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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morrison v. James Scott Ltd & Co [2003] ScotCS 17 (28 January 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/17.html Cite as: [2003] ScotCS 17

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Morrison v. James Scott Ltd & Co [2003] ScotCS 17 (28 January 2003)

OUTER HOUSE, COURT OF SESSION
A1784/01	OPINION OF LORD DAWSON in the cause FRANK MORRISON Pursuer; against JAMES SCOTT LIMITED AND OTHERS Defenders:   ________________

 

 

Pursuer: Clancy; Balfour & Manson

First Defenders: Hanretty; HBM Sayers

Second and Third Defenders: Clark; Paull & Williamsons

28 January 2003

1. The pursuer in this case seeks reparation in the sum of £180,000 in respect of loss, injury and damages which he claims was sustained by him through the fault and negligence of the defenders. The pursuer's date of birth is 15 April 1950. He is a married man with four children aged between 29 and 17, none of whom lived at home with him and his wife. He has three grandchildren.
2. On or about 21 July 1993 the pursuer was employed as a chargehand scaffolder with the first defenders at the Trident submarine dry dock known as Facility 210 of the Coulport Royal Naval Dockyard, Loch Long, near Helensburgh. The pursuer worked as part of a squad of three men of which he was in charge. Originally there were six or seven such squads working on the required scaffolding. He had started that employment at Coulport in September of 1992. By July of 1993 the requirement for scaffolders was almost at an end and in fact only one squad of three men remained on the job. That was the squad of which the pursuer was in charge. On 21 July 1993 the pursuer and his two colleagues were working in an area of the dry dock known as the load bank room. They were engaged in dismantling the scaffolding which had earlier been erected in that area. They required to remove the scaffolding poles from that room and take them to a vehicle which was situated on a deck above the load bank room. The two other men working with the pursuer were James Lindsay and Andrew Paterson. According to the pursuer's evidence the load bank room was a rectangular shaped room with an off-shoot where a generator was situated. It was about 20 to 30 feet long, 10 feet wide, perhaps a little more and about 6 feet high. There was one exit from that room situated at a corner where there was a set of steps which led up to the main deck. The floor in the load bank room was not a complete surface. Part of the floor consisted of gratings. The gratings were above a lower concrete surface, there being about 3 feet of space between the concrete surface and the gratings. The gratings constituted a walkway. The walkway was about 5 or 6 feet wide. Each of the gratings was about 4 feet by 3 feet. They were individual panels which fitted together by means of clips. They rested on angle irons. Their purpose was to allow access below the gratings and above the concrete flooring for the laying of cables and the like. According to the pursuer these panels were supposed to be secured by small clips to the angle irons beneath them. During the course of the day the pursuer and Lindsay had been dismantling the scaffolding and carrying the poles up the steps to the main deck where Paterson loaded them on to a truck. Again, according to the pursuer, over a period of time prior to July 1993 the individual grating panels had been removed from time to time to allow electricians and other workers to gain access underneath. They were supposed to be replaced properly after being removed for such purposes. At about 11.00am on 21 July 1993 the pursuer had removed three scaffolding tubes. Each was about 6 to 8 feet long and 11/2 inches in diameter. They were made of steel. He put the three tubes on to his shoulder in order to carry them from the load bank room up to the deck above. When he was about 4 or 5 feet from the corner at which the steps to the main deck were situated, he felt the grating move below his feet. He thought he was going to fall. He threw the tubes off his shoulder. He tried to grab something to prevent him from falling. According to his evidence the grating under his feet moved from side to side rather than dipping down. He threw the poles to one side. He spun round to stop himself falling. He reached out to grab the nearest thing. There was trunking fixed on a handrail on the internal side of the load bank room about 3 feet from the grating. He tried to grab the trunking to prevent himself from falling. He did not know if he got hold of it or not. He fell down onto the grating. He was twisting in order to grab a hold of the trunking. He felt a pain in his back which forced him down. He landed on his hip. At this point Lindsay was beside him picking up pieces of scaffolding to take out. The pursuer had no doubt that the grating moved.
3. Before this incident the pursuer had been aware that problems had been experienced regarding these types of gratings. He himself had not experienced any such problems. He could recall one incident in the load bank room where a man slipped on a slack grating, the grating having moved. The pursuer saw this happen. It was about four weeks before the incident. The matter was reported to a man called Jackie Edwards who was the first defenders' site manager. A piece of plywood was put over the grating on that occasion. The pursuer was also aware of another incident when a man fell through a grating in an adjacent room. That was about May or June 1993. A safety officer, Mr Reid, was aware of that incident. According to the pursuer quite a few other incidents occurred which involved slack or missing gratings. On other occasions scaffolders had complained to the pursuer who passed on their complaints to the safety officer. This happened on a regular basis. The pursuer estimated that ten or twenty such complaints had been made. The pursuer was shown a letter No.31/8 of process, dated 19 March 1993 which appeared to be a complaint from the main contractors to the first defenders relating to floor panels having been removed and replaced without being properly clipped. The pursuer recalled some discussion having taken place about that. No.31/14 of process, was an accident book for the Coulport site. On page 3 thereof there is an entry relating to a man James Weir. The entry is dated 26 May 1993. It is signed by Mr Reid the first defenders' safety officer. The incident is described as follows:

"As Mr Weir walked across frequency changer room floor he stood on an unsecured floor grating. The grating gave way causing him to fall to the floor below injuring left leg and right elbow."

The pursuer said that that was very like the accident which happened to him.

4. On 21 July 1993, after the pursuer had fallen to the floor, he was taken by Lindsay and Paterson to the canteen area. There they put him on a table and left him for some considerable time. Thereafter they took him home to Ardrossan in a car. Thereafter the pursuer did not work again as a scaffolder. The pursuer did not report this incident to a manager on the site. He thought that the incident had been put in the accident book at a later date. It did not occur to him to do so on the day. He thought about it a week or so later. He tried to contact the first defenders' at Coulport by phone, in order to get them to put an entry in the book. He spoke to a time-keeper who in turn spoke to a Mr Edwards, who said that he would not put it in the book. Some time after the incident, perhaps in about September, the pursuer reported the matter to DSS officials. He thought that they had caused an entry to be put into the accident book. At that time the pursuer was not employed by Scotts. The job at Coulport had in fact ceased in July 1993, as had been expected all along. The pursuer was told by the employment centre that the incident had been put in the accident book. The pursuer was also referred to No.40/1 of process, which was the accident book relating to the Coulport site. There is an entry in that book dated 18 May 1993 signed by Mr Reid. The entry, contained in No.40/1 of process, relates to an alleged accident to the pursuer. The accident is described as follows:

"Descending access ladder to cell. Last rung on ladder was impeded by pipework. Stood on pipework jarring upper back and neck. Referred to RNAD nurse who diagnosed bruising and a knot at top of back. Administered massage to top of back."

The pursuer said that he had never seen that entry before and he had no recollection of such an event ever happening.

5. On 21 July 1993 the pursuer was taken home by his colleagues. He did not seek medical help that day. He went to his general practitioner within the next day or so. When he got home his back was sore at the bottom of his spine. He could not move normally. He was helped into his house and lay on a mattress on the floor. When he went to see his general practitioner his back was slightly better and he had more mobility but still a lot of pain. He told the doctor about his back pain and also told the doctor how it had happened. At this point the pursuer was referred to an entry in the general practitioner's records relating to this first visit, which was in the following terms: "Back went when stepping off pavement". The pursuer was asked if he could explain that entry and that he said that he might have said that to the general practitioner by way of comparison. He said it was possible that he did say that because the feeling was the same. That however was not the way in which he had hurt his back.

