; and it is notorious (and supported in evidence by Mr McNaught, an employment consultant) that electronic gadgetry, including the use of voice activated computers, is developing at a dramatic pace and that it is likely that the need for writing and the physical recording of data such as measurements will diminish greatly within the timescale envisaged, i.e. within the six years or so till the pursuer reaches the age of 50, and in the years following. In any event, many people operate personal computers and keyboards without using all ten fingers, and the pursuer appears to me to be just the sort of person who would quickly come to terms with the difficulty that the fingers of his dominant hand were sometimes weak, painful and liable to tire quickly, and would learn to take the strain off them by using his left hand more. In this context, it is important to remember that the pursuer is a highly skilled person earning a large salary, of around £30,000 a year, and that he has on more than one occasion been 'head-hunted' by would-be employers anxious to secure his services. It appears to me that these are circumstances in which both he and his actual or potential employers would work hard to find ways of using his intell

The medical evidence

[14] It is unnecessary to set forth in this Opinion all the details of the pursuer's medical condition. These details are contained in four medical reports by the orthopaedic surgeon who treated him, Mr J A Dent, MD FRCS. In brief, the history is that he was detained overnight in hospital in Glasgow, but there was no fracture or dislocation of the wrist. There was ligamentous injury to the wrist. When the swelling did not go down, he was referred to Bridge of Earn Hospital and then to Mr Dent, in December 1990. The pursuer had an inherited condition, known as Madelung's deformity, which had produced some shortening of the arms; but this condition, which was hardly noticeable to the layman, had no significant bearing upon the pursuer' manual dexterity or working capacity either before or after the accident. Initially the pursuer suffered from pain, discomfort, weakness of grip and loss of movement. He continued to consult his doctors and was examined in September 1993 when arthroscopic examination of the wrist showed erosion of the dorsal aspect of the articular surface of the radius and erosion of the triquetrum and impingement of the head of the ulna. Some bone was removed from the ulna to try to relieve this problem. However, pronation and supination remained very restricted and an arthrodesis of the distal radio-ulnar joint with removal of a segment of proximal ulna was carried out: this is known as Lowenstein Kapanji procedure. Pain persisted on the radial side of his wrist due to impingement on the radial styloid. On 11 April 1994 a radial stydloidectomy was performed. By then he was wearing a splint and was experiencing numbness in several fingers of the right hand. The treatment in hospital involved 'harvesting' bone from the forearm to be used in the first operation. The pain and dysfunction persisted. Further surgery was advised and carried out in 1996, all as detailed in Mr Dent's report, no 45/3 of process. These procedures involved painful removal of bone from both sides of the pelvis, such removed bone to be re-used in the wrist. He received physiotherapy until it had to be stopped because it was exacerbating his symptoms and doing as much harm as good. The pursuer has been left with residual scarring, as described in no 45/3 of process. Mr Dent's fourth report, no 45/4 of process, dated 21 November 2000, concludes that no further improvement is to be expected and that no further surgical procedures are envisaged. In that report Mr Dent expressed the opinion that, 'Although Mr McDyer is adapting well to his disability I think it is unlikely that he will continue working beyond the age of 55 and in fact may find that he has again to seek lighter employment before then'. This opinion appeared to be based on the view that the pursuer would become disabled from working at his present type of work because the pain and disability resulting from the condition of his right wrist would so restrict the use of his right hand, especially for writing and typing, that he would have to give up work.

[15] As indicated earlier, I do not accept the prediction that it is unlikely that the pursuer will cease working at or about the age of 55: this is not purely a medical question. The pursuer has coped extremely well up until the present and because of the arthrodesis procedures, further deterioration in terms of movement and pain is likely to be limited. His character is such that, as I have indicated, I would expect him to adapt as necessary to enable him to continue in the type of employment in which he clearly has special and valuable skills. I have absolutely no criticism to make of the pursuer on the basis that he has not yet practised with his left hand so as to relieve the strain upon his dominant right hand or that he has not yet switched to an automatic car. I certainly do not suggest that he is failing or is likely to fail in any duty he has to minimise his loss. On the contrary, my view is that he will do whatever is required to adapt to any growing disability that threatens his ability to stay in work.

