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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Neil v. East Ayrshire Council [2005] ScotCS CSOH_13 (25 January 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_13.html Cite as: [2005] CSOH 13, [2005] ScotCS CSOH_13

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Peter