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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kirk v Fife Council [2001] ScotCS 256 (8 November 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/256.html Cite as: [2001] ScotCS 256, 2002 SCLR 407

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[1] On 11 June 1997 the pursuer sustained a rupture of his left Achilles tendon in the course an evening five-a-side football match in the Sports Hall of the Lochgelly Centre owned and operated by the defenders. As had occurred on three or four occasions in the past, the pursuer had been invited by his friend Leslie Lyall, who was a regular member of the group which had been playing together for years, to make up the numbers in the absence of another regular member. At that time the pursuer played football for a leading Fife amateur side, trained regularly, played a number of other sports, was very fit and readily accepted the invitation.

[2] The pursuer confined his case to that made under the Occupiers Liability (Scotland) Act 1960, section 2(1) to the effect that, in the knowledge that part of the floor of the Sports Hall was wet, the defenders failed in their duty not to permit the game to proceed thus causing the pursuer to slip on a wet patch on the floor. As a result excessive stress was applied to the Achilles tendon and it snapped.

[3] Those witnesses who were asked - and that included a number of the players and a janitor and a caretaker employed by the defenders who were on duty that day - agreed that, if the floor of that particular Sports Hall was wet, there was a materially increased risk of injury to anyone playing football there through slipping. Counsel for the defenders did not suggest that there were circumstances in which it would have been reasonable to allow five-a-side football to be played in the Sports Hall if the floor was wet. That included being wet in one part, since the whole of the hall was used in the course of a game and any water lying would not only present a material risk in itself but was likely to be spread to other parts of the Hall by the action of feet. There was a history of water on occasions dripping onto the floor of the Sports Hall from the roof. Counsel for the defenders acknowledged that, if it were proved that such a situation existed when the game was played on 11 June 1997, the defenders were in breach of their duty under the said section 2(1) by permitting the game to proceed. Their policy was clear - play was not permitted in the Sports Hall in these circumstances on account of the increased risk of injury.

[4] Since there was no argument but that the defenders would be aware if water was present in the Sports Hall, there were in the end only two issues of fact to be resolved. Before he could succeed, the pursuer had to establish that there was water lying on the floor and that that caused his injury. If the pursuer failed to prove either, then he must lose. On the other hand, were he to prove both, that was not the end of the matter. The defenders contended that the pursuer's own negligence in going ahead with the game in the face of his own admitted knowledge of the presence of water was the real cause of his injury or a significant contributory cause.

[5] The easier to resolve of the two main factual issues was that of the presence of water. If water did penetrate the Hall, it tended to do so at the end furthest from the entrance used by the players. When he went into the Hall, the pursuer saw what he described as "quite an area of water" lying in the top right corner of the Hall as viewed from the entrance. It was 2 feet by 3 feet square roughly. There was a bit of a splash of water when people went into that corner. He said that, as the teams entered, a caretaker pointed this out and said: "We've got a leaking roof - just be careful". As the game progressed water was glistening on the top one-third to one-half of the floor. He was also aware of water penetration through the skylight in the changing room and in the corridor between the changing room and the Sports Hall. It had been raining heavily all day and for the previous day or so.

[6] Leslie Lyall, a 46 year old school teacher, who had invited the pursuer, was probably the last of the players to enter the Sports Hall. He remembered that the floor was wet for a number of reasons. Either one or two of the janitorial staff were leaving the Sports Hall as he entered, and his impression was that they had been wiping up water from the right hand corner. When he joined the others they were discussing having been told to be careful because there was water on the floor. In the course of the game he tried to dry his feet on the walls of the Hall. In his experience water lying, as this was, in an area towards the back right hand corner of the Hall would be spread over the Hall as the game progressed.

[7] One curious feature of the case was that both counsel led a player, who had little or no recollection of the evening, but who coincidentally had in December 1997 written an account of his recollection of 11 June in the form of a letter in response to a request from the pursuer to set out his recollection in that way. Gary Macleod was the witness led for the pursuer. He wrote:-

Tommy Tulloch led by the defenders wrote this:-

Both described the letters as containing their accurate recollection of the events of 11 June.

