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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Elder v. R D Dumbreck & Son Ltd [2003] ScotCS 134 (9 May 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/134.html Cite as: [2003] ScotCS 134

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Elder v. R D Dumbreck & Son Ltd [2003] ScotCS 134 (9 May 2003)

OUTER HOUSE, COURT OF SESSION
A2363/00	OPINION OF LORD BRODIE in the cause KATHLEEN ANN ELDER Pursuer; against R D DUMBRECK & SON LIMITED Defenders: ________________

Pursuer: Springham; Digby Brown

Defenders: Cruickshank; The Anderson Partnership

 

9 May 2003

Introduction

1. In this action the pursuer sues for damages in respect of personal injury which she avers was sustained by her in an accident which occurred on 20 August 1997 while she was working in the course of her employment with the defenders as a mushroom picker and grader at the defenders' premises at Freuchie Mill, Freuchie.
2. The issue between the parties is relatively narrow. They are agreed that the pursuer did indeed suffer injury while at work on 20 August 1997. They are agreed (subject to a matter of detail as to interest to which I shall return) that if the defenders are liable in damages to the pursuer in respect of that injury, the full value of the pursuer's claim for reparation, inclusive of interest, is £17,250. They are further agreed that, if an accident occurred in the way which is averred by the pursuer, then it was the result of breaches by the defenders of their statutory duties in terms of regulations 5 and 20 of the Provision and Use of Work Equipment Regulations 1992 and that, in that event, the defenders are accordingly liable to the pursuer in the agreed sum of damages. Cases of negligence and breaches of the Workplace (Health, Safety and Welfare) Regulations 1992 are averred on record but were not insisted upon.
3. The proof commenced on 18 March 2003. It concluded on 21 March 2003. Miss Springham, Advocate, appeared on behalf of the pursuer. Mr Cruickshank, Advocate, appeared on behalf of the defenders. The witnesses led for the pursuer were: the pursuer; Mrs Jackie Crawford, who was a fellow employee of the pursuer at the time of the alleged accident; and Mr John Stewart, a safety practitioner. The witnesses lead for the defenders were: Mrs Marlene Veitch, another fellow employee of the pursuer; and Mr Walter Cameron, a health and safety consultant. In addition to that evidence, certain matters were agreed by way of a Joint Minute which was lodged on 19 March 2003.

The relevant statutory provisions

[4] It is convenient to note the terms of the provisions which, the parties are agreed, give rise to liability in the event that the pursuer's averments are held to have been proved. Regulation 5 of the Provision and Use of Work Equipment Regulations 1992 provides:

"5. -(1)  Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided.
 (2)  In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment.
(3)  Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.
(4)  In this regulation "suitable" means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person."

Regulation 20 of the same Regulations provides:

"20. Every employer shall ensure that work equipment or any part of work equipment is stabilised by clamping or otherwise where necessary for the purposes of health or safety."

 