[16] Each party presented a document entitled "Schedule of damages" setting forth under ten different heads the sums at which, in the submission of the author of the schedule, the Court should assess the appropriate award. This way of presenting the matter has proved immensely helpful, especially when the parties took the opportunity to summarise in the body of the schedule their submissions, with reference to the evidence, and also noting relevant authorities. I use the numbering used in the Schedules.

[17] The submissions of the parties in relation to solatium are stated very clearly in paragraph 1 of each schedule. The history of the pursuer's condition is set out in summary form in paragraph 1 of the pursuer's schedule; and the second defenders' schedule makes it plain that there is no material dispute in relation to this history. There is a slight difference of approach, in that Mr Dent, FRCS, for the pursuer and Mr Haddem, FRCS, for the second defenders had slightly different emphases in to describing the range of movement left to the pursuer. It is not in dispute, however, that in May 1997 the pursuer underwent a radio-carpal arthrodesis, using Herbert screws with left iliac crest bone graft. This procedure followed the earlier arthrodesis known as the Lowenstein-Kapanji procedure which was also an arthrodesis with bone graft. The 1997 arthrodesis was revised in February 1998 and there was a bone graft from the right iliac crest. I accept that the result has been a complete loss of deviation and complete loss of flexion in the wrist. There is some degree of rotation and there is some reduction of elbow movement; but any useful movement that the pursuer has is not in the wrist but in the arm. His grip is impaired and he has difficulty with fine movements and diminished sensation. He continues to suffer discomfort, stiffness and pain. I do not consider that there is any significant difference between the evidence of the two surgeons in relation to this matter. A more important possible difference arises in relation to the future. The pursuer was born on 20 October 1956 and was aged 44 at the date of the proof. In the fourth of his reports, Mr Dent says that the only possible surgical procedure that could now be contemplated would be a revision of the Lowenstein-Kapanji procedure with a view to removing the problem presented by the presence of some soft tissue connection between the ulnar ends. However, it is plain that no significant improvement could be guaranteed and it was my clear impression from the evidence that the pursuer would be unlikely to submit himself to further surgery when the prospects for improvement thereby would be so poor; he could not be faulted for so deciding. Mr Dent concludes by saying "I think it is unlikely that he will continue working beyond the age of 55 and in fact may find that he has again to seek lighter employment before then". When Mr Hadden addressed the prognosis he said, in paragraph 8.1, of his report (54/1 of process) that it is conceivable that there could be progression of the symptoms with the result that the pursuer's activities may be "slightly more restricted than they are at present". He goes on to express the view that "it is unlikely that he will be forced to discontinue his present occupation which is dependent on his knowledge of the construction industry and his ability to utilise a computer and work with drawings". My opinion is that, on the balance of probabilities, he can be expected to adapt as necessary so as to be able to continue to work in the same type of employment that he is involved in at present until he approaches the normal expected retirement age, despite the restrictions imposed by the disability of his right hand even if this should deteriorate. Insofar as the assessment of the progress of the pursuer's medical condition is concerned, there is really very little to choose between the two doctors. If it were necessary to make a choice on the emphasis to be placed, I think I should prefer the evidence of Mr Dent, simply upon the basis that he has treated the pursuer over a long period, has conducted surgery on the wrist and has seen the situation beneath the surface and that he specialises in treating upper limbs. However, both doctors are agreed that the pursuer will continue to suffer pain, swelling, numbness and weakness affecting his wrist and that ther