[8] The five-a-side football match was preceded by an aerobics class. One of those attending the class was Catherine Mary Blake. She spoke of water on the floor on 11 June. She also spoke of water leaks into the Sports Hall being quite regular events. Unlike the two witnesses who wrote letters, however, this witness was not aware of the incident involving the pursuer until several weeks later. She had no reason to recollect that particular night until she met the pursuer, her husband's cousin, a few weeks later. Her manner in the witness box was somewhat tentative. While she may have convinced herself that the night she was recalling was 11 June 1997, she did not convince me of that. It may well be that she has a recollection of that night, but I am in sufficient doubt about that to leave her evidence out of account in determining this issue.

[9] A number of witnesses led for the defenders stated that there was no water on the floor when the game commenced. Principal among these was Brian Lewis Morgan Hall, who was at that time employed as a security and leisure attendant and caretaker, and held that job from 1988 until about a year ago when he gave it up and became unemployed. He was adamant that there was no water on the floor of the Sports Hall before the football. If there had been, the Sports Hall would have been closed to play. His recollection was that there was a leak into the corridor which passes the men's changing room and leads to the Sports Hall. He recalled telling the football boys to "watch their feet on the way into the hall". He could say with confidence that there was no water in the Sports Hall because he was in the hall at the end of the aerobics class. He had come on duty in the afternoon and had learned then that there had been a problem of water penetration in the Sports Hall in the morning. That had been resolved by the time he came on duty. Because the five-a-side players were referring to water on the Sports Hall floor when they returned to the dressing room after the game, his temporary colleague Mr Simpson, who was not called to give evidence, returned to the hall to check, albeit they thought that the players were simply joking about the presence of water in the context of hinting to the pursuer a basis on which he might make a claim for compensation. He understood that Mr Simpson saw no water.

[10] Andrew Lightfoot, the janitor, was on duty between 9am and 6pm. He recollected leaks into the corridor, one near to the exit from the changing room and the other near to the main entrance into the Sports Hall. He was adamant that there was no leak into the Sports Hall at any stage that day. He was certain that he was speaking about 11 June because he learned of the incident the following morning. He was in fact surprised to hear that Mr Hall had said that there had been a leak earlier. The witness had been on duty earlier than Mr Hall and his recollection was clear.

[11] These two witnesses were inconsistent with one another on the important question whether there was a leak of water into the Sports Hall at any stage that day. The matter is further confused by an entry in the caretaker's incident book made by one of the other caretakers to the effect that he had requested that maintenance and repair work be done in respect of leaks in the corridor and the Sports Hall. The incident was on the evening of 11 June and that request was made on 13 June, the point at which according to Mr Lightfoot it would have been reasonable to report a leak occurring on 11 June and not resolved.

[12] The defenders also relied on the evidence taken on commission of one of the players, William Salmond, a 46 year old quantity surveyor who on occasions had helped out as a caretaker. There are two striking features of the transcript of his evidence. In the first place, he was firm in his denial that there was any water on the floor of the Sports Hall, and yet he was vague about most other details. Secondly, he appeared to change from being a very co-operative witness in examination-in-chief to being a defensive witness under cross examination. When his evidence was taken, counsel for the defenders invited the Commissioner to write a note as to his reliability and credibility. That note is critical of his evidence and casts doubt on his impartiality. I did not find it of assistance in this case to have such a note, especially since the conclusions reached are based on features of the evidence which emerge in any event from a study of the transcript. While I accept that a judge can be assisted in reaching decisions on credibility and reliability by being able to watch a witness giving evidence, he is in general assisted to an even greater degree by considering the evidence actually given by the witness in the context of the evidence in the case as a whole. No doubt there will be occasions on which features of the way in which a witness gave evidence could not be reflected in the transcript, but most should be. To give a crude example - observant counsel would obviously wish to ask a witness, who constantly hesitated before answering even the simplest question, why that was so to reflect it in the transcript. I, therefore, endeavoured to consider the transcript of the evidence of Mr Salmond afresh with a view to arriving at my own conclusions. When asked in examination in chief whether there was water on the playing area during the match, the witness said: "Definitely not and .... certainly no pools of water from rain or anything like that". When asked whether there were any wet patches caused by people walking in puddles, he said: "No, definitely not. The hall was checked out before we started". When asked whether he would have expected to play if there had been a pool of water or wet patches, he said: "Absolutely no, the Centre would just tell you before you went on you werenae getting to play, it's happened before". On that point he said that he had had two sessions cancelled after they had arrived at the Hall and numerous sessions cancelled during the day because water had got into the Hall. At the outset of cross examination he said that he had been informed that the Hall had been wet during the day, but then he became very defensive about the frequency of leaks at the Centre in spite of his earlier reference to numerous sessions being cancelled. His recollection of the role of the caretaker before the game was that he had checked the Hall out and told them that it was safe to go on. He was then at his most defensive when it was suggested that other players might have been in a position to see what happened to the pursuer and may have seen things differently from him. It seemed to be important to him to defend his position as the person best placed to see the incident, rather than acknowledge that others might also have seen what happened. He could give no reason for doubting that they might have done. This remained his position in spite of his acknowledgement in examination in chief that he could not say with any certainty what led to the pursuer falling down, because he would be watching the ball.