The pursuer's place of work and the work equipment provided for her use

4. As at 20 August 1997 the defenders were commercial growers of mushrooms. They had premises at Freuchie Mill, Freuchie, and at Greenmyre Mushroom Farm, Dunshalt, Cupar. The pursuer began work as a mushroom picker and grader at Freuchie Mill about six months prior to August 1997. She was working there on 20 August 1997. At Freuchie Mill mushrooms were grown in large sheds, referred to as "houses". The pursuer's recollection was that there were twenty four such houses at Freuchie Mill. Each house had a similar layout. Production 6/2 is a series of ten photographs taken at Freuchie Mill within one of the houses there on the occasion of a visit arranged by the pursuer's solicitors in order that the pursuer might show them where the accident complained of had happened. Production 7/10 is a series of twelve photographs taken at Greenmyre Mushroom Farm, again within one of the mushroom houses.
5. Both Mr Stewart and Mr Cameron prepared reports which were lodged as productions. Their evidence was taken under reference to these reports. Mr Stewart's report is production 6/1. Mr Cameron's report is production 7/9. Both reports contain descriptions and measurements of the pursuer's place of work and the work equipment which was supplied for her use. I found these reports to be helpful and I have relied upon them in making the findings in fact which follow. I have adopted the measurements which appear in the two reports but I did not understand either Mr Stewart or Mr Cameron to have been concerned to provide absolutely exact dimensions. Mr Stewart described what he was reporting as "broad dimensions" and I have regarded them accordingly.
6. Photograph 9 of production 6/2 illustrates the central passageway (otherwise the "main aisle") running the length of one of the mushroom houses at Freuchie Mill. In the houses mushrooms were grown in soil or similar material placed in substantial wooden trays or boxes, each of which was about 1.8 metres (6 feet) in length and about 1.3 metres (52 inches) in width. The boxes were stacked one on top of another, four high. Wooden uprights were attached to the top and bottom of the boxes, so holding them apart and thus providing a space of about 325 millimetres (13 inches) between the surface of the soil in one box and the base of the box above. Mushroom pickers were therefore able to get access between the boxes and so pick mushrooms. This arrangement of boxes is illustrated in photograph 3 of production 6/2. As can be seen from that photograph, the lowest of the four superimposed boxes rests, at its corners, on three bricks laid one on the top of the other. The floor beneath is smooth concrete or cement. Two such four high arrangements of boxes, placed end to end in the form of a rack, extend, on the left hand side of photograph 3, away from the position of the photographer and towards the wall of mushroom house. In parallel to that rack there is a similar rack, situated on the right hand side of the photograph. The figure in the centre of the photograph is the pursuer. She stands in a passageway formed by the space between the two racks of boxes. In evidence this passageway was referred to as a "row". It is about 750 millimetres (30 inches) in width. It makes a right angle with the main aisle running the length of the mushroom house. Part of that main aisle is shown in the foreground of photograph 3. As can be seen from photograph 9 of production 6/2, racks of boxes, with similar rows between them to that shown in photograph 3, extend in a parallel from each side of the main aisle of the mushroom house. There were eight rows on each side of the main aisle in each mushroom house.
7. The pursuer is 5 foot 4 inches in height. As is apparent from photograph 3 of production 6/2, the surface of the soil in the third box from the ground is at about her eye level. The height of the fourth box from the ground (at about 2 metres or 80 inches) is well above her head height. In order that the pursuer and her fellow employees might get access to pick mushrooms from the two upper boxes, the defenders provided what is referred to in the pleadings as mobile scaffolding. In the evidence this mobile scaffolding was generally referred to as a "trolley". When beginning work a mushroom picker would collect a trolley for her use (all the mushroom pickers who were mentioned in evidence were female). There were a number of such trolleys at Freuchie Mill. All were of the same basic design. Mr Stewart understood them to have been made locally rather than by a specialist manufacturer. A trolley is illustrated in photograph 4 of production 6/2. Its overall appearance is suggestive of a mobile step ladder. A trolley was constructed from a framework of horizontal, vertical and (two) diagonal solid steel bars. The framework was mounted on four castor wheels. The framework incorporated five sheets of wood. The sheets of wood were positioned parallel to the floor, at heights of, respectively, 12 inches, 24 inches, 36 inches, 60 inches and 72 inches from floor level. They provided three steps on which a mushroom picker might stand while picking mushrooms and then, above the steps, two shelves. Picked mushrooms were placed in plastic boxes. Examples of these plastic boxes are shown, for example, in photograph 8 of production 6/2. Plastic boxes might be placed on a step or one or other of the shelves of a trolley. The width of a trolley was about 575 millimetres (23 inches). The height from the ground to the upper of its two shelves (the highest point of a trolley) was about 1.75 metres (70 inches), as measured by Mr Stewart, or 72 inches, as measured by Mr Cameron. The castor wheels on which a trolley was mounted were of metal with rubber tyres. They were 4 inches in diameter. They were positioned so as to form a wheel base which was 40 inches in length and 20 inches in width. The pair of wheels at what Mr Stewart described as the "front", and Mr Cameron described as the "low end", of a trolley (that is the elevation nearest the photographer in photograph 4 of production 6/2) were mounted so as they might swivel through 360 degrees. Photograph 10 of production 6/2 illustrates a swivel mounted wheel. The other two wheels (described by Mr Stewart as the rear wheels) were placed in a fixed mounting.