Problems that he had experienced since his accident

6. He had had physiotherapy but by September 1993 his back was not much better. He still had pain in his lower back. It was intermittent - some days were better than others. He found it difficult to get to sleep. Sometimes the pain took him suddenly and, as he put it, took his legs from him. On these occasions he could be on the floor for three to four hours. He used a muscle relaxant and painkillers which eased the problem when they kicked in. He was mobile if he was careful. There was no question of him being able to work. By the Summer of 1994 he was not any better. Even at the time of the proof there had been no change for the better. In fact, things were worse and the pain was nearly constant. He still got the same attacks. He still was taking medication. As to the physiotherapy, he had that at Ayrshire Central Hospital in Irvine. He went six times every week. He was given exercises to do at home. He found that that did not help. He had had another two courses of physiotherapy since then. He then identified a number of documents contained in No.31/1 of process, the records of Crosshouse Hospital, Kilmarnock. In particular, he agreed that he had been discharged from further physiotherapy in about June 1996. As to other treatment he had been given, for a while an electronic pulse unit, known as a TNS, which he found was pretty good. However, the hospital took it back off him. He also had acupuncture which did not help and reflexology which he did not rate at all. The physiotherapist did refer him at one time to a pain clinic, where he spoke to a doctor, but he could not go back because his back was too bad and they never gave him a further appointment. He was then asked about problems that he had experienced before July of 1993. He accepted that he had had back pain since 1975, which had come upon him when he had been lifting his daughter and he thought that a disc popped. He was given painkillers and ordered to rest for a little while. The pain he experienced was in the same area as that which he experienced after the accident in 1993. In 1975 he had a couple of weeks off work and only saw his general practitioner about the problem. By 1980 he had started scaffolding and had some bother with his back thereafter. He saw his general practitioner a number of times but was never long off work. Between 1979 and 1993 he had worked at scaffolding continuously. It was heavy work. He had no serious problems with his back. He had no time off work through his back. He was very rarely idle. He was then asked about an incident in 1984 which appeared from the Crosshouse Hospital Casualty Department records and seemed to relate to his back. Also, he was referred to No.35/14 of process, his general practitioner's notes, where, at page 20, there was an entry in relation to the North Ayrshire Hospital Accident and Emergency Unit dated 12 September 1984 which appeared to relate to him and was a letter from a doctor to his general practitioner. It recorded that he "tripped and fell - injury to back". According to the pursuer, that entry rang no bells at all, although it was possible. It seemed that he had been prescribed painkillers and bed rest, and that no bony injury had been described. He said in relation to that incident that obviously it did happen, but he had no recollection of it. He was then referred to the general practitioner's notes, No.35/1 of process. At page 5 thereof there was an entry relating to 21 October 1992 which indicated that he had strained his back at work. He did not recollect that incident, but accepted that it happened and that he probably must have had time off. He was then referred to No.31/20-24 of process, which were his pay slips while he was working at Scotts, which indicated that he had at least two weeks off on sick pay over a period towards the end of October 1992. He accepted that he must have had a couple of weeks off at that time, but asserted that that was the only time he got sick pay between September 1992 and July 1993.
7. The pursuer then dealt with his employment history. Before 1992 he had been working as a scaffolder in Nigg for about three to four weeks. The money was less there, about £100 a week. Before that he had been working at Hunterston on the same structure that he was working on on the day of his accident. Scotts took him and his fellow scaffolders over and he was there for about two and a half years, mostly as a foreman scaffolder. There was slightly less money at Hunterston. He had no back pain during that period. Before that he had worked at Clydebank and Greenock. From 1979 to 1993 he had been constantly employed as a scaffolder.
8. In September 1992 he was taken on as a chargehand scaffolder by Scotts. His job was to put the men to work and to give a hand to the various squads. From time to time he covered for the foreman. That job was not as physically demanding as a scaffolder. He only helped out if someone was not able to be there. He would do three or four days a week physical work for just part of each day. By July 1993 there was only one squad left which meant less physical work for him. He could not have done that job or the job of an ordinary scaffolder from July 1993 onwards. He had been expecting the job to finish in July 1993. If he had not had the accident he would have got another job as a scaffolder. Such a job could have been found easily. He did not expect any substantial lay off between jobs. There were plenty of jobs around then. He always had travelled to go to work wherever that might be available, whether in Wales or at Nigg or even at Stornoway. He might have been expecting perhaps £100 a week less than he was earning at Coulport. If he had gone offshore he could have earned more than he was earning at Coulport.
9. He then spoke about his hobbies and social life. Prior to his accident he played indoor bowls and he ran half-marathons. He also was a football referee at amateur games. He had done neither of these things since the accident because he could not, owing to the pain in his back. He also was keen on playing snooker and darts, which he could not do now because of his back. Prior to 1993 he did household decorating, gardening and do-it-yourself work. He could not do that any more because of his back and his wife had to do these tasks. His wife also frequently had to help him to get into the bath or shower. She also had to help him to put on his socks and shoes and trousers. His sex life did not exist any more. As far as his moods were concerned he said that he was quite "crabbit" at times. On these occasions he would go to bed to keep out of the way, as it was unfair to the other members of the family. He had grandchildren, but was unable to play with them and he missed that a lot. He is very fond of his grandchildren.
10. The pursuer was then extensively cross-examined by Mr Hanretty on behalf of the first defenders. He was asked first of all about the issue of the accident book. The pursuer claimed that the DSS had arranged for an entry to be made in the book regarding his accident. He was told that by a man in the unemployment centre about October 1993. The pursuer was immediately referred to a letter from the first defenders, dated 28 May 1996, which advised that the accident book had been checked and there was no entry relating to the pursuer after 21 July 1993, up to and including 19 May 1994. Furthermore, the letter asserted that the first defenders had had no correspondence with the DSS in respect of the pursuer's accident and indeed alleged that they would have no right to request the first defenders to put a late entry into the accident book. The pursuer had never seen this document. He knew that parts of the accident book were produced in process, but accepted that he had never seen any entry in that book relating to the accident about which he had given evidence. He was then referred to No.40/1 of process, an excerpt from the accident book, relating to an incident in May 1993 shortly before the alleged accident in July 1993. He claimed that he had no recollection of these events. He accepted that he must have stopped work and gone to see the nurse and received a massage. He claimed he did not even know where the nurse was to be found. He could not remember going to the doctor about this incident. He was then referred to No.35/14 of process, part of the general practitioner's records dated 22 May 1993, which indicated that he had in fact seen his doctor relating to the same type of injury, a pain to his shoulder and neck, which had been recorded in the accident book. He claimed that did not assist his recollection.
11. The pursuer was then asked about the locus of his alleged accident, namely the load bank room. He accepted that the dimensions of that room were about 20 to 30 feet by about 10 feet, plus an off-shoot which contained a generator. He also accepted that the grating which surrounded the central part of the room was L-shaped, that it went up the long side and across the short side making an L-turn. The stairs were at the turn in the L after the door. The generator was partly under the stairs and stuck out towards the middle of the room. He had been carrying the scaffolding tubes on his right shoulder and there was a handrail to his left. He was not holding the handrail. The grating slipped and he thought he was going to fall. He threw the tubes off his arms. He let them go and they rolled off his shoulder. His colleague Lindsay was in the room picking up gear to one side and behind the pursuer. The pursuer spun round to try to grab the handrail with his left hand. He spun to his left. He was a couple of feet from the handrail. He did not know what part of the grating gave way. He just felt it going under his feet. He thought he was going down. He was referred to a sketch plan No.36/4 of process which he himself had drawn in about 1995. He was also referred to No.36/3 of process which was a statement given by him to his solicitors where he described the load bank room in the following terms:

"The load bank room is perhaps 20 feet by 20 feet. It had a generator in the middle of it and a walkway round the outside with a control panel and some fuse boxes which were the size of perhaps two filing cabinets. The accident happened on the walkway just before the corner where you start to go upstairs."

The pursuer again asserted that the accident happened when a grating moved under his feet. He did not know if it moved from side to side. He wished to change his evidence in that regard. He accepted that the state of his back before July 1993 was important in this case. He also accepted that it was important to be accurate. He asserted that he had been accurate and true to those who had examined him. He said that his first back problem had occurred around 1975 when he had been lifting his daughter. He said that he had no difficulties until the late 1970s/early 80s as far as he could recall. He had been a scaffolder since 1979 which was heavier work. He was asked if he had had recurring problems with his back in 1977 and said that he could not remember. He was then asked about matters which had occurred after August 1977. In particular, he was referred to an entry in documents dated 26 October 1977 which was a letter from the orthopaedic unit in Kilmarnock Infirmary, from a Dr Simpson to the pursuer's general practitioner, from which it was suggested that he had recurring backache. When asked to explain that, the pursuer said that that information must have come from his general practitioner. He said that he took it that he must have gone to see his general practitioner about that. He then said that he now remembered that particular referral because he had been given a corset to wear. He then accepted that by 1977 he had a history of recurring backache over a number of years. He thought it was to do with discs. He remembered it now. He thought it was all connected back to the incident in 1975 when he had lifted his daughter. In the period between 1977 to 1993 he then asserted that he had no bother with his back, that he had been working solidly and had had no problems. A number of recorded incidents were put to him thereafter during that period including, for example, in October 1992 when he had forgotten that he was off work for two weeks and in May 1993, the incident already referred to, which he said he had forgotten too. He was then referred to No.36/1 of process, which was a report dated 24 October 2000 from a consultant orthopaedic surgeon, Mr Colin Walker, FRCS, who was later to give evidence in the case. He remembered going to see Mr Walker. He was referred to page 1, paragraph 1 of Mr Walker's report in which he said,

"In the 1970s he apparently had a long history of low back pain which was treated by sports physiotherapy and he felt his back pain had largely improved. By the late 1970s and through the 1980s he denied having had any low back pain and refereed regularly at football, ran three half-marathons and worked as a scaffolder since 1979."

He was asked about the phrase "a long history of back pain in the 1970s". It was put to him that that was different from the evidence that he had given in chief, where he referred to only one incident. In relation to those suggestions, he merely said that he could not explain that. It was also put to him that he had told Mr Walker that he had no low back pain in the 1980s. He accepted in the light of his previous questioning that that was not true. He said it was what he thought when he saw Mr Walker in October of that year. In the next paragraph of his report Mr Walker reported that the pursuer had told him that he had no back pain until July 1993. He was asked about that and accepted that it was not true. He admitted that he had back pain between 1975 and 1993. He admitted that he had recurrent pain in the 1970s. When asked why he did not tell Mr Walker that and about the incident in October 1992, he said that was because he did not remember. The first time he had remembered about that was the day before, when he had been giving evidence. He could offer no explanation for that. He admitted having seen Mr Walker's report and that he had a copy in his own possession and had read it all. That had not concerned him regarding the history which he gave in evidence-in-chief. It was pointed out to the pursuer that it had been recorded in Mr Walker's report at the beginning of page 2, that Mr Walker only had the GP notes from February 1993. It was also pointed out to him that the significance of that might well be that Mr Walker was unaware of the state of the pursuer's back before 1993. Asked if he was aware of that fact himself, he said he did not know. The pursuer was then referred to a letter which formed No.35/9 of process from

Mr Sammon, FRCS, Consultant Orthopaedic Surgeon, to solicitors acting for the pursuer dated 4 July 1996. The pursuer was not even aware that this opinion had been sought and certainly had not seen this report before. He seemed to agree with the proposition put to him that his pre-1993 back condition could lead someone to the view that nothing had happened in 1993 to cause his back to be any worse than it was going to be anyway. A number of points in this regard were then put to him, as a result of which all that he could say that he could not explain why his memory regarding his pre-1993 condition was better now than it had been on earlier occasions when he had spoken to other people. In this regard he was then referred to an averment in the Closed Record at page 13A to this effect:

"He had not experienced any back pain since 1983 and had not had any absence from work because of back pain since then."