unemployment from this cause would, in my opinion, be a matter to be taken into account in assessing solatium. However, for the reasons that I give elsewhere in this Opinion, I have come to be of the view that it is unlikely that the pursuer will be compelled by his medical condition to give up work much, if at all, before his intended retirement date of 65; and I think it even more unlikely that he would be forced to seek light work of the kind contemplated by the employment consultant engaged for the pursuer, Mr David McNaught. He would much rather adapt in preference to doing relatively unskilled and poorly paid work. As I conclude later, he would be more likely just to retire a year or two earlier than move to low paid unskilled work. I also take note of the fact, which is clearly demonstrated by No.48/5 of process that the pursuer has kept almost continuously in employment since the date of the accident. There was a break in employment following the end of the job which he took in Saudi Arabia from October 1992 to February 1993. There was a further break of six weeks between January 1995 and February 1995. There was also a substantial break following his leaving his employment with Doka UK in October 1999. At first sight the excellent employment record of the pursuer might point away from his having suffered serious pain and discomfort over the period of ten years since his accident. However, I am clearly of the view that the character of the pursuer is such that he has simply gritted his teeth and got on with it. He has put up with the pain and discomfort; he has treated it with such medication as been prescribed; he has adapted to it as much as possible and he has shown considerable fortitude in not letting it prevent him from leading a normal life. It will be seen from the submissions of parties as summarised in paragraph 1 of the respective schedules that the second defenders suggest that £15,000 would be a reasonable award for solatium. The pursuer's counsel suggested £28,000. The cases referred to do not support an award as high as that which the pursuer seeks. The sum chosen by the pursuer is based upon the range of figures given in the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases (5^th Edition 2000) for "injuries resulting in complete loss of function in the wrist, for example where an arthrodesis has been performed". The guidelines, however, provide no case law in support of that range of figures; and counsel for the pursuer referred to no case other than those specified in paragraph 1 of the pursuer's schedule. Of the cases cited, that referred to by the second defenders, Laing v Northern Grouting Engineers Limited 1985 S.L.T.179 is interesting and not unlike the present, except that Mr Laing suffered his injury to his left wrist; the dominant arm was the right arm. Furthermore, the pursuer in the present case has suffered over a much longer period and has undergone more surgical procedures. The other point is that, quite apart from inflation, the levels of damages have risen since the case of Laing was decided. In all the circumstances, I have come to be of the view that an appropriate award for solatium for this pursuer in the light of his history is £20,000, with two-thirds being allocated to the past.

[18] The pursuer has calculated interest on the basis of two-thirds being allocated to the past. Although in the schedule the second defenders suggest a 50-50 allocation it was accepted in oral submission that the two-thirds/one-third allocation would be appropriate. There was no dispute about the rates of interest or the periods involved. In these circumstances I have recalculated the interest on past solatium on the sum of £13,333, being two-thirds of £20,000. The result is that the sum for interest is £7,007.

[19] As has been seen from No.48/5 of process, the pursuer worked very steadily for ten years after his accident. When he changed jobs, which he did fairly frequently, he often did so without any break at all. The only large break was in 1991 when he was out of work for about five months. As the second defenders' submission points out this was during a period of considerable contraction in the construction industry. The basis of the pursuer's claim is that, if he had not been injured and partly disabled thereby, then if he had been out of work (of the kind that he has been doing since the mid-1980s) he could, and would, have found work as a joiner doing ordinary joinery work, with tools, during periods of unemployment. However, it is clear that by 1991 the pursuer had not done any joinery work for some six or more years. Furthermore when he left Doka (UK) in October 1999 he did so of his own volition. It is plain from the whole evidence that the pursuer had made a deliberate choice to engage in the specialised work which he has been doing for more than fifteen years and in which he is expert. It does appear to me to be highly likely that if, for whatever reason, he lost such employment he would concentrate on seeking other such employment. It would be difficult to do that if he were working as a kind of jobbing joiner. In any event, at the material time, for the reason referred to above, the pursuer might well have had great difficulty in finding work as a joiner. I also accept the submission for the second defenders that on the basis of such evidence as we have got, notably in No.48/6 of process, the rates of loss claimed for the pursuer is extravagant. The second defenders do not dispute that there should be an award, and invite the Court to make an award upon a broad basis. I think I must do so. I approach this on the basis that, during the longer period when he has been out of work, namely in 1991 and after October 1999 he might have sought and might have been successful in obtaining some work for at least part of the period of unemployment. But I think there is no real basis for concluding that, during any such short period of employment, he would have been likely to take home £600 weekly after tax, as he claimed would be appropriate at today's rates. That sum is comparable to what he earns in his current skilled employment. I approach this on a broad basis, as invited to do by the second defenders, and consider that an award of £7,500 would be appropriate for this head of claim.