8. Photograph 7 of production 7/10 illustrates an employee of the defenders standing on the third step (36 inches from the floor) of a trolley placed within a row in a mushroom house at the Greenmyre Mushroom Farm. Photograph 8 of production 7/10 shows the same employee stretching her left arm over the fourth mushroom box from ground level (described by the pursuer in her evidence as the top box), a position which might be adopted by a mushroom picker. The employee is leaning to her left. Her right hand rests against the top of the fourth box. The top of the box is at about her chest height.
9. As is obvious from the provision of wheels, a trolley was intended to be capable of being moved. Mr Cameron accepted in cross-examination that there would be no point in having trolley if it could not easily be moved, although he did not accept that a trolley could easily be moved if someone was standing on it. The pursuer spoke in evidence to moving a trolley (when no one was standing on it) both by pushing it and by pulling it. Mr Stewart spoke to his having moved a trolley "with one hand" both along the main aisle and in a row. A trolley had no braking mechanism.
10. There was an issue between the parties as to how readily the trolleys were capable of movement when a person was standing on them, it being the pursuer's position that that was what had happened on 20 August 1997 and that she had suffered injury as a result. It was accepted by the pursuer in cross-examination that a trolley was large and heavy. Mr Stewart confirmed that its framework was made from solid rather than tubular steel. Nevertheless, according to the pursuer, "quite a few" of her fellow employees had had the experience of a trolley slipping under them and being hurt in consequence. She specifically mentioned Jackie Crawford and Morag Proudfoot. This was not spoken to by Mrs Crawford when she came to give evidence. However, Mrs Crawford did accept that when standing on a trolley she had had the experience of it moving away from her if she was leaning against a mushroom box. She explained that a trolley could possibly move if a mushroom picker was picking from the top box and she pushed against that box. Movement was unlikely unless a mushroom picker was leaning against a box. While cross-examination appeared to confine Mrs Crawford's allowance of the possibility of movement to movement across a row (because a picker would be leaning over the top mushroom box and, to the extent that she was pushing against the box, the push would be in that direction), in re-examination she accepted that a trolley with someone standing on it might move in the direction of the length of a row. Marlene Veitch also spoke to the experience of a trolley moving when she was standing on it. A trolley might move, according to her, very occasionally. It all depended on how far the person standing on the trolley had to stretch in order to pick mushrooms. Mrs Veitch was aware of least two people who had suffered accidents in this way. As Mr Cruickshank came to submit, it was not, however, explored with Mrs Veitch just exactly how this had come about.
11. Mr Cameron offered objective evidence as to how readily the trolley might move. On the occasion of a visit to Freuchie Mill on 8 June 2001 he had attached a spring balance (designed to measure weight) to a trolley and measured the force required to move it (by pulling on the spring balance) at 9 pounds. He described that as "quite a strong force". According to Mr Stewart an equivalent force might be required in order to open the door of the courtroom. Mr Cameron had also carried out an experiment in order to ascertain whether, when standing on the third step of a spare trolley which he had found outside the workplace, he could make it move by bending his knees in an attempt to exert a downward force. He could only make this trolley move a few inches. Mr Cameron explained that in carrying out his experiment no part of his body extended beyond the wheel base of the trolley. Mr Cameron further reported his observations of employees of the defenders working from trolleys on the occasion of his visit to Freuchie Mill on 8 June 2001. He noted plenty of body movement as they leaned over to pick mushrooms but saw no sign of untoward movement of the trolleys.
12. Miss Springham submitted that the evidence of the pursuer, Mrs Crawford and Mrs Veitch was all to the effect that a trolley might move when someone was standing on it in order to pick mushrooms. Under reference particularly to Mrs Crawford's evidence, Mr Cruickshank submitted that what was established was that there was unlikely to be movement when a mushroom picker was standing on a trolley but movement could occur if the mushroom picker pushed against a box. Some force would, however, be required. Mr Cruickshank accepted that Mrs Veitch did not go the distance in her evidence of saying that she would have to push against a box in order to make a trolley move when she was standing on it, but he stressed that no evidence had been taken from Mrs Veitch as to the precise circumstances in which she had experience of a trolley moving when someone was standing on it. There was therefore nothing to qualify what Mrs Crawford had said about the need to push against a box if a trolley was to move when someone was standing on it. Mr Cruickshank further stressed the importance of distinguishing between movement across a row and movement in the direction of the length of a row.
13. It is not known which particular trolley was the trolley which was involved in the accident. In reviewing the evidence as to how readily a trolley might move when someone was standing on it, I therefore bore in mind that the trolleys at Freuchie Mill, while similar one to another, were the product of local and, I inferred, small-scale and not entirely uniform, manufacture. The behaviour of one trolley might therefore not exactly replicate the behaviour of another trolley. I bore in mind that the condition of a trolley in June 2001, when a trolley at Freuchie Mill was experimented on by Mr Cameron, as described in paragraph [12], would not necessarily have been identical to its condition on 20 August 1997. I had regard to Mr Cruickshank's analysis of the evidence bearing on the matter, as summarised in paragraph [13] above. Having regard to all of that, I concluded that the movements of a mushroom picker while standing on a step of one of the trolleys provided for the use of their employees by the defenders and engaged in picking mushrooms from the top mushroom box might, inadvertently, cause the trolley to move, not only a few inches across a row but also a somewhat longer distance along the length of a row. For this to happen it may be that the mushroom picker would have to lean not only to the side but also somewhat forward of the centre of gravity of the trolley and to make contact either with an adjacent box or the soil within such box.