He accepted that neither of these allegations were true. When asked for an explanation of that state of affairs, he said, "I didn't recall at the time." The pursuer was then referred again to Mr Walker's report No.36/1 of process where at page 4 he had said that the pursuer had some evidence of exaggeration of symptoms. He was asked to comment upon that remark, but declined to do so. He was then taken through the nine conclusions that Mr Walker came to in his report about which he had nothing really to contribute either way.

12. Thereafter the pursuer was taken through a number of documents, which had some bearing on the medical treatment that he had received since 1993. Without going into the details of these documents, it was perfectly plain that over a long period he had been referred to various courses of treatment, many of which he had attended originally and then decided not to follow up. These documents included No.35/10 of process, No.31/2 of process, No.31/1 of process, No.35/13 of process, No.35/14 of process, No.35/13 of process, No.35/11 of process, No.35/14 of process and No.35/8 of process. Many of the pursuer's answers in relation to the questions posed as to what was said in these documents as to his medical history over the relevant periods both before and after his accident were most unsatisfactory and did not reflect well on his credibility. In general terms, it can be said at this point that what was put to him in this extensive cross-examination demonstrated quite clearly that he was certainly not reliable in relation to both what he said about the occurrence of the incident in July 1993 and about his medical condition both before and after that date. As I shall say later on, I did not accept his evidence on either of these points. Thereafter, Mr Clancy for the pursuer re-examined. I did not find that any of the matters raised had any great bearing on my views of the pursuer's evidence. At this point Mr Clancy announced that he had settled matters with those representing the second and third defenders and asked me to pronounce decree of absolvitor in respect of both of these defenders with no expenses to or by either party. He asked me to repel the pursuer's first plea-in-law against the second and third defenders. Mr Clark and Mr Hanretty were content with this proposal.
13. Mr Clancy then continued his re-examination of the pursuer but I did not find that anything contained in the questions and answers thereto were of any assistance in relation to the pursuer's evidence.
14. The next witness was Andrew Paterson, who was a scaffolder, and part of the squad of which the pursuer was the chargehand. He confirmed that by July 1993 there was not much work left for scaffolders at the site, in fact there was only the one squad left, namely the pursuer, himself and Lindsay. He remembered that an incident involving the pursuer occurred about two or three weeks before he finished work in August of that year. He remembered that it happened in the load bank room. As a squad, they were stripping down the scaffolding in that area and removing the material. He was at the top of the stairs loading the material on to vehicles. He remembered Lindsay shouting, "Frank's hurt himself". He ran down the stairs to the load bank room and went in the door. He saw that the pursuer was on the floor and that Lindsay was picking him up. The pursuer appeared to be in agony. He said to himself, "The gratings again". Without being prompted, he said that they had never been tied down properly. There were gratings on various parts of the structure. The pursuer was being lifted off the grating. It is important to note, as I read his evidence from my notes, that at no time did Paterson say that he saw, although the pursuer was being lifted up from the very spot on which he apparently had fallen, any displaced grating. Paterson helped him up and into the van which was at the top of the structure. He and Lindsay took him to their hut and put him on a table. His back was away. Paterson went back down to make the place safe. He put a barrier tape around the area where the pursuer had fallen. Thereafter he went back to the cabin. Again he made no reference to seeing any displaced grating in the area in which the pursuer had fallen. He then took the pursuer home. The pursuer was in considerable pain. He also said that in the meantime he had gone to Scotts' offices and told them, or people there, that the pursuer had an accident. He was quite sure about that because he had to get permission to leave the site before the usual leaving time. He therefore had to say why he needed to go and the reason that he had given was that the pursuer had hurt himself. He said that he was told to get the pursuer home. Again, it seemed noteworthy, that he made no effort to ensure that someone in authority was told that an accident had happened and that some official record should be made of it.
15. In cross-examination he confirmed that he did not see any accident to the pursuer. By the time he got there, the pursuer seemed to be in bad pain and thought he had suffered a serious injury. He was shown No.40/1 of process, the accident book, and said that he did not appreciate that there was such a procedure, nor that there was a medical facility available to assist the pursuer.
16. The next witness was James Lindsay, the third member of the squad headed up by the pursuer. At the material time he had been working in the load bank room, dismantling the scaffolding with the pursuer. They were carrying the scaffolding tubes which had been taken down from the structure up to Lindsay on the deck above. At the material time the pursuer had been in front of him. He said that the pursuer slipped, lost his balance and fell. He said that a grating must have slipped. I pause to note that again was pure supposition on his part as he did not see any grating dislodge itself or move in any way. All that he saw was the pursuer falling and the tubes which the pursuer was carrying fall to the ground. He did see the pursuer try to grip something as he went down. There were switches there and a handrail. He said the pursuer let out a roar. He shouted on Paterson who came down and gave him a hand to carry the pursuer up to the top deck. They took him to the hut and put him on the table. He could not sit. He was in quite a bit of pain. His back was hurt as he went down. He confirmed that Mr Paterson went back to make the locus safe. As I noted before, neither Paterson nor Lindsay nor for that matter anyone else, spoke to seeing any dislodged gratings. He and Paterson then took the pursuer home. He told the pursuer's wife that she should get a doctor. Thereafter, he confirmed the evidence of Paterson to the effect that he also had been fully employed as a scaffolder since being laid off at Coulport and that he had started a job immediately after that time.
17. In cross-examination Mr Lindsay said that the accident happened near the door which led to the stairs up to the upper deck. He said that the pursuer must have slipped or that a grating must have moved. Again, I paused to note that Mr Lindsay did not see what happened but supposed either that the pursuer slipped or that a grating moved. Indeed, in re-examination, he said that he was aware of the fact that gratings had become loose in the past and that he had assumed that that was how the pursuer fell.
18. That concluded the evidence on the merits. At this point I should indicate the nature of the pursuer's pleadings as to the cause of the accident which he alleged happened to him. At page 6 of the Closed Record, between letters D and E, the following averments are made:

"At the material time the pursuer was walking along the walkway and was about to go up the said stairs at the corner of the load bank room when suddenly, and without warning, a grating moved as he stood upon the edge of it and tipped up. The grating had not been secured to the surface of the walkway and it shifted under the pursuer's feet when he stood upon it and caused him to start to lose his balance. The pursuer attempted to retain his balance and stop himself from falling by trying to grab hold of a stantion (sic) which was nearby and which housed a stop button for the said generator. In so doing, the pursuer twisted his body awkwardly and suddenly."

I may say that, even at this point in the evidence, I had considerable doubts as to whether these averments had been established. I was not entirely convinced that the pursuer had actually spoken to the accident having happened in the way described in the Closed Record. Furthermore, I could see no supportive evidence that any grating which comprised part of the walkway had moved at all. As far as the evidence of Paterson and Lindsay was concerned, the fact of any grating having been dislodged and having played a part in what happened to the pursuer seemed to me to be entirely supposition. It was, I thought, important that there was no indication that anyone at all at any time ever saw that a grating upon which the pursuer had actually stood had been displaced in any way. There was no evidence either from the pursuer or from Paterson or Lindsay that the pursuer had told them that he had come by such injury as he received as a result of a grating having moved. It seemed to me strange that if a grating had been the cause and that if Paterson or Lindsay had any suspicion that that might have been responsible for such an injury to the pursuer, they would have tested the gratings to see if any of them were loose and might have been responsible. In particular, Paterson, who took it upon himself to seal off the scene as it were, gave no indication that any of the gratings had been displaced in any way whatsoever. A substantial question therefore arose as to whether it had been proved that the pursuer had hurt his back in the way in which he said and in the way in which his case was stated at page 6 of the Closed Record. I shall return to that matter in due course.

19. The next witness for the pursuer was Mr Colin Walker, FRCS, consultant orthopaedic surgeon, whose report No.36/1 of process has already been referred to. That report was dated 24 October 2000 and was compiled as a result of an interview and examination of the pursuer at the Southern General Hospital in Glasgow on Tuesday 17 October 2000. Mr Walker had seen copies of clinical notes from Crosshouse and Ayrshire Central Hospitals and also copies of general practitioner notes and physiotherapy notes which have also earlier been referred to. On compilation of his report the only records from a general practitioner that he had seen were those dating from 1993. He subsequently had been given a sight of records dating back to the 1970s which he said clearly gave a fuller picture. Prior to speaking to his report he was taken through these earlier general practitioner records and given the opportunity to comment upon them. He accepted that the picture presented by those records suggested a different version of events as regards the pursuer's back to the story the pursuer had given to him. Under the heading of Opinion in his Report No.36/1 of process, he made nine findings. Some of these were factual and many of them were related to what the pursuer had told him. That history included in paragraph 1 a denial of any back problems between the late 1970s and 1993. He had not seen any of the medical records prior to 1993 when he compiled this Opinion. As a result of what he had been told however, he was able to express the following views:

"4. Mr Morrison's back pain is clearly mechanical in nature. It would appear to be due to segmental instability secondary to degenerative disc disease in the lower three lumbar disc spaces. He has degenerative changes throughout his lumbar spine. This is not amenable to any surgical treatment.

5. He shows five out of the seven signs of inappropriate illness behaviour as described by (Professor Waddell). I cannot find any evidence of conscious malingering however his inappropriate illness behaviour would appear to be an abnormal reaction to physical pain caused by his degenerative disc disease.

6. X-rays approximately two months following the accident showed degenerative changes in his lumbar spine which show radiologically he had evidence of long-standing lumbar spine problems. These radiological changes do not necessarily equate to the clinical picture.