[13] While the evidence of both Hall and Salmond was to the effect that there was no water on the surface of the Sports Hall when the game started, and the evidence of Lightfoot was clearly to the effect that there was no reason for water to be there, I found myself viewing their evidence with scepticism for two main reasons. In the first place I found the contradiction between Hall and Lightfoot and indeed Salmond and Lightfoot about whether there had been a leak at all into the Sports Hall rather strange. In the second place I found both Hall and Salmond to be defensive witnesses more intent upon supporting the defenders than giving a full and frank account. Against their evidence had to be set what I viewed as a fairly consistent body of evidence from the pursuer, Lyall and the two witnesses who prepared statements, that there was water there and that they were warned to be careful. The pursuer was no more than an acquaintance of Macleod and Tulloch. Lyall on the other hand was a friend who might possibly be inclined to give the pursuer support. However, he struck me as a genuinely open witness who had a good recollection of events. Counsel for the defenders did not suggest that he was anything other than frank. The pursuer gave his evidence in a straight-forward and convincing manner. I found his evidence on this point credible and reliable. Viewing the evidence as a whole I have come easily to the conclusion that there was water lying on the floor of the Sports Hall when the game started in circumstances in which the application of the policy of the defenders would have led to the game being called off by the defenders. I accordingly find that the defenders failed to comply with their duty to the pursuer under section 2(1) of the Occupiers Liability Act 1960 by permitting the five-a-side game to proceed.

[14] The much more difficult basic factual question to determine was whether the presence of that water caused the pursuer's injury. The pursuer explained that he was defending his team's goal when the ball came past him and then came back again, presumably off the back wall. As he moved for the ball, which was about 2 yards in front of him, leading with his right leg, his left foot seemed to slip back, then to jerk, and then there was a noise like a bomb and he felt incredible pain just above his heel. At hospital he gave an account of feeling as if he had been kicked on the back of the lower leg, albeit there was no actual contact. He also described the noise as a crack. Mr T I S Brown and Mr T H Annan, Consultant Orthopaedic Surgeons, both agreed that what the pursuer was describing and had in fact sustained was a complete rupture of the left Achilles tendon, often associated with participation in sport, particularly racquet games. Both were also agreed that this occurs most frequently when hyper-dorsiflexion of the foot, which is the movement involved in pushing off the floor with the foot, suddenly transmits force through the calf muscle applying stress to the tendon. The leg is stretched behind, the foot is fixed and the calf muscle taut and stretched. It was also Mr Annan's opinion that unco-ordinated reaction to developments in a game usually accounted for such ruptures, for example, moving and reaching out suddenly in an unco-ordinated way. Both consultants agreed that slipping was not an essential element in sustaining such an injury. For Mr Annan a spontaneous unco-ordinated movement in the course of which the requisite strain was applied to the calf was the crux of such injury. I consider that that is exactly what the pursuer was describing. Mr Annan went on to say that, in the case of a slip, the necessary strain could only be applied if, after sliding a short distance, the foot met the resistance of a dry surface and the slide stopped. Again I consider that that is exactly what the pursuer was describing when he said that his foot slipped back and then his leg seemed to jerk. The pursuer maintained that he noted at the time that he had slipped on water and saw "splishes and splashes" the size of a shoe all round the area of the incident.