The accident

14. As I have already indicated, the defenders did not dispute that the pursuer sustained accidental injury on 20 August 1997. They did, however, dispute that an accident occurred, or, indeed, could have occurred in the manner averred by the pursuer. What was put to the pursuer in cross-examination (and denied by her) was that she had simply slipped on the step, that being the reason why she fell.
15. The relevant averments on behalf of the pursuer are to be found at page 5D of the Closed Record, as amended. They are as follows:

"The pursuer was standing on the top step of the trolley. As she was leaning over picking mushrooms, the scaffolding moved underneath her. She fell backwards, catching her right leg in the crossbar of the scaffolding. Her left leg became trapped between the mushroom boxes and the scaffolding. As a result, the pursuer sustained the loss, injury and damage hereinafter condescended upon."

That is what the pursuer set out to prove and had to prove, if she was to succeed.

16. When giving evidence, the pursuer was unsure as to which house she was working in on 20 August 1997. House 14 is the house referred to on record. In evidence the pursuer said that that number "sounds familiar" but she had difficulty in remembering the date of her accident or the number of the house in which it occurred. She was, however, able to say that she had started work at around 8.30 am on the day in question. At some time between 10 and 11 am she was picking mushrooms from the top box. She was standing on the third step of a trolley (and therefore 3 feet from the ground). The trolley, she explained, was positioned within a row "facing towards the aisle". By that, as she confirmed in cross-examination, the pursuer meant that what Mr Stewart referred to as the front of the trolley was nearer the wall. The trolley was therefore oriented in the same way as the trolley illustrated in photograph 6 of production 6/2. According to the pursuer, the trolley was 2 or 3 inches at most from the racks which delineated each side of the row. In this she must be correct, given the width of the trolley (23 inches) and the width of the row (30 inches). The pursuer was picking from the top box to her left (as she faced the aisle). Her position was accordingly (as the pursuer confirmed in cross-examination) similar to that being adopted by the employee shown in photograph 8 of production 7/10, albeit that the trolley on which she was standing might have been somewhat further away from the aisle than the trolley in that photograph would appear to be and, when giving evidence, she demonstrated a more pronounced lean to the left than that which is being adopted by the employee shown in photograph 8 of production 7/10 (as she explained in cross-examination and emphasised in re-examination, it would be necessary for a mushroom picker to be looking at the mushrooms she was picking and her head would therefore be turned away from the aisle). That someone standing on the third step of a trolley and picking mushrooms from the top box might have to stretch was confirmed by Marlene Veitch. As she was so engaged, it was the pursuer's evidence that she felt the trolley move from under her, in the direction of the main aisle, with the result that she fell backwards. By that I understood her to mean that she had fallen away from the aisle. She ended up, she said, with her left leg trapped "between the boxes and the trolley" and her right leg "caught in the cross diagonal frame at the side of the trolley" (by which I took her to mean caught within a part of the framework of the trolley which was partly circumscribed by a diagonal steel bar). She could not be more precise. She slipped backwards and "ended up upside down". She had to right herself. She came to be kneeling on a step. She sat down. As a result of this accident she injured her back. When she fell the pursuer said that she gave out a yell but a lot of radios were playing and people were chatting, although there was no machinery noise. She did not think that anyone heard her. According to the pursuer Marlene Veitch had been working in the row opposite, on the other side of the aisle. No one else was present in the immediate vicinity. After a "short time" (in examination in chief the pursuer particularised this as "a couple of minutes", in cross-examination she put it as "could have been seconds, not more than minutes") Mrs Veitch came to pull the trolley out from the row. By that time the pursuer "would have been either kneeling or sitting on a step, I cannot remember which". She said to Mrs Veitch, "It slipped". The pursuer spoke to the defenders' supervisor, Mary Crichton. She told her that she had been hurt. Ms Crichton directed the pursuer to go to the toilet in order to see what her injuries were. Thereafter she reported the accident to the manager, Mr Dennis. The pursuer thought that she had told Mr Dennis that she had slipped and hurt herself. An entry was made in the Accident Book but it was not clear from the evidence as to who had written the entry or whether the pursuer had signed it. Mr Dennis asked the pursuer whether she wished to go back to work but she went home.