7. A review of his GP notes prior to 1993 would be helpful to ascertain whether he had any significant back pain prior to the incident in question. In view of the degenerative changes in his lumbar spine in 1993, had he not had the further injury to his back I expect he would have had some episodes of low back pain which may have precluded him working as a scaffolder to normal retirement age.

9. If, as he states, he had no back pain in a decade prior to the injury in question I believe Mr Morrison may have been able to work for up to fifteen years following the time of the incident in question.

10. It is clear that the accident in question in 1993 has been responsible for an exacerbation of his back pain and subsequent inappropriate illness behaviour."

Mr Walker concluded by saying the following:

"Mr Morrison has not returned to work for seven years due to episodes of severe back pain. I believe no surgical or conservative treatments are likely to improve his symptoms to any extent. He will almost certainly never return to active employment in future, although if he does it would not involve any physical exertion."

It was clear from Mr Walker's opinion that he thought that a fuller history of any problems with his back which the pursuer had experienced prior to 1993 would have been relevant. When he came to give evidence he had seen the records of the general practitioner and the various hospital records which related to the situation prior to 1993. He was still of the view, however, that the incident in 1993 was capable of exacerbating his pre-existing condition and starting the pain which continued thereafter. He thought that was common. He believed that the pursuer was in that category of about 60% of people whose condition could be exacerbated by such an accident of incident as occurred in 1993. If he did not have a degenerative condition it was less likely that the symptoms would have endured for so long. In relation to what he said in paragraph 9 of his opinion, he adhered to the view that if there had been no history of back pain in the ten years before 1993 the pursuer could have worked for about fifteen years. However, he was prepared to alter his opinion to some extent having seen that history. He suggested in the light thereof that a more realistic period would have been somewhere between five and ten years. In cross-examination Mr Walker really had to admit that there were a number of matters of relevance which he had not been told about by the pursuer. In particular, he had not been told about any back problems prior to 1993. In fact, the pursuer had denied to Mr Walker that he had experienced any back pain between the late 1970s and the early 1990s. Mr Walker now knew that claim to be false. Furthermore, the version of events in July 1993 to which the pursuer spoke, namely that he had slipped on a grating, felt his foot going, put his hand out and twisted to steady himself, was not a version of events that had been given to Mr Walker. Mr Walker accepted that that version of events did not sound like very severe trauma. He thought it sounded more like an every day type of occurrence which would be at the very bottom end of the scale of trauma. Mr Walker was also referred to No.35/14 of process, the general practitioner's records, in particular to an entry for July 1993 which he claimed to have seen before. He accepted that this was the closest contemporary record of the accident. He said that he had regard to this when he drafted his report. He could not remember if he had seen it when he was examining the pursuer. As far as the account of stepping off the pavement was concerned, that certainly was not what had been told to him by the pursuer. A discrepancy between what was there recorded and what had been told to him by the pursuer was not mentioned in his report but that was probably an oversight. It certainly did not support the history which had been given to him. Furthermore, he accepted that the pursuer did not tell him that he had fallen to the ground in the course of the incident in 1993. He had merely told him that he had reached out and tried to steady himself. A number of the other medical records were put to Mr Walker and he accepted that many of the matters which the pursuer had apparently told other doctors about had never been expressed to him by the pursuer. He would have expected a frank patient to have told him about these matters but the pursuer had not done so. Furthermore, where No.35/9 of process, Mr Sammon's report, was placed before Mr Walker. He accepted that he had seen it before. He expressed the view that he was not surprised at the opinions expressed in that report. It also seemed to him that Mr Sammon was aware of a number of facts of significance of which he had himself not been aware prior to seeing that report. Nevertheless, it did not dissuade him from his view that an incident had occurred in July 1993 which, however small in terms of trauma, had in fact exacerbated the pursuer's condition to the extent that he was not able to work further. He was of the view still that even a minor trauma might have had such a disastrous result. The pursuer's back was susceptible to even such minor trauma. In his experience, people with mechanical back pain do give up work as it becomes intolerable. In re-examination he reaffirmed that any trauma the pursuer had experienced in the incident in 1993 was at the lower end of the scale. He accepted what the pursuer had told him, namely that he had slipped on a grating. However, he was of the view that it was the throwing of his arm out to steady himself that was of significance as in that action he had twisted and caused pain to the lower back. Furthermore, even if he had not experienced the accident in 1993, any other minor trauma might have had a catastrophic effect upon him. On the other hand, such minor trauma might not inevitably have had such disastrous consequences. He could have endured a number of such incidents without any catastrophic effect.

20. At this point the only witness called to give evidence for the defenders, Mr D J Sammon, FRCS, consultant orthopaedic surgeon, was interposed. He spoke to No.35/9 of process, a report prepared by him having seen the pursuer on 11 March 1996. The report was dated 4 July 1996. This was the report above referred to which had in fact been instructed by and returned to solicitors acting for the pursuer. It was a short report, which appeared to be based upon very little in the way of documentary evidence concerning the pursuer's previous history, and was dependant principally on the one interview that he had with the pursuer. In particular, he records in relation to his examination simply the following:

"Shaky throughout. Holds his back stiff. Forward flexion 2cms only. No gross loss of L5 or S1 power. Axial compression negative. Widespread tenderness in the lumbar spine. X-ray shows a little narrowing of the L4/5 and L5/S1 spaces but really nothing else."

In relation to that examination Mr Sammon went on to express the following opinion:

"This is a facet joint story magnified by emotional factors. There is no question of any sort of surgical treatment for this man. I have tried to get it over to him that doctors cannot fix his back and that his best chance of rehabilitation is positive thinking and exercise. He should go back to physio, then swimming, then if he can manage to some of his previous athletic pursuits. Discharged."

Mr Sammon went on to say:

"With regard to the suggestion that any or all of this man's present back complaints are referable to a single injury, one would of course need to hear his side of the story about the alleged injury. However, there is nothing in the clinical picture to provide supportive evidence that his back symptoms are related in any way to a single episode of trauma.

Clearly, he has a chronic mechanical problem in his back. The available evidence suggests that he has some degeneration in the L4/5 disc space and associated with that some roughness and/or loss of alignment in the small facet joints which lie behind the disc on each side.

The most that can be blamed on a single episode of trauma in this situation is an exacerbation of symptoms which must last I suppose two or three months. I don't see that he is likely to succeed with any claim alleging long-term disability unless he can come up with a very clear account that his back was submitted to some quite abnormal or illegal load."

Mr Sammon accepted on all the available evidence that the pursuer did have a degenerative condition. When it was put to him that what had happened in 1993 was an incident which triggered a chronic condition, he said that he felt that that was not the case on such evidence as was available to him. He could not confirm that the episode in 1993 was the whole trigger for the pursuer's present condition. He thought that it might have taken him down a step to a small extent.