[20] This brings out a figure of £3,900 in respect of this head of claim.

[21] Except in relation to the period now and the date, if it ever arrives, when the pursuer would be forced to retire or to seek light work, the pursuer's loss of employability claim (Head 6) is effectively covered by the claim for future loss of earnings as presented. In my opinion, it would involve double counting to make awards in respect of future loss of earnings on the basis sought by the pursuer while at the same time giving the loss of employability award calculated on the basis also sought by the pursuer.

[22] The real issue that affects the fifth head of claim is whether or not the pursuer is likely to have to retire from work altogether in his mid-50s and whether or not he may have to seek lighter employment even before then. I return to this very important matter, at the risk of some repetition. This is a matter of prediction based only partly on the medical evidence. If the medical evidence had established on a balance of probabilities that there was likely to be a very significant deterioration in the pursuer's condition, then there would be a sound medical basis for predicting that he might find that his right arm was so seriously disabled that he could no longer do any work with a substantial manual element. I do not, however, evaluate the medical evidence as pointing to that conclusion. The pursuer's history of his relationship with the consequences of his injury has been a wholly admirable one. He has kept in employment, he has put up with the pain and discomfort and he has adapted his techniques as far as appear to him to be necessary and just got on with the job despite all the drawbacks attributable to his injury and his consequences. It is my assessment of the character of the pursuer that he will continue to live with the consequences of his injury in the same way. He already has problems with driving his car. There is no obvious reason, in my opinion, why he should not switch to a car with an automatic gearbox. With this simple switch he could greatly diminish the problems that he currently experiences in driving. It was suggested by him that employers are not very keen on letting their employees have automatic cars, partly because many such employees do not like automatic cars and, if the car has to be handed from one employee to another, it becomes difficult to do so if the car has got an automatic gearbox. However, the pursuer is obviously a highly valued employee and I have no reason whatsoever to suppose that his employers (or any future employers) would raise any objection to his using a car with an automatic gearbox if that was what he wanted or needed. It was also suggested that he might be able to use a roller ball on the steering wheel: this is a device used by people who are severely disabled in one arm because it enables them to use one hand to control the steering. It is also commonly seen on the steering wheels of very large industrial vehicles where several turns of the wheel may be required to effect a full change of direction. I think it may be somewhat extravagant to expect the pursuer to use such a device. However, if he uses a car with an automatic gearbox, I think that he will be able to avoid the problems he describes in relation to driving in town. Another difficulty that the pursuer has encountered is in writing. It is plain that his work involves having to make and record measurements and calculations. Currently he does this by writing with the injured hand. In doing it this way he is following the ordinary custom in his trade. I was, however, very impressed by the evidence of Dr Grant, who gave evidence for the second defenders, as to other methods whereby this type of work might be tackled. In looking at this matter, it must be borne in mind that the prediction that has to be made as to whether or not the pursuer will require to give up his present method of working is a prediction about something that, if it occurs at all, will not occur until at least seven and perhaps many more, years ahead. The rate of development of software and other technological devices for doing on a p.c. the kind of design work that the pursuer has to do is very fast indeed, as Dr Grant said. The pursuer is a highly intelligent and resourceful man and my estimation is that he will move towards using such techniques as they become available and as his need to reduce ordinary writing increases. In any event, the likelihood of physical deterioration in th

[23] Mr Smith used a discount rate of 1% based, as his report explained, on certain economic assumptions updated since Wells. Mr Pollock used the 3% figure found in Wells. For the reasons that are set out in paragraph 4 of the second defenders' schedule, and in the dicta referred to from Wells, and following the approach of Lord Philip in Macey-Lillie v Lanarkshire Health Board, 26 May 2000, I consider that, if I had to choose, I should have preferred the Wells figure taken by Mr Pollock. Similarly I should have preferred to use the economic assumptions used in the preparation of the Ogden Tables rather than to try to re-evaluate them for individual personal, geographical and other factors peculiar to the case in hand. Apart from the undesirability of having to recalculate all such matters from case to case, there is a spurious illusion of precision in all such calculations when, as in this case, the loss may never occur, and the date when it might start to occur is exceedingly difficult to predict.