[15] It is not surprising that none of the other players was at that moment in time standing still with his attention fixed on the movement of the pursuer. Five-a-side football is a fast moving game and the incident occurred in the midst of the action. The evidence indicated that players frequently fall during a game for all sorts of reasons. In his written statement Tommy Tulloch simply referred to the pursuer being injured in an incident during the game. Gary Macleod went a little further and described the pursuer as moving from a standing position to intercept the ball and slipping, falling to the floor. As counsel for the defenders pointed out, that description lacks the essential ingredient of the slip suddenly stopping and additional pressure being applied to the calf. While that is so, I would have been sceptical about the evidence of any witness who was engrossed in the play yet able to describe the incident in that way. What is important is Mr Macleod's confirmation that the pursuer slipped. Mr Ellis also pointed out that "falling to the floor" was inconsistent with the pursuer's description of experiencing severe pain and almost falling, but maintaining his footing by reaching out for the floor with his hands to prevent himself from falling, and then hopping over to a wall for support. However, that is just an example of the sort of detail surrounding an incident that witnesses might recall differently and which are not material. It was a matter of agreement that falling per se could not have caused the pursuer's injury.

[16] Leslie Lyall also recalled the pursuer as falling and said that he stayed down. He was looking at the pursuer at the time. He said that his foot went away because of slippage and he lost his balance. He acknowledged that what he saw could have happened even if there was no wet patch on the floor, but his recollection was that in the discussion among the players there was a general acknowledgement that it had been caused by the wet floor. Water had been spread over the floor as they played. Mr Lyall's account appeared to me to be entirely consistent with that of the pursuer in its material respects. Like Mr Macleod he made no reference to the jerk. As with Mr Macleod I would have been surprised had he been able to describe what occurred in such detail. Mr Ellis also relied on an answer given by Mr Lyall to the effect that when he slipped "one leg gave way". He reminded me that Mr Annan had made it clear that the sort of slipping that could cause the injury was not that of simply slipping on ice and falling, but required a sudden end to the slip caused by resistance to the foot. He maintained that that description, and indeed the reference to slipping and falling by Mr Macleod, were not consistent with the type of slip necessary to cause the pursuer's injuries. I do not find that at all significant. When the pursuer suffered what he described as incredible pain, he took the weight of his left leg. If he did not fall, he was certainly bent over trying to maintain his balance. I do not regard Mr Lyall's description as inconsistent with that. I was impressed by Mr Lyall as a witness. His answers were measured. He did not try to fill in gaps in his knowledge or recollection with speculation. He conceded what he did not know. For example, he could not say that the pursuer had slipped on water or indeed which foot had slipped. He was not at all defensive about gaps in his knowledge.

[17] Apart from Mr Tulloch the only other witness of the incident called by the defenders was Mr Salmond. I have already indicated my views on his evidence as a whole, including his evidence on this point. Nothing he said about the accident itself, however, assists either way in determining whether the water caused it. He described the pursuer as simply going over and falling down. He confirmed that the pursuer was moving forward rather than involved in a tackle or a twisting motion or some other similar movement that would apply strain to the calf. So far as the mechanism causing the injury is concerned, I can find nothing in his evidence that is inconsistent in any material respect with that of the pursuer.

[18] That being the state of the eye witness evidence, it is hardly surprising that counsel for the defenders concentrated his attack on the reliability and to some extent the credibility of the pursuer's account. In particular he relied on the absence of any reference to slipping on water in the records of four more or less contemporaneous accounts of the incident. The first of these was an accident/dangerous occurrence report completed by Brian Hall. When the pursuer went to the changing room, Mr Hall as first aider attended to him. He said that he asked the pursuer what had happened and that the pursuer made no reference to slipping on water. It was part of his duty to complete a report. There were standard forms available at various points in the Centre. According to Mr Hall he used one of these to jot down basic details of the name, address and date of birth of the pursuer. He also asked him what had happened. He made a mental note of that, and then about half an hour after the pursuer had left the Centre he wrote out a complete report and destroyed the original one he had started. He suggested that he might have done things differently had there been another caretaker with him while he was attending to the pursuer, but, as it was, he did not have time then to fill out the full form. He understood that the practice he followed was normal. He recorded in the form which he ultimately completed the details of the accident as these: "On moving to run after football he felt snapping sensation in left ankle tendon". From the outset this procedure struck me as strange. I could not understand why anyone would begin writing these details on an official form and not simply go on to complete the form either then or shortly afterwards. The matter is of some importance, because the pursuer gave an account of going on one occasion from his solicitor's office to the office at the Centre to see what the accident report form said out of curiosity. The pursuer's clear recollection was of seeing a handwritten report recording that he had slipped on the wet surface. His recollection was that he had told Mr Hall that. Such a form was never recovered.