17. Mrs Veitch's evidence was that on the occasion of the pursuer's accident in August 1997 she had been working in the same row as and close to the pursuer, not, as the pursuer had indicated, in the row opposite. Mrs Veitch was quite definite about that. She recollected having been told to help the pursuer. Mrs Veitch was uncertain as to which box she was picking from. She was uncertain whether she was standing on her trolley or working from the floor. She had her back to the pursuer. She became aware of mushrooms falling down. She heard a noise - "not a very loud noise". She immediately turned to see what had happened. The pursuer looked as if she had slipped forward. Her head was "on the top shelf of the trolley". She was looking straight at Mrs Veitch. The pursuer's knee was "probably below the platform ...either on the edge or below the platform" (by "platform" I understood Mrs Veitch to be referring to one of the steps of the trolley) but Mrs Veitch was not certain about this - "I did not really pay attention". However, she was able to say that, when she turned round to see what had happened the pursuer was not trapped upside down. Mrs Veitch did not see the pursuer's legs trapped by the side of the trolley but the pursuer did say that she had hurt her leg. That was all she said. Despite questioning designed to elicit this information, she did not speak to the defenders' averment, to be found at page 7B of the Closed Record, that "[the] pursuer stated that she had slipped." Mrs Veitch did not ask the pursuer how her accident had happened.
18. Neither party led evidence as to the terms of the record of the accident which had been made in the Accident Book.
19. As I have indicated, Mr Stewart had had the opportunity of observing and measuring a trolley similar to that on which the pursuer had been standing when she suffered her accident. The pursuer's account of her accident was put to him when he gave his evidence. He was asked whether he could envisage such an accident as having happened. He said that he could. He explained that, on the pursuer's account, she would have been leaning into the rack and her body's force would have been pushing away from the rack. Mr Cameron, on the other hand, considered it impossible for the accident to have happened as the pursuer had described it, had she been standing on the trolley on which he had carried out his experiment (and, presumably had that trolley been in the same condition on the date of the alleged accident as it had been on the day of the experiment) but he did accept, albeit reluctantly, that an accident, as described by the pursuer, was possible had the trolley involved been a different one from that which he had examined.
20. The pursuer accordingly spoke in evidence to the mechanism of accident which is pled on her behalf on Record. Both Mr Stewart and Mr Cameron (reluctantly) spoke to such a mechanism being possible. While it is true to say, as Mr Cruickshank submitted, that Mr Stewart did not provide any more detailed explanation as to how he envisaged the accident to have occurred than I have recorded at paragraph [20] above, I have found nothing in the evidence which would lead me to do other than accept that the occurrence of an accident as described by the pursuer is a possibility. Mrs Veitch provided corroboration that the pursuer suffered an accident of some sort on the date in question but, as was recognised by Miss Springham, Mrs Veitch's evidence was not supportive of the particulars of the pursuer's account. That puts the pursuer's credibility and reliability sharply in issue. On that I had the benefit of submissions by counsel.
21. Miss Springham commended the evidence of the pursuer which she submitted should be accepted by the court. In contrast, the court should hesitate before accepting Mrs Veitch's evidence. Mrs Veitch was uncertain on a number of matters: the level at which she was working when she realised that something had happened, whether she was picking on the left or right side of the row, and whether she was working from her trolley or from the floor. Notwithstanding that she did not now know where she was or what she was doing at the time, she was not prepared to countenance the possibility that she was wrong in saying that she had been working in the same row as the pursuer. This was in contrast to the pursuer who, while having no recollection of Mrs Veitch being in the same row as her, was prepared to accept that as a possibility. Miss Springham did not dispute that there were differences as between the evidence of the pursuer and that of Mrs Veitch. That, she said, was only natural. However, the court should be slow to prefer Mrs Veitch over the pursuer.
22. Mr Cruickshank's submission was that the pursuer and Mrs Veitch had presented competing accounts of what had occurred: two conflicting bodies of evidence which cannot be reconciled, was the way he put it. He focused on the features that, according to Mrs Veitch, she had been working in the same row as the pursuer, whereas the pursuer's account had Mrs Veitch in the opposite row, on the other side of the main aisle; and that Mrs Veitch had seen the pursuer immediately after the accident, in a position different to that described by the pursuer in her evidence - neither with her legs trapped nor upside down. The court accordingly had to choose between them. He invited the court to exercise that choice by preferring Mrs Veitch who, he submitted, was to be regarded as a credible and reliable witness, over the pursuer who, he submitted, should be found to be both incredible and unreliable. Mr Cruickshank's position was that the pursuer had lied in the witness box and that she must have lied when providing information to her legal advisers. He accepted, this being a point which had been taken by Miss Springham, that he had not put that allegation to the pursuer in the course of his (it might be said, fairly robust) cross-examination. Mr Cruickshank had, however, as he reminded me, put it to the pursuer that she was "exaggerating" and that he had done so on a number (I noted three) occasions during that cross-examination.