21. The defenders also relied upon the evidence of Dr Maureen MacGuire who was a partner in a general medical practice at South Beach surgery in Ardrossan. Her evidence had been taken on Commission at an earlier stage. She confirmed that the pursuer had in the past been a patient of that practice and that she was familiar with the medical records of the practice relating to the pursuer. She also confirmed that No.35/8 of process was a letter dated 6 September 1995 which she had written to solicitors acting for the pursuer, describing her views upon the pursuer's condition. It would appear from that letter that she was indeed the doctor who was first consulted by the pursuer after the incident in July 1993. She records that he consulted her on Saturday 24 July 1993. She says that a few days previously he had hurt his back when he stepped off a pavement at the area where he was working. He had a recurrent back pain in the past, but at that point the pain became constant. She also reported that the pursuer did have problems with his back prior to this episode. However, since this episode the back pain had been constant. The incident may have led to exacerbation of his symptoms, but there must have been underlying degenerative changes. That clearly was her opinion when she wrote this report in 1995. Furthermore, she records in that report that her examination on Saturday 24 July 1993 disclosed no bony tenderness and also that there was marked muscle spasm and reduction on movement but no neurological sequeli. She further goes on to state that an x-ray of his back in early August showed that there were early degenerative changes in the lumbar spine and slight scoliosis of the lumbar spine. Apparently there were no other abnormalities. She records that he was referred for physiotherapy to help deal with the pain and the mobility of his back. In her examination on commission she was then taken through the records of the practice and confirmed the nature and effect of the various entries. As far as her note to the effect that the pursuer reported his injury as having been caused as him stepping off a pavement was concerned, it was suggested to her that he might have said that it was like stepping off a pavement. In response to that she said that if he had said that, that is what she would have noted, but that is not what he said. To be fair, in cross-examination, she admitted that it was possible that she might have misunderstood what he said.
22. The pursuer's proof was then resumed with the evidence of Keith Carter, who was an employment consultant and who had prepared a report regarding the pursuer, No.36/2 of process, dated 27 October 2000. In that lengthy report it was clear that Mr Carter had a considerable amount of information about the pursuer's situation. He also appeared to display a considerable knowledge of the employment market even as it might affect someone such as the pursuer. Taken shortly, his conclusion was that the pursuer's prospects of returning to any employment after the incident in 1993 were poor. In his opinion, even if the pursuer were able to return to some form of employment, it was his view that he would experience a considerable and continuing loss of earnings. He gave some facts and figures which would represent the possibilities involved in a number of scenarios affecting the pursuer for the future.
23. At that stage the cases both for the pursuer and the defenders were closed. A joint minute was tendered relating to certain financial matters. Mr Clancy, without objection, moved to amend the sum sued for to £250,000.
24. Mr Clancy for the pursuer invited me to sustain the first plea-in-law for the pursuer and to pronounce decree in terms of the first and second conclusions of the summons. He opened his address to me by dealing with the merits. He firstly took me through a history of what he considered to be the undisputed facts as to the way in which the pursuer had been working at the time of the relevant incident. I need not rehearse these again as they were not in dispute. He then dealt with the circumstances in which the alleged accident to the pursuer had occurred. First of all, he suggested that the evidence of the pursuer was to the following effect. He suggested that the pursuer and Lindsay had been removing scaffolding equipment from the load bank room. That was confirmed also by Paterson. Paterson had been on the main deck loading the equipment on to a truck. The pursuer had been carrying three poles on his right shoulder. They were about 6 to 8 feet long. He was walking along one of the longer sides of the walkway towards the stairs. He felt the gratings move under his feet. He felt that they "wobbled". He threw the tubes down. He thought he was going to fall. He spun to his left to grab hold of a stantion. He felt pain in his back when he twisted. He fell to the ground and landed on his hip. It was the twist which inflicted the injury, that is to say the pain. He was not sure how the grating moved. He thought it probably moved from side to side. Mr Clancy accepted from the outset that a crucial question was related to credibility and reliability of the pursuer, particularly in relation to his history of back pain. He acknowledged that some other things which the pursuer had said were "inaccurate". He further accepted that the court would have to examine very carefully the pursuer's evidence on the critical issues, for example the causes of the accident. He submitted that I should look to see whether there was evidence which supported the pursuer's account. He further submitted that there was substantial support from the unchallenged evidence of his work mates. He referred to the fact that Paterson had been on the deck of the structure when he heard the pursuer shout. Lindsay shouted him down and he went to the load bank room. The pursuer was being picked up by Lindsay. He referred to the location as being on top of the gratings in the load bank room and also that the pursuer was on the ground. He was not challenged on that. Therefore Mr Clancy suggested that it was clear that something had happened in the load bank room to cause the pursuer pain. As to Lindsay's evidence, he had been behind the pursuer. The pursuer was carrying scaffolding. A grating had moved. The pursuer slipped and lost his balance. As to those last two sentences I was not entirely sure that was actually what Lindsay had said. He did accept that it was challenged in cross-examination that the grating had actually moved. It had been asserted that this was an assumption based on knowledge of a history of loose gratings. It had been suggested that Lindsay had put two and two together on seeing the pursuer go down and had thought that that was probably due to loose gratings. However, Mr Clancy submitted that Lindsay's evidence was powerful support of the pursuer's account in the detail of how the incident occurred, especially relating to the fact that the grating had moved. Mr Clancy accepted that Lindsay had said that the accident occurred near the door leading to the stairs, which was of course quite different from the pursuer's account of the exact locus. Mr Clancy suggested that this was simply a matter of detail and that Lindsay's recollection had possibly been affected by the passage of time. He suggested that Lindsay's evidence was effectively corroboration of the pursuer's evidence and that there had been no direct challenge to the evidence of Lindsay. Having regard to these matters Mr Clancy submitted that the pursuer's evidence was credible in relation to what had happened in the load bank room. Mr Clancy then referred to the pursuer's first account of how he had come about his back injury to anyone at all. That is to say the entry made by his general practitioner a few days after the accident to the effect that he had sustained the injury to his back whilst stepping off a pavement. In that regard Mr Clancy asked me to consider the pursuer's explanation that he had been trying to described to his doctor the way in which the incident had felt to him, that is to say "as if" he had stepped off a pavement. I pause to observe this point that that explanation to me seemed highly unlikely. In the first place the pursuer did not mention where it was that this injury to his back had occurred, namely in the load bank room in the course of his employment. Nor did he mention that a loose grating had in some way been involved. Nor did he seek to compare the movement of the grating to stepping off a pavement. Mr Clancy suggested that if I accepted the entry which the general practitioner had made I would have to reject the evidence of the pursuer and Lindsay and Paterson. He submitted that I should accept the pursuer's account and that there had been a loose grating and that it had caused him great pain that he had then been taken to the cabin about which he spoke and thence to his home.
25. Mr Clancy then referred to what he considered to be the legal affect of my acceptance of the evidence as to the circumstances of the accident. He suggested that that should inevitably lead to the conclusion that there had been a breach not only of the common law duties of his employer, but also a breach of the statutory regulations which were also pled. He suggested that it was not in dispute that if the court accepted the pursuer's account of the accident the employers were in breach, at least of the regulation referred to at Condescendence 4. That regulation placed a duty on the employers of the pursuer. The regulations applied to the situation. It was a work of engineering construction. He went on to say that there was one other matter on the merits which he suggested supported the pursuer's credibility, that is to say that according to the pursuer there had been a significant number of previous loose grating incidents. For example, electricians had moved gratings for access thereunder. Other workers had moved them too. They had been carelessly re-secured. That was supported by Paterson who said, "He knew it would happen again." It was also supported by Lindsay who suggested that gratings had become loose previously. He referred to No.31/14 of process, the accident book in relation to what had happened to James Weir in May 1993 which he suggested was a similar occurrence. He also referred to No.31/8 of process, a letter saying that floor clips had been missing dated March 1993.
26. Mr Clancy then turned to deal with the question of damages. This he dealt with in several different chapters. The first he described as the immediate aftermath of the incident in July 1993. He said that the evidence suggested strongly that the pursuer had been taken to the cabin, laid on a table and thereafter taken home. That was confirmed by Paterson and Lindsay. Both of these witnesses had said that the pursuer was in agony with his back. Mr Clancy accepted that he did not go to sick-bay or to hospital. He also accepted that he did not go to see his general practitioner until two or three days later, but suggested that that was because he was bed-ridden until that time. He submitted that it was acceptable that the pursuer had suffered three months of constant pain. He had had intermittent bouts of intensive disabling pain. These occurred twice a day to one a fortnight. On occasions he had lain on the floor for hours until painkillers took effect. Mr Clancy then dealt with the treatment which had originally been prescribed for the pursuer. He had had three courses of physiotherapy. The first was at Ayrshire Central, where he had six meetings lasting until February 1995. He had a second course which lasted until June 1996. A third course lasted until August 1997. He asked me to accept the pursuer's evidence that although by July 1993 he had in fact given up refereeing football matches, he still ran some half marathons and continued running recreationally. He was still bowling and playing snooker and darts. These recreations he had to give up. He furthermore could do no gardening or do-it-yourself work at home. He needed help getting into the bath or the shower. He needed help in putting on his socks and shoes and sometimes his trousers. He had no sex life anymore. He occasionally got moody and "crabbit". He could not play with his grandchildren which affected him deeply.
27. The fourth question which Mr Clancy asked me to consider was what he called a "medical legal question". That question related to what was in fact the state of the pursuer's back in terms of his symptoms. According to the pursuer he had had constant pain and intermittent crippling attacks. These persisted. It had not been suggested that he was inventing these symptoms. That account was supported by Mr Walker. Mr Clancy referred me to Mr Walker's report of October 2000 and asked me to bear in mind that he had by the time he gave evidence seen all the medical records. He submitted that it was an integral part of his report that he accepted that the pursuer's symptoms was genuine, albeit that there might have been a certain exaggeration attributable to illness behaviour. He suggested that that exaggeration did not mean that the pursuer was inventing the symptoms. He submitted that that was part and parcel of the condition, namely that he tended to exaggerate symptoms. He submitted that the pursuer's account of his current problems were largely consistent with what he told Mr Walker in October of the previous year. Mr Walker's report was No.36/1 of process, to which Mr Clancy then referred me in some detail. Mr Clancy accepted that there were some matters that the pursuer had spoken to in evidence that he clearly had not told Mr Walker about. He suggested that there were two significant conclusion, firstly, that there was the presence of inappropriate responses and secondly, that there were general signs of reduced movement of the lumbar spine. He suggested that Mr Walker's opinion at paragraph 4 of his report that there had been segmental instability and certain other conclusions, certainly explained the sudden onset of crippling pain to which the pursuer spoke.
28. Next, Mr Clancy referred to what he also called a medical legal issue, that is to say whether the chronic long-term back pain suffered by the pursuer had been caused or materially contributed to by the accident in July 1993. He suggested that this was not a credibility issue, but a medical issue and therefore a question for the doctors. In this regard he relied on Mr Walker's views again. Mr Walker had explained that the degenerative condition was present at the time of the accident and was visible on x-rays taken in August of that year. That did not mean that the pursuer was symptomatic before the accident in July 1993. He referred to the fact that Mr Walker had pointed out that it was very common that a person with back pain did have exacerbating incidents that started pain off and referred to Professor Waddell's view that that occurred in about 60% of such cases. Mr Clancy suggested that Mr Walker's view that the pursuer was in that category ought to be accepted. He suggested that Mr Walker's evidence was carefully considered and well reasoned. It was based upon a full knowledge of the history of the pursuer's back problems and that I should accept it. He submitted therefore that the pursuer had proved enduring symptoms caused or materially contributed to by the accident in July 1993. He further suggested that Mr Walker was supported to an extent by, for example, the evidence of Paterson and Lindsay. They had said that the pursuer had been working normally, that there had been an accident and that he immediately had crippling pain. Also, he suggested that Mr Walker's view was submitted by the pursuer's employment record, which suggested that he had been constantly in work from September 1992 to July 1993, except for a period in November 1992 where he had suffered some back pain. Mr Clancy invited me to take the view that I should reject any suggestion that Mr Walker's evidence was dependent entirely on him accepting the pursuer's word for his condition. He gave certain reasons why that should be. Mr Clancy then went on to criticise the evidence of Mr Sammon and suggested that his report of July 1996 dealt almost entirely with generalities. He had only one examination of the pursuer in March 1996. He had accepted that he would have preferred to have had more information before expressing an opinion on causation. Mr Clancy submitted that Sammon's evidence did not really contradict Mr Walker to the extent that the court should reject Mr Walker's carefully researched and considered evidence. Insofar as there was any dispute between the two doctors, Mr Clancy suggested that I should prefer Mr Walker.
29. The next question that Mr Clancy invited me to consider was whether even if the accident in July 1993 had not occurred, the pursuer would in any event have developed the symptoms that he now experienced. He said that question had an important bearing on quantum of damage. That question had been addressed by Mr Walker, who had in fact revised his written opinion on this matter after seeing the records of the general practitioner. His original opinion had been that the pursuer could have continued in work such as he had been doing for about fifteen years. Having seen the records, he revised that opinion to the effect that his best estimate was now somewhere between five and ten years. If he had a job that did not involve any lifting then, perhaps, fifteen years might still have been appropriate. As to Mr Sammon's evidence on this point, Mr Clancy suggested that he did not really address the issue and certainly did not contradict Mr Walker. In his evidence-in-chief Mr Sammon had not supported the view that the pursuer's back was ready to go at any time, but thought that he may have had bad spells of trouble. Mr Clancy suggested that Sammon had come to the issue rather cold and with little information and therefore that Mr Walker's evidence was preferable in this regard.
30. Mr Clancy then went on to deal with what he had already acknowledged was a bit of a problem for the pursuer, namely his evidence regarding his pre-accident back trouble. He suggested that according to the pursuer he first had a problem in 1975 when he had been lifting his daughter. On that occasion he had gone to his general practitioner and had two weeks off work. His evidence was that in 1979 he started as a scaffolder. He was not used to heavy work. He had two to three visits to his general practitioner regarding backache. His evidence further was that from 1979 to 1993 he had worked continuously and had no serious back problems. He had no time off regarding back trouble. He could not remember the incident in 1994 when he went to Crosshouse Hospital with back pain. He could not remember the two weeks he had off with backache in October/November 1992. It was clear from his wage records and the general practitioner's records that he was off during that period and that he did see his general practitioner. Mr Clancy acknowledged that there were material inaccuracies in the pursuer's evidence-in-chief. He asked me to compare his evidence with the documents. The general practitioner's records did show that there was an attendance in July 1995 regarding his back. Furthermore, in October 1997 he had suffered back pain which led him to go to hospital. He had three attendances with his general practitioner regarding back pain in September 1980. Mr Clancy suggested that these could be three visits after he had started as a scaffolder. In 1982 he had time off with back pain and again in 1992. Also he had attended at the hospital in 1984. Mr Clancy asked me to look at the big picture and suggested that there was substance in the pursuer's basic position that as a scaffolder he had worked pretty much constantly. He did accept however that the omissions regarding 1982 and 1992 were material. He submitted that these omissions were made on the basis that the pursuer had made a genuine mistake about when he started as a scaffolder. He had said that was in 1979 and had told Mr Walker that. However, the general practitioner's records indicated that that must have been in 1982. Mr Clancy submitted the pursuer had simply just got that date wrong. The evidence of the general practitioner confirmed that between 1982 and 1992 there were no recorded attendances regarding backache. Mr Clancy submitted that that supported the pursuer. Also, he said, that the entries put to the pursuer from the general practitioner's records regarding backache on some occasions were not truly to be attributed to that condition. Furthermore, the pursuer had never denied that he had a pre-accident back problem. He told Mr Walker that he had a long history of low back pain. If he had been deliberately lying it was surprising that he acknowledged that much of a history. In the round it could be taken that he was relatively trouble-free through his scaffolding career from say 1983 to 1993. It was understandable that his perception was of being trouble free before 1993, since by comparison the problems which he had experienced since 1993 were much more significant. Mr Clancy suggested I treat these inaccuracies as amounting to unreliability and not that I should hold that the pursuer was being deliberately untruthful. At the worst he was gilding the lily on this question.
31. Mr Clancy next dealt with the question of quantum of damages in respect of which he said that there were two heads of claim, namely solatium and wage loss. As far as solatium was concerned, he submitted that an appropriate figure for damages exclusive of interest would be £12,000 in relation to which three-quarters should be treated as being attributable to the past. Accordingly he said that the sum of £9,000 should attract interest in the period from the date of the accident. He suggested that an appropriate figure should be 4% per annum for that period. In this connection he referred to the decision of Lord Osborne in McFall v West Dunbartonshire Council 1999 S.L.T. 775. He suggested that the present case was not dissimilar to that and indeed was broadly comparable. He suggested that the difference between the two cases really related to an absence in the present case of any deliberate exaggeration of symptoms. He therefore proposed that the figure of £10,000 awarded in that case should be slightly higher in the present case. As far as wage loss is concerned, Mr Clancy suggested that the question was whether but for the accident the pursuer could have found alternative employment. It was not disputed that the work at Coulport was finished. In this context Mr Clancy invited me to take into account a number of factors. In the first place, that the pursuer had constant employment as a scaffolder for eleven years before the accident. The pursuer had spoken to his employment history, indicating that he had worked all over the country, although he had a preference for working at home as far as the future was concerned. Secondly, he asked me to accept that the pursuer could have got a job right away. That position was confirmed firstly by Paterson and secondly by Lindsay, who had been fully employed and had started a job indeed only a few days after leaving Coulport. Furthermore, Mr Carter had supported the pursuer's evidence that there were plenty of jobs around at that time and that such opportunities had continued as far as scaffolders were concerned from 1993 onwards. He had also indicated that the pursuer, having had a position as a chargehand, was better placed to get work most. Mr Clancy suggested that looking at the matter broadly it would be equitable to accept that the pursuer would have worked for about eight years from the accident. As to the wages that he would have earned during such a period Mr Clancy referred first off all to his pre-accident wage which was not in dispute at £347 per week net. Mr Carter had been told by the pursuer that he was earning £400 a week, but Mr Clancy suggested that that was not incredible as a number of the wage slips relative to that period did suggest that on occasions he earned around that figure. The wage slips indicated that in one week he might earn rather little and then have two good weeks. The pursuer had acknowledged that the money was good a Coulport and that elsewhere he might expect to earn about £100 a week less. He referred me to Mr Carter's evidence, particularly in the documents Nos.31/37 of process 36/2 of process where he related the pursuer's actual earnings prior to the accident to what might be expected in the relative period thereafter. Reference was made to what was called the "NEW EARNINGS SURVEY". Mr Clancy then referred to certain calculations that he had made on a number of bases. First of all he referred to what he called his third approach which he suggested was the most appropriate. That was based upon a mid point figure between the average and upper quartile earnings for scaffolders according to the new earnings survey less 25% in respect of tax and national insurance. In terms of that calculation over the relevant nine year period he brought out a total of loss at £142,173 plus interest on the figure that he suggested of 4% over nine years of £51,182 making a grand total of £193,355. An alternative approach which he called his first alternative would be to take as a starting point the pursuer earning £250 per week net, and that is to say £13,000 per annum net, from July 1993. Applying to that the percentage increases as brought out by the new earnings survey No.36/2 of process. The total loss over the relevant period would amount to the figure of £121,663. Adding interest at the same rate of 4% per annum amounted to £43,798, the grant total on that basis would be £165,461. The starting figure of £250 per week net in July 1993 came about by taking the agreed thirteen week pre-accident average and taking off the £100 spoken to by the pursuer in respect of work elsewhere than Coulport. Mr Clancy's final alternative approach was an amalgamation of both the previous two. In this approach his starting point was the gross average earnings for scaffolders according to the new earnings survey. Applied percentage increases that I have just referred to, that would bring out a total gross figure of £167,297 less 25% for tax and national insurance making a £125,472 plus interest at the above rate of £45,170 making a total of £170,642.