[19] The mystery deepened when Mr Lightfoot gave evidence that he had never heard of anyone doing what Mr Hall said he did. It was not at all unusual for there to be one first aider on duty and therefore only one person attending to the patient. He would usually scribble out the details on the form by hand. The form was handed to the secretary to be typed out. Indeed that had happened in this case. He had never heard of anyone rewriting a form. Mr Lightfoot recalled being told by Mr Hall the following day that a guy had got a bad injury the night before when he turned to go after a football. Mr Hall had not mentioned slipping on water.

[20] I did not find myself either during the pursuer's evidence or at any other stage of the proof doubting the pursuer's honesty. On the other hand I have already indicated my reservations about the evidence of Mr Hall, and the evidence on this episode simply compounded my concern about his evidence. I am not prepared to rely on Mr Hall's evidence that the pursuer made no reference to slipping on water supported by the record made in the report, because I am not satisfied that either is a reliable account of what happened. On the other hand I am also not prepared to make any positive finding that the pursuer did tell Mr Hall that he had slipped on water and that that was recorded in a document which he saw in the office. At this point in time I do not consider that the pursuer's brief visit to the Centre office almost four years ago and his recollection of what he saw form a reliable basis for reaching a positive conclusion in his favour.

[21] The other more or less contemporaneous records were medical notes. The pursuer first attended his general practitioner, Dr John Robertson McKean, on 13 June 1997. The doctor's note for that day includes: "Left Achilles tendon ruptured playing five-a-sides". There was no reference to slipping on a wet surface. In cross examination Dr McKean thought that he would have asked the mechanism, and if he had been told the mechanism was slipping on water he was sure that he would have noted it. However, when the matter was further explored in re-examination, he acknowledged that there were a number of possible reasons for there being no reference to the mechanism. He thought that, because this was an emergency consultation, it had probably been squeezed in. The pursuer would have many issues relating to pain, the extent of injury and the potential effect on his future in mind. In such circumstances it was always possible that he did not ask about the mechanism. The mechanism was described to him subsequently on a number of occasions by the pursuer. It was plain from Dr McKean's evidence that he regarded the pursuer as a genuine person. At times he seemed anxious to make that point. On the other hand he was careful to confine his views to his own area of competence, and on questions such as causation be readily deferred to experts with far wider experience than his. I was left with the impression of a dedicated doctor who had taken a close interest in an injury which was a serious one for a fit young man and who had a thorough knowledge of the case. Interestingly he said something which came to be echoed by evidence about another medical note. On the question of the mechanism he said that by the time the pursuer consulted him the mechanism would have made no difference to his treatment. The initial management of the injury had already been undertaken and he had to make no decisions in that regard.

[22] That other medical note was made at Queen Margaret Hospital, Dunfermline, the pursuer attended there on 12 June for review of the initial hospital treatment of 11 June. That note was made by an associate specialist in the Orthopaedics Department. He noted that the injury had been sustained when the pursuer was playing football, and that when running the patient felt a click in the back of heel but was not actually kicked. Neither the writer of this note, nor of the one I shall next refer to, was called to give evidence. Mr Annan found it not at all surprising that there should be no reference to the mechanism in the orthopaedic note, since by then the fun would have gone out of the investigation because the diagnosis was plain.

[23] The third medical note was that made at the Accident and Emergency Department of Queen Margaret Hospital when the pursuer arrived there shortly after he was injured. There it was recorded that the patient had been playing football and felt he had been kicked on the back of the leg although there was no actual contact. Mr Annan found that, like the description in the orthopaedic department note, to be a classic description of the experience of a tendon being ruptured. No view was sought on the oddity or otherwise of the absence of any reference to mechanism. However, in the absence of evidence from the witness who made the note about the practice to be followed in noting the history of an injury, it is difficult to draw any conclusion. It was plain from the evidence of both Dr McKean and Mr Annan that the mechanism would have no bearing on the treatment. The rupture was complete, the diagnosis was plain and knowledge of exactly how it happened would make no difference to the treatment.