[24] As to the multiplicand, I am persuaded that the pursuer is not entitled to claim on the basis that the true earnings included benefits in kind. All evidence led in relation to such benefits in kind was led under reservation of objections taken to the line of evidence on the basis that there was no Record for such an addition to the claimed loss. I sustain these objections and would have used Mr Pollock's figure of approximately £21,000. However, for the reasons already explained, I do not make any calculation under head 5.

[25] In this respect I follow the approach taken by Lord Kingarth in King v Carron Phoenix, unreported and referred to in paragraph 6 of the second defenders' schedule. My estimation of the somewhat distant future (perhaps 16-20 years away) is that the pursuer may well feel eventually that enough is enough, and that the daily burden of living with the awkwardness and the pain aggravated by using his right wrist for work is no longer supportable. In such a situation I estimate that he would choose to retire early. I would envisage that he would decide to retire early and do so completely rather than to seek light work in his 60s, being work of a kind much inferior to that to which he has become accustomed. It is quite impossible to do more than to predict that he is likely to decide to draw a line under his working life sometime between his 60^th and 65^th birthday, and possibly sooner rather than later. So he is, in my opinion, likely to forego several years' earnings starting some 16 years or thereby from now. Any award to reflect such a loss would have to be substantially discounted to reflect the fact that the pursuer will receive compensation for that loss at the present time. Starting with a figure of about £60,000 to reflect the likely loss in the future of several years salary, and discounting at a rate of 3% net, I arrive at the conclusion that the main sum that it is appropriate to award under this head is £40,000.

[26] However, as I have approached the assessment of future loss upon the basis that for the next 16 or 17 years the pursuer will do what is necessary to adapt himself and his equipment to his disabilities and the demands of his work, I have to recognise an additional factor that will cause him loss. Any substantial adaptation by the pursuer is itself likely to lead to some additional expense. Thus, for example, if he were to decide to use an automatic car, as I predict he will, then that is likely to cause additional expense over the years, because automatic cars are normally more expensive than cars with ordinary gearboxes. Furthermore, if the pursuer required to retrain to some extent in order to use his laptop less painfully, or to adapt to different equipment, including equipment for activating the personal computer by voice, and if the pursuer had to spend his own money on training and on voice activation equipment or the like, then he would clearly incur additional expense. There was no evidence as to the likely cost of any such additional equipment or indeed as to how long the pursuer might have to take off work in order to retrain so as to adapt his computer skills to his increased disability. Nonetheless it would be unfair to the pursuer not to make some award in respect of the expenditure likely to be incurred in this way, particularly when the probability that some such expenditure will be incurred lies at the root of my rejection of his substantial claim for future loss of earnings. I can only take a broad figure. In respect of this item I shall add £2,000 to the award under Head 6. The total award under this Head of claim therefore comes to £42,000.

[27] The evidence in relation to these heads of claim was very general and, as the second defenders say, there is really no detailed evidence to justify any substantial award here and I know of no easy or convincing way of putting into money terms the chore, which the pursuer's wife had to undertake from time to time, of fastening his shirt buttons, or other such task. Nevertheless section 9 provides for the making of an award. I have found the case of MacShannon v Ailsa Perth Shipbuilders Limited 1994 S.L.T.500 to be helpful. In the present case, however, the pursuer, being a qualified joiner, was obviously rather more than usually capable of doing jobs around the house for which he might in future have to employ professional assistance. In all the circumstances I think an award of £2,000 under this head is appropriate.

[28] There was no dispute about these items and they fall to be assessed at the sums of £1,798 and £950 respectively.

[29] The total of these sums is £85,155. That is the sum that, in the light of the conclusions that I have reached, falls to be awarded to the pursuer.