23. Having indicated the discrepancies between the pursuer and Mrs Veitch, Mr Cruickshank turned to other aspects of the pursuer's evidence which, he said, reflected adversely on the credibility and reliability of the pursuer. He pointed to the references to the height at which the pursuer was said to have been working at the time of her accident which appeared in the Summons (5 feet from the ground); page 5 of the records of the Benefits Agency, production 7/4 (5 to 6 feet up); page 104 of production 7/4, a form filled in by the pursuer, (6 feet approximately from the ground); and the report of the surgeon instructed on the behalf of the pursuer, Mr Benedict Clift, which was dated 14 October 2000, production 6/3 (head height estimated at about 12 feet from the floor). The source of the information in all these references can only have been the pursuer. When challenged about this in cross-examination the pursuer had responded by stating that she was "a registered dyslexic" who had problems with figures and yet, said Mr Cruickshank, she was able accurately to give the height from the ground of the third step of the trolley at 3 feet. In examination in chief the pursuer had said that after she fell it took "a couple of minutes" for Marlene Veitch to come and help pull her trolley out but in cross-examination she altered this to "could have been seconds". This, said Mr Cruickshank, was an attempt on the part of the pursuer to make her evidence fit in with what she apprehended Mrs Veitch would say. Moreover, the pursuer was deliberately awkward and obstructive in giving answers during her cross-examination. She claimed to require reading glasses when referred to the general practitioner records, production 7/1 but was nevertheless apparently able to read the very small print in the payroll records, productions 6/5 and 6/6. As the pursuer had conceded in cross-examination, these payroll records did not support the pursuer's averments at page 11 B of the Closed Record that she had worked as a supply nurse at various hospitals for approximately 30 hours per month. The pursuer had said in evidence that she had injured her back in the accident and that she had complained immediately. This was not supported by Mrs Veitch, who only spoke to her complaining of leg pain, nor the terms of the Victoria Hospital, Kirkcaldy, Accident and Emergency Department admission sheet, page 43 in production 7/1 which refers to injury to the right and left legs but not to the back (it also appears to refer to a fall from about 5 feet).
24. Taking all these matters together, submitted Mr Cruickshank, allowed the court to come to the conclusion that the pursuer was an incredible and unreliable witness. All the matters to which he had drawn attention were inextricably tied up with the account as a whole. Why, Mr Cruickshank asked rhetorically, has the pursuer made up all these stories if she genuinely had had an accident? The court should therefore reject the whole of her account and, critically, that part which referred to the trolley moving and so causing the pursuer to fall.
25. Miss Springham had, in large part, anticipated these criticisms of the pursuer's evidence and had provided a response when she made her submissions initially. As I have already noted, she pointed to the failure by Mr Cruickshank to put it in terms to the pursuer that he was contending that she was lying. On the matter of the height at which the pursuer had been working, witnesses are notoriously unreliable as to distances and heights. Here, the pursuer had explained that she was not good with heights. There was a danger of putting passages from documents to a witness out of context. It was Miss Springham's submission that, on a fair reading, the reference in the Summons was to the height of the mobile scaffolding. There was simply no evidence to the effect that the pursuer had ever given an account to anyone which included the information that at the time of her accident her feet were 6 feet or thereby above ground level. Little reliance could be placed on the Victoria Hospital Kirkcaldy Accident and Emergency Department admission sheet, page 43 in production 7/1. It inaccurately stated both the pursuer's address and the place of her injury. There was a question over the reliability of the payroll records, productions 6/5 and 6/6, but, more importantly, when asked, the pursuer did not shy away from the fact that these records did not appear to show her working at the level of 30 hours per month, at least at the time of the accident. The records did, however, show that she had worked as a nursing auxiliary and the importance of this for the quantification of damages, which is what the pleadings were addressing at page 11 B of the Closed Record, was that she had not been able to return to this work as a result of the accident.
26. I agree with Miss Springham that if a cross-examiner's position is that a witness is lying, it is only fair to the witness (and, incidentally, of assistance to the court) to make that quite clear at some stage in the cross-examination. I also agree with Miss Springham that, in normal usage, suggesting that someone is exaggerating is materially different from suggesting that he or she is lying. That said, close to the end of his cross-examination, Mr Cruickshank did put to the pursuer an alternative explanation for the accident: that she had simply slipped on the step, there being no question of the trolley moving. That was a fairly clear indication to the pursuer that the cross-examiner was challenging her account of the accident as being false. The pursuer therefore was given the opportunity to deny the truth of the alternative account, which she did. In the circumstances, I consider that it is open to Mr Cruickshank to submit that the pursuer should be disbelieved and that is a submission which I must consider.