[24] The pursuer's own evidence about what he had told doctors was vague. He thought that he had given the same account as he had given to Brian Hall who, according to the pursuer, was along with Simpson at the time that he told him he had slipped. On the other hand he did not have a clear recollection of events at hospital and was not asked what account he had given to Dr McKean. However, the significance or otherwise of the absence of any reference to slipping in these notes was sealed for me by the evidence of the pursuer's wife, Angela Kirk. She struck me as a patently honest person. She seemed to be intimidated to some extent by her surroundings and quite nervous. Nevertheless she gave evidence in a straightforward way. She had a clear recollection of her husband explaining what had happened when he came home from hospital. He said that he had been playing five-a-side football and had slipped on water. She was clear in her recollection that he said so that night. Counsel for the defenders suggested that there might be an element of rationalisation in her evidence. She acknowledged that she and the pursuer had discussed the incident on occasions subsequently. However, counsel had to accept that, if slipping on water was a late introduction to the history, either the pursuer or his wife must be guilty of fabricating that element. In my opinion both were truthful witnesses. The pursuer's wife's account of hearing of the accident in a phone call from the hospital, waiting for the pursuer to come home, getting him settled when he did come home, and then asking what had happened once he was settled, sounded just like what a concerned wife would do. Mrs Kirk gave evidence on other matters relating to the claim for loss of services. Her evidence was measured. There was no hint of exaggeration. I found her evidence in general both credible and reliable.

[25] I am satisfied that on the very night that he was injured the pursuer complained of having slipped on the wet surface of the Sports Hall. His description is entirely consistent with the mechanism described by Mr Annan. I do not consider that any other evidence in the case, including the terms of the more or less contemporaneous notes, undermines the pursuer's account in any material respect. I accordingly find his evidence of slipping on the wet surface of the Sports floor to be credible and reliable. I consider that the pursuer probably sustained the rupture to his Achilles tendon in the way he described whereby excessive strain was applied to the calf muscle and in turn to the tendon.

[26] In the event that I found that the pursuer was injured by slipping on the wet surface of the Sports Hall, counsel for the defenders invited me to hold that nevertheless the real cause of the pursuer's injury was his own fault, or alternatively that it was the main contributing factor and to make a high finding of contributory negligence on his part. He was on solid ground in submitting that it was widely recognised among the witnesses, both the players and the staff at the Centre, that playing five-a-side football on a wet surface presented an increased risk of injury. There was no obligation on the pursuer to play. He invited me to view the situation differently from that of an employee who is aware of a risk but feels under pressure from his employer. The pursuer gave evidence that he thought it strange that a decision was made to play. When told about the water and warned to be careful, none of the others had flinched. As an infrequent guest he was following their lead and did not give it much thought. Mr Lyall said that he was aware of the extra risk of injury but decided to play on. He described it as a "culture thing" that a group of men who had turned up for their weekly or twice weekly game would be pre-disposed to play.

[27] The defenders' case of sole fault and contributory negligence is confined to the duty not to play football in the Sports Hall since the pursuer knew that there was water on floor and that the risk of injury would thereby be increased. Other duties pled about exercising care while playing were not relied upon. So the primary question for me to determine on this issue is whether the pursuer failed to exercise reasonable care in all the circumstances by participating in the game. It is not at all surprising that the regular players carried on. As Mr Lyall said, it was a "culture thing" to want to play when you turned up for your regular game. He and the other regular players knew that the defenders cancelled play when there was a risk presented by water. In spite of the defenders' policy play was permitted. Faced with that situation it would have been surprising if the regular players did not decide to carry on. That is bound to have influenced the pursuer as he said it did. The influence would not be as great as that on an employee faced with negligence of an employer, but it was a material factor nonetheless in his assessment of the circumstances. The pursuer was also aware that the caretaking staff considered that the game should proceed as long as the players took care. In these circumstances it cannot be said that the pursuer failed in the duty to take reasonable care for his own safety by participating in the game. In the absence of such a breach of duty there can be neither sole fault nor contributory negligence attributed to the pursuer. I accordingly find that the pursuer was injured because the defenders failed to comply with section 2(1) of the 1960 Act.