32. For the first defenders Mr Hanretty invited me to sustain his second and third pleas-in-law and to repel the first plea-in-law for the pursuer. He proposed to divide his submissions into four chapters. The first chapter related to the pleadings. In this regard he asked me to compare the two documents that had been lodged late without objection, namely Nos.36/3 and 36/4 of process, the additional statement of the pursuer and a sketch plan which the pursuer had drawn, with what actually had been said in the Closed Record. Such a comparison he suggested would disclose a number of discrepancies which, taken together, were certainly material. For example, I could take the pursuer's description of the layout of the load bank room where he claimed to have had his accident. Mr Hanretty suggested that it had become apparent in cross-examination that the pursuer's evidence did not square with his averments. His evidence was to the effect that the load bank room measured about 20 feet by 10 feet with a walkway along two sides of it. According to the pleadings in Article 2 page 6 letters A - B, the load bank room was square in shape and the generator was in the middle with a walkway all the way round it. According to No.36/4 of process, which the pursuer himself had drawn about a year after the accident. In the Record at page 6D-E it was averred that the accident had occurred at the corner near the stairs and that the grating had "tipped up" as the pursuer stood on its edge. To this end, No.36/3 of process the additional statement of the pursuer had been lodged for purposes of clarification. In that statement he suggested that he put his foot on a loose grating as he was just going up the stairs and that it tilted. It was significant that going up the stairs would have put the pursuer a considerable distance away from the stop button to which he referred in his evidence, which he said was just before the corner where you start to go up the stairs, namely the bottom right-hand corner. Mr Hanretty therefore suggested that there was a significant difference as to the exact locus of where the pursuer claimed to have been injured between these documents, the evidence of the witnesses and the pursuer's own evidence. Also, Mr Hanretty referred me to the averments at page 13 of the Record, to the effect that the pursuer had suffered no back pain since 1983 and had not had any absence from work because of back pain since that date. Mr Hanretty pointed out that that averment was not made in response to any averments on behalf of the first defenders and was to be found in the original summons. That clearly indicated that the pursuer's pre-accident condition had been thought of in advance of the raising of proceedings. Indeed the pursuer had accepted in his evidence that he had a copy of the Record and was aware of the averments in it. The significance of that, said Mr Hanretty, was that it was clear that from the outset the pursuer's pleadings were inconsistent with the version chosen to be given by him in his evidence in court, both in relation to the merits and in relation to quantum of damages. Mr Hanretty did not go so far as to say that the pursuer had not proved his case on Record but he pointed out that his original pleadings had clearly been departed from. He suggested that this militated against any reliable cohesive picture of the accident upon which the pursuer based his claim.
33. Mr Hanretty's next chapter of submissions related to what he described as evidence not before the court. He pointed out that the pursuer had submitted a list of witnesses which included, for example, someone called Jackie Edwards who had not been called. This was the person to whom complaints had allegedly been made in the past. Furthermore, on that list was the pursuer's wife who also had not been called, even although she was clearly best placed to described the impact on the pursuer's life of this particular accident. Mr Hanretty suggested that I could draw an adverse inference from the failure to make available such evidence. Furthermore, no one had either been called or placed on the list of witnesses who was present in the site office when the accident was allegedly reported to them by Paterson.
34. Mr Hanretty then went on to deal with the merits of the pursuer's claim. He suggested that I should hold that the pursuer was both incredible and unreliable in every material respect regarding this alleged accident. The pursuer had accepted in cross-examination more than once that he wanted to change his evidence and was content to do so. For example, Mr Hanretty referred to the pursuer's eventual position that the grating had moved from side to side, that is to say a lateral movement. Mr Hanretty suggested that that was very different from "tipping up". The comparison was one of a lateral force against a vertical force. While an insecure grating might clearly tip, that was not the pursuer's case as it presently stood. Mr Hanretty suggested that it was absolutely impossible to see how a lateral movement of the grating had occurred. Therefore he suggested that the pursuer's description of the accident could not be true. As far as supporting evidence was concerned, Mr Hanretty asked me also to hold that both Paterson and Lindsay were neither credible nor reliable. Paterson spoke to hearing a shout from down below, but neither the pursuer nor Lindsay spoke to any such shout. Lindsay put the exact locus of where the pursuer had fallen as being near the stairs. The pursuer's evidence was that the twisting which caused him pain occurred with a view to him attempting to grab on to a handrail or stop button. There was neither a handrail nor a stop button anywhere near the foot of the stairs where both Paterson and Lindsay say that the pursuer had fallen. Mr Hanretty suggested that a good way to test the veracity of this evidence as to the occurrence of the accident was to look at any contemporaneous material which might support that version of events. For example, it might have been in the normal case appropriate to look at an accident report or entry in an accident book, which was of course a statutory requirement. It would be difficult to say that the pursuer was unaware of the existence of an accident book. In production No.40, which was lodged in process but about which the pursuer had no recollection, there was an entry for 18 May 1993 relating to the pursuer where an accident had been reported by him to the safety officer and he had been referred to a nurse. That entry indicated at the very least that the pursuer was well aware of the existence and importance of accident books. Furthermore, it was clear that the pursuer was well aware that there had been no entry made in respect of this alleged accident in July 1993. Mr Hanretty invited me to regard as a fairy tale the pursuer's story about the DSS in Saltcoats or Kilmarnock or wherever being involved in engineering a retrospective entry in the accident book. No one had been called to speak to such a fanciful tale. It was worthy of note that in the pleadings the accident book had been relied upon regarding the defenders' knowledge of loose gratings. Mr Hanretty's suggested that the clear inference was that no report of this accident was ever made and that the pursuer had subsequently concocted a story and realised that a retrospective entry in the book was necessary to support it. I would be entitled to infer from that that no such event as described by the pursuer actually occurred. Mr Hanretty did not dispute that the pursuer might well have had pain in his back that particular day. It was not disputed that he had a history of a bad back. What was disputed was that from the evidence the court could confidently say that that back pain had come about in the way described by the pursuer. Mr Hanretty then referred to No.35/14 of process at page 6, namely the general practitioner's entry for Saturday 24 July 1993. That entry had referred to recurrent low back pain which was now constant. Mr Hanretty suggested that that indicated that the pursuer had been suffering ongoing episodes of back pain. Furthermore, as regards the pursuer's alleged account as to the most recent cause for his back pain, namely stepping off a pavement, the evidence of the general practitioner was to the effect that she would have made a more accurate record if the pursuer's explanation that that was like how the pain felt was given to her. In this connection Mr Hanretty referred to the pursuer's evidence which he suggested was to the effect that there had been no change in the level of the grating and therefore no jerk vertically to his back such as might be expected when unexpectedly stepping off a pavement. Therefore, that was not how the injury was suffered. The pursuer's evidence was that his injury had occurred on twisting, not on jarring. Therefore, stepping of a pavement was nothing like the pursuer's description in evidence of his accident. In the context of potential contemporaneous supporting material, Mr Hanretty also referred to No.31/2 of process at page 13 in which there was an entry for 6 December 1994 which referred to a slack grate. This matter arose in respect of an appeal made by the pursuer to the DSS for additional benefit. Mr Hanretty suggested that this was the only entry in all the documents produced from about the time of the accident which mentioned a grating at all and this document related to an entry made some one and a half years after the pursuer had suffered his alleged accident. Indeed, it was only in the course of the DSS appeal that any mention of any industrial accident was made at all. In the whole matter Mr Hanretty suggested that there was no contemporaneous document which supported the pursuer's version of events. Mr Hanretty did not dispute that the pursuer had complained of back pain in July 1993, but he suggested that the only evidence as to the description of the accident, or alleged accident, actually came from the pursuer himself. There was no support for the pursuer's version of events from either Paterson or Lindsay. Both Walker and Sammon had accepted that with the pursuer's record he could at any time get a twinge of back pain. Perhaps, therefore, the pursuer's back did go in the load back room in July 1993. However, neither Paterson nor Lindsay saw the grating move. The pursuer had been taken to the portacabin where he remained for one to one and a half hours. Mr Hanretty suggested that it was rather curious that if he were in pain that he would be left there for that period having just suffered an industrial injury. Mr Hanretty asked me to consider whether that was not more consistent with a recurrent backache and inconsistent with some catastrophic occurrence such as described by the pursuer. He asked me to compare what had been done by the pursuer on that occasion with the accident only shortly before to the pursuer on 18 May when he had gone to the nurse for treatment and had reported the matter to his employer. As to the incident in July the pursuer was aware that no contemporaneous report was made, but he was also aware that Paterson had gone to the site office to drop off the van keys. Despite the fact that the pursuer clearly knew that there was a nurse on site, he had left the site without seeing her. Furthermore, despite the fact that he alleged to have been in agony at the time, he was never taken to any hospital. Mr Hanretty asked me to consider whether it was realistic that two fellow workers knowing of an industrial accident to the pursuer causing a back injury would have driven him from Coulport past several hospitals all the way to Ardrossan. He suggested that was a long way to go with a sore back. He asked whether the pursuer really was the victim of an industrial accident rendering him immobile. He suggested that that version of events was not credible. He further suggested that it was more credible that the pursuer's back had gone out as had happened several times before. The pursuer clearly knew how to deal with that and that was why, said Mr Hanretty, he just wanted to get home. It was only a considerable time later that the pursuer attempted to report this occurrence as an industrial accident. He claimed that he attempted to do so the following day when he phoned the time-keeper who refused to put an entry in the book, but the time-keeper Mr Edwards, was not called to give evidence. In the knowledge that an entry was not put in the book, it was interesting that a considerable period later the pursuer still decided that an entry in the book was needed. In the whole matter Mr Hanretty suggested that the pursuer had not proved any industrial accident. That failure occurred even outwith the pursuer's credibility in relation to quantum of damages. Furthermore, Mr Hanretty suggested that I could come to that conclusion even without challenging the credibility of either Paterson or Lindsay. At this point Mr Hanretty made a concession regarding the pursuer's statutory case. Since the regulations involved strict liability, he accepted that if the accident occurred as the pursuer had said, then the first defenders would be liable in terms of the regulations.
35. Mr Hanretty then went on to deal with quantum of damages. He suggested that it was clear that the pursuer had a history of back problems. Indeed he had told Mr Walker that. However, he had denied that he had had any such problems in the 1970s up until the 1990s. His evidence had been that he had suffered back pain in 1975 while lifting a child on to a trampoline, but that there had been nothing else. It was clear that that incident in 1975 was the event which gave rise to his subsequent problems with his back. According to the assessment made on 16 August 1993 the pursuer had indicated that he had had back pain for eighteen years, that it had intensified and that the pain was worse at night. That was different to what he had said to Mr Walker and different to what he had said in evidence. Mr Hanretty pointed out that he had cross-examined the pursuer extensively and had put to him all of the episodes recorded in documents which related to back pain or similar problems in which the pursuer had had since 1975. The pursuer's evidence in regard to that was very unsatisfactory and affected his credibility in general. It certainly affected damages. How could it be that the pursuer had "forgotten" about eighteen years of pain. That defied credulity. He did remember the visit in August 1993 solely because he had been given a corset. He said that although he had a bad back he had no time off work. That appeared to be his yardstick for whether or not his back was bad. Even that was not true as he had been off work with back pain at least at the end of 1992. He had attempted to give an impression of a man who never missed a day's work in his life. Now that contrasted with the records of his general practitioner which recorded many absences from work, not a few of which had actually been certified by the general practitioner. Mr Hanretty asked how the pursuer could possibly, in all honesty, have forgotten these incidents. He submitted that the pursuer did not tell the truth regarding his back condition and was at least a man upon whom no reliance could be placed. Mr Hanretty thereafter dealt with the evidence of Mr Walker as contrasted with the evidence of Mr Sammon. He pointed out that as far as both of these persons were concerned, much of the opinion in evidence which they gave was dependent on what had actually be said to them by the pursuer. If I could not rely on the pursuer, then these opinions really did not matter. He did however disagree with the submissions made by Mr Clancy. Mr Hanretty took the view that Mr Walker was an unsatisfactory witness. For example, he could not remember when he read the medical records. He could not remember whether that was before or after he had examined the pursuer. A careful man would have read them before. He only saw the pursuer once. He admitted to an oversight regarding the Crosshouse Hospital entry about the assessment which Mr Hanretty suggested was very important regarding the medical history. Mr Hanretty questioned whether Mr Walker's evidence had been properly reasoned. Mr Hanretty referred to Mr Walker's original estimate of the pursuer's ability but for the so-called accident to continue in his employment for fifteen years. He pointed out that Mr Walker had revised that "guestimate" to between five and ten years. He could not say that either of these periods was more likely. Therefore Mr Clancy's estimate of eight years was not legitimate and that the maximum period during which he would have worked could be taken to be five years even if I were to accept Mr Walker fully. As to Mr Sammon, Mr Hanretty accepted that he had, as it were, "come cold" to the problem, although he had considered the Crosshouse Hospital notes. Mr Hanretty further accepted that Mr Sammon had not been a great witness during his evidence-in-chief, but in cross-examination he became more particular about the pursuer. Mr Hanretty accepted that Mr Sammon had had an incomplete picture. When the full picture was put to him in cross-examination he did not alter his opinion. Nothing objective had been put to him, for example test results, which would have caused him to change his mind. Therefore it was proper to take the view that any problems which the pursuer had experienced since a few months after the accident could not have been caused by any such accident. They were just a fact of his bad back. No one suggested that he did not have a bad back. There was a picture of declining health so far as his back was concerned from July 1993 to July 1998. There would have been increasing periods of time when he was unavailable for work until one day he would not be able to go to work anymore. Mr Hanretty suggested that I should prefer the evidence of Mr Sammon. He further pointed out that it was significant that Mr Sammon had been instructed not by the first defenders but by the pursuers.
36. As to the arithmetic involved in assessing any damages which might fall to be awarded, Mr Hanretty said that he and Mr Clancy were not far apart on the question of solatium, and agreed that the case of McFall was similar on its facts. He did suggest however that the pursuer in the case of McFall had been more bed-ridden by the pursuer and submitted that perhaps the sum of £9,000 with interest on three-quarters of that sum might be appropriate. Mr Hanretty did however take some exception in relation to wage loss. There was a joint minute regarding the pursuer's pre-accident wage. The pursuer's net wage in the year prior to 1993 amounted to about £304 per week, but it was accepted that Coulport paid about £100 and more than elsewhere. Therefore any likely net weekly wage thereafter should be viewed as £200. That was based on the undisputed wage slips which had been produced and the accepted evidence of the pursuer. Furthermore, a number of facts fell to be factored into any equation. First of all there was the fact that there was no likelihood of full employment and Mr Hanretty referred in this regard to average eight week gaps per annum in employment making the working year about 44 weeks. Accordingly, with a net wage of £200, multiplying that by 44 weeks would bring out a figure of £8,800 per annum. Furthermore, account had to be taken of the pursuer's declining ability to work. That was spoken to even by Mr Walker. Accordingly, from 1993 to 1998 there would have been a decline in earning capacity. If one took a broad axe approach of the loss figure at £8,800 for the first year and say deducted a £1,000 per annum thereafter, over the five year period which Mr Hanretty felt was appropriate, an approximate figure of £30,000 as to past wage loss would be arrived at, plus interest at the same rate considered by Mr Clancy of 36%. He suggested that this approach was favourable to the pursuer since when his earnings dropped below a certain level he might as other people do choose to accept benefit rather than to work. He submitted that this view was the highest that could possibly be said for the pursuer and was really based on the evidence of his own witness, Mr Walker. If Mr Sammon had to be preferred, then the pursuer would be entitled only to loss over a period of two to three months which would amount to say perhaps £2,000. Taking a medium view Mr Hanretty suggested than an appropriate figure in any event might be £4,000. Even that assumed that the pursuer would walk into another job and that other events would not have disabled him for a time. In the whole matter Mr Hanretty invited me to pronounce decree of absolvitor in favour of the first defenders.
37. I turn now to give my opinion in the case. This I can do quite shortly since I have already expressed my views as to many matters in the course of dealing with the evidence and submissions in the case. Also, I may point out at this early stage that I entirely agree with the submissions made by Mr Hanretty for the first defenders. I was satisfied that on 21 July 1993 the pursuer did hurt his back in the load bank room. That was clear from the immediately subsequent events. However, I was not satisfied that the pursuer had proved the averments which he made in relation to the causation of that back pain. These averments are to be found at page 6D to page 7B of the Record and are in the following terms:

"At the material time the pursuer was walking along the walkway and was about to go up the said stairs at the corner of the load bank room when suddenly and without warning a grating moved as he stood upon the edge of it and tipped up. The grating had not been secured to the surface of the walkway and it shifted under the pursuer's feet when he stood upon it and caused him to start to lose his balance. The pursuer attempted to retain his balance and stop himself from falling by trying to grab hold of a stantion which was nearby and which housed a stop button for the said generator. In so doing the pursuer twisted his body awkwardly and suddenly."

As I have already said, I did not accept that the pursuer had proved these essential averments. I did not accept him as a credible witness on this essential point for the reasons already given. In particular, I was of the view that the pursuer hid, or was economical with, the truth in relation to a large number of matters. That was even accepted to some extent by Mr Clancy. The pursuer failed to tell both the doctors who were treating him and those whom he saw for the purposes of litigation and also his legal representatives, the truth about matters which he knew were relevant to his claim. He concealed important details of his pre-1993 back problems. He knew that these matters were of relevance to his claim and I had to question whether his concealment was deliberate and made in order to improve his prospects in the case. I was also particularly influenced in this regard by his failure to report the accident to anyone. The pursuer clearly on the evidence knew of the existence and importance of accident reports and the accident book, both of which he had been involved with in the past. Also in this regard it was clear to me that he made up a story about trying to have an entry made retrospectively through the DSS. That was done according to him at a time at which he knew that he needed a report to have been made in order to get additional state benefits. I found this very suspicious indeed. Even if the pursuer had been to some extent disabled, he could easily have got Paterson or Lindsay to make the report for him. There was plenty of time for that to be done while the pursuer was waiting to be taken home. Furthermore, I did not find that the pursuer gained support from Lindsay or Paterson as to the exact locus and modus of the incident which he claimed to have occurred. It appeared to me that the pursuer was attempting to take advantage of previous incidents which had occurred regarding loose gratings in order to put blame on his employers. The question of a loose grating seemed to me to be a subsequent thought on the part of the pursuer. He never voiced that view as to the cause of his accident at the time. He never told either Paterson or Lindsay that that was how he had hurt his back. He never told his employers, by means of a report, that that was how the accident had happened. He never told any of the doctors that he saw, until considerably later that that was how the accident had happened. Indeed, his first report gave a completely different account to his general practitioner as to what had happened to him. For these and all the other reasons given by Mr Hanretty, I did not accept the evidence of the pursuer and therefore I find that these crucial averments at page 6 to 7 on the Record have not been proved. Accordingly, the pursuer has failed to satisfy me that the accident happened in the way he suggested.

38. Had I taken a different view of the pursuer's evidence I would of course have been required to award him damages. I am further required to state in this Opinion what the level of such damages would have been. As to the medical evidence I found that both Mr Walker and Mr Sammon were both to an extent unsatisfactory. In this regard I accepted many of the criticisms made by counsel in relation to each of these witnesses. Nevertheless, I would have required to have come to a view. I felt that it was significant that much of what both of these witnesses said was based upon what the pursuer told them. As I have already said, I found that the pursuer's evidence was not to be trusted, both in respect of the merits of the case and in respect of its medical aspects. I was also somewhat influenced in this regard by Mr Walker's failure to have proper regard to the pre-accident medical records. Also I found his evidence as to the likely working life of the pursuer and his change in his estimate thereof to be somewhat unsatisfactory.
39. In relation to the damages which would have been appropriate, I deal first of all with solatium. At the end of the day there was little between the parties who both agreed that the case of McFall was in point and provided assistance. Bearing in mind such additions and subtractions as suggested by counsel, I have come to the conclusion that I would probably have awarded the same sum of £10,000 with three-quarters thereof assignable to the past and attracting 4% interest per annum.
40. As to wage loss, much depended on the view that I took of the medical evidence regarding the pursuer's future ability to work. I found this very difficult to assess since many of the views expressed by both of the specialists depended, as I have said, upon what had been told to them by the pursuer whose evidence in this regard I could not accept. Furthermore, both Mr Walker and Mr Sammon had been put in a position of expressing opinions upon incomplete information. That was most unfortunate. But, in my view, that situation cannot be said to assist the pursuer's case. I therefore find, for the reasons given by Mr Hanretty, that I should reject the evidence of Mr Walker upon which Mr Clancy's various calculations were based and look to the alternatives. Relating that to what wage loss I consider the pursuer would legitimately have suffered, I cannot but conclude that Mr Hanretty's assessment is accurate, both as to the appropriate medical prognosis and to the appropriate calculation of wage loss. I therefore find that had I been awarding damages under this head I would have restricted them to the sum of £4,000.
41. In the whole matter therefore I repel the first plea-in-law for the pursuer and grant decree of absolviter in respect of the first, second and third defenders.