27. The pursuer and Mrs Veitch were being asked about events which occurred unexpectedly over a very short period of time more than five years ago. It does not, in these circumstances, appear to me to be very realistic to expect complete accuracy from either witness. Allowing for that, I did consider that there was force in at least some of Mr Cruickshank's criticisms of the pursuer as a witness. I did not find her to be reliable in matters of detail. An example of this is the height of the step on which she was standing at the time of the accident. Notwithstanding what was said by Miss Springham, I take the various references to 5 feet or 6 feet which appear in the documents to which I was referred as indicating that, for whatever reason, the pursuer has given accounts of her accident which included the alleged fact that she had been standing with her feet at about 6 feet from ground level. Another example of what is, at best, a looseness of expression in the pursuer's evidence, was her estimate of the time taken by Mrs Veitch to come to her assistance from the time she fell. This was of importance in that it bore directly on what was to be made of Mrs Veitch's evidence as to what she had seen when she turned round on becoming aware that something had happened. A "couple of minutes", in examination in chief, became "could have been seconds, not more than minutes" in cross-examination. These answers suggested to me that the pursuer had really no idea as to how long it was before Mrs Veitch came to her assistance beyond that it was a short period of time, but that she was nevertheless prepared to offer what were only guesses without very scrupulous concern as to their accuracy. While is true that the pursuer's evidence (under reference to the payroll records) on working as a supply nurse did not match the averments made on her behalf, I was not inclined to place much emphasis on this in that there are a variety of reasons why what is averred and what is spoken to in evidence might be different. It did not appear to me to be a necessary inference on the evidence that the pursuer had exaggerated or otherwise misrepresented the position to her professional advisers. I also found it difficult to draw inferences adverse to the pursuer from the fact that she said that she complained of back pain whereas that was not supported by Mrs Veitch or the hospital record. The pursuer might have been wrong in what she said in evidence but, equally, so might Mrs Veitch (who, admittedly, notwithstanding Miss Springham's criticisms, impressed me as credible and reliable witness) and the hospital records.
28. While I was persuaded, in the whole circumstances, that the pursuer's evidence should be looked at with some care, having done so, in the light of the submissions made by counsel and the impression I gained when listening to her give evidence, I have not concluded that the pursuer was lying when she gave her evidence as to the circumstances of her accident or that she had lied about that in the past. I nevertheless had to consider Mr Cruickshank's submission that the court had a stark choice to make between accepting the pursuer's account and accepting the account of Mrs Veitch. I have already indicated that I was favourably impressed by the evidence of Mrs Veitch. I took her to be credible and, with the qualification noted at the beginning of paragraph [27] above, reliable. Accordingly, if I had found Mrs Veitch's evidence to be necessarily contradictory of that of the pursuer I considered that it would not have been open to me to find that the pursuer had satisfied the onus, which was on her, of establishing the version of events spoken to by her. On a matter where Mrs Veitch's evidence clearly was contradictory of what the pursuer had originally spoken to, that is, where she was working at the time of the accident, I preferred Mrs Veitch. I therefore took her to be working in the same row as the pursuer at the time of the pursuer's accident. However, I did not find it established on Mrs Veitch's evidence that she necessarily turned round to look at the pursuer immediately the pursuer fell. Mrs Veitch did not see the pursuer slipping or falling. At that moment Mrs Veitch had had her back to the pursuer. By the time Mrs Veitch turned round the pursuer looked to her as if she had slipped forward but Mrs Veitch did not see that happening. Mrs Veitch said that she had turned immediately but what caused her to turn was becoming aware of mushrooms falling. She heard a noise, but "not a very loud noise". She did not speak of hearing a yell. She could not say that it was the act of the pursuer falling or slipping which had caused the mushrooms to fall and so attracted her attention. Accepting Mrs Veitch's account, it appeared to me to be possible that the pursuer had fallen backwards, as she described, but that by the time Mrs Veitch turned round she had, as she put it, righted herself to the extent of having come to be in the position in which she was seen by Mrs Veitch. On that view, the falling of mushrooms which had alerted Mrs Veitch to something having happened might have been the result of the pursuer righting herself rather than the pursuer falling or slipping. I therefore concluded that Mrs Veitch's evidence was not necessarily contradictory of the critical part of the pursuer's account which was that she had fallen backwards and so injured herself by reason of an inadvertent forward movement of the trolley.
29. Taking everything into account, as best as I could, I concluded that the pursuer had established, on a balance of probabilities, the averments to be found at page 5D of the Closed Record which are narrated at paragraph [16] above. As I have already indicated, in that event the parties are agreed that the defenders are liable to make reparation to the pursuer and, consequently, to make payment of damages in sum agreed in the Joint Minute.

Decree

30. The Joint Minute entered into between the parties includes the following as its paragraph (1):

"That the parties are agreed that the full value of the pursuer's claim for reparation, inclusive of interest, is SEVENTEEN THOUSAND AND TWO HUNDRED AND FIFTY POUNDS (£17,250) STERLING. The parties are also agreed that there are no benefits which can be off-set against that amount in terms of the Social Security (Recovery of Benefits) Act 1997."

A difference of opinion between counsel as to the meaning and effect of this paragraph in the Joint Minute emerged during submissions. Miss Springham moved me to grant decree in the sum of £17, 250 together with interest, at what she described as the modest rate of 4 per cent, on two thirds of that amount from the date of the proof until payment. It was Miss Springham's understanding that counsel had agreed quantum at £17,250, inclusive of interest as at the first day of the proof (18 March 2003). It followed that the pursuer was entitled to interest from that date until such future date as payment was made under the prospective decree which she had moved me to pronounce. Were I eventually to find for the pursuer but to be dilatory in doing so, the pursuer might be out of her money for a period of months without any compensation. This would not be just. Miss Springham reminded me of the power conferred on the court by section 1 of the Interest on Damages (Scotland) Act 1971. She referred me to the decision of the First Division in Cusick v Campbell 2002 SCLR 581 as an example of interest being awarded on damages for personal injuries from the date of conclusion of the proof. Mr Cruickshank's position was that, were I against him on the question of liability, I should grant decree for £17, 250 with interest (at the judicial rate) from date of decree but not from any earlier date. That is the meaning and effect of paragraph (1) of the Joint Minute.

31. I preferred Mr Cruickshank's submission. A joint minute is of the nature of a contract and is to be construed accordingly. I can only read paragraph (1) of the Joint Minute here as meaning that the parties have agreed that "the full value of the pursuer's claim for reparation, inclusive of interest" (emphasis added) is £17,250." That being what parties have agreed, it is not for the court to find otherwise, whatever the court's view as to what would be just, although I have to add that, in this case, the court is in no position to come to a view as to what would be just in the matter of interest. The court had no information as to the basis upon which the figure of £17,250 was arrived at beyond the fact that it did include some provision for interest. It is to be inferred that it is a compromise figure, but how that compromise was arrived at is not something that the court knows anything about.
32. I therefore uphold the pursuer's first plea-in-law, insofar as it relates to breach of statutory duty. I repel the defenders' first, second and third (insofar as it relates to breach of statutory duty) pleas. I grant decree for payment by the defenders to the pursuer of the sum of £17,250 with interest at the rate of 8 per cent a year from the date of decree until payment. I do not propose to do anything in relation to the pursuer's second plea-in-law or the defenders' fourth plea-in-law, unless I am invited to do so. I meantime reserve all questions in relation to expenses.