[28] When the pursuer attended Queen Margaret Hospital, Dunfermline on the evening he was injured, a temporary cast was applied. He was reviewed the following day, when a below knee cast with the foot in full equinus was applied. Six weeks later that was changed to a walking cast with the foot in a more neutral position. That cast was removed after three weeks. Thereafter a raised shoe and physiotherapy featured in his treatment as did painkilling and anti-inflammatory drugs. He became a regular visitor to his general practitioner for the management of inflammation and pain. He was encouraged to exercise, and by the beginning of 1998 was doing so although he found jogging properly impossible. He was initially absent from work for 10 weeks, which all doctors agreed was a reasonable period. He had some intermittent absences thereafter. On his return he was able to carry out only about 50% of his normal physical duties but gradually that percentage increased. He was fortunate in having an understanding superior. When he returned to work he still suffered significant pain. To this day he continues to experience pain in his foot and ankle which counsel for the defenders accepted was probably attributable to the initial injury and probably located in the sheath of the tibialis posterior tendon. Surgery might or might not resolve that. It is likely to remain but not to deteriorate. The rupture has repaired well. The most significant unavoidable consequence of such an injury is loss of bulk in the calf muscle which will remain at about 80% of its previous bulk. In addition there is a very slight loss of dorsi-flexion in the left ankle. The pursuer will not be able to return to five-a-side football. He should be able to resume some of his other sporting interests. Mr Annan seemed fairly confident that he would be able to return to jogging, the pursuer found proper jogging impossible and Mr Brown was doubtful. At work his major problem is in climbing steps and ladders, particularly ladders with narrow rungs. His natural inclination is to try to keep his foot as level as possible to try to protect his tendon. That makes climbing awkward.

[29] In evaluating solatium I take account of the initial pain and suffering, the medium term continuing disability and pain, the long term permanent loss of function and the ongoing pain. The pursuer is a relatively young man, still only 31 years of age, and will not be able to return to his favourite recreation of football, both indoor and outdoor. His enjoyment of other sporting activities will undoubtedly be reduced because of the long term, albeit minor, reduction in movement in his ankle and the reduction of his calf muscle bulk. I consider an appropriate figure for solatium is £10,000. Both counsel were agreed that interest should run on two-thirds of whatever figure was fixed, and that amounts to £1,733.

[30] By Joint Minute past wage loss was agreed at £2,791 with interest of £875. Counsel for the defenders accepted that it was appropriate to make an award for the disadvantage the pursuer would suffer in the labour market were he to lose his present job. However, he pointed out that the pursuer had acknowledged that his job was secure. He invited me to make a nominal award. Counsel for the pursuer invited me to make a substantial award reflecting the real difficulty the pursuer would have were he to lose his job. Although there is no immediate threat to the pursuer's job, the fact remains that, if for any reason he were to lose his job, it would be more difficult for him to find a new one in his present condition than in his pre-accident condition. I consider it right to reflect that difficulty by awarding a substantial part of one year's wages as a modest figure reflecting the potential difficulty. I consider £5,000 to be appropriate.

[31] There is a claim for additional expenditure. The pursuer and his wife have a garden. The pursuer used to cut the grass with a cylinder mower. It is difficult to push. He acquired a Flymo. The cost was not vouched, but both he and his wife spoke to a figure of £80 or more. He requires to bathe his foot regularly and acquired a foot spa at a price he recollected was about £60. He has also had to pay for prescriptions at various times. The price may be £6.20 now, but was less at earlier stages. I consider that £50 would be a fair reflection of his expenditure on prescriptions. All three of these items seem to me to have been reasonably incurred and I accordingly award £180 for miscellaneous expenses.

[32] The final claim is for services. Both the pursuer and his wife estimated that in the early stages Mrs Kirk spent between 21/2 and 4 hours per day attending to the additional needs of the pursuer and doing additional tasks around the house which he had formerly done. In the early stages, when he was laid up, she had to help him in and out of the bath two or three times each week, help him up and down stairs, assist him to dress and undress and make all his food including cups of coffee. In addition she had to do gardening, clean windows, do odd jobs around the house such as changing light bulbs and attend to all the shopping, which were things he did. Since Mrs  Kirk could not drive, the pursuer's brother helped out by driving her to the shops and driving the pursuer to his doctor and hospital appointments. From about the middle of October the pursuer was able to resume driving. Since that time his brother has given very occasional assistance with heavy work in the garden. Mrs Kirk continues to help in the garden with awkward work, which she frankly dislikes, such as weeding in difficult corners and sweeping up. I do not consider that any award is appropriate under this head for the future. It should be possible for Mr and Mrs Kirk to reallocate their various domestic duties, many of which can be described as uncongenial, to reflect their changed circumstances. For the past I consider a figure of £2,500 reflects the services provided and the pursuer's inability to provide services. I see no reason why interest should not run on that figure at 4%, a total of £421.

[33] The total of these various awards is £23,500. I shall repel pleas-in-law 1 to 5 for the defenders, sustain the first plea-in-law for the pursuer and pronounce decree for £23,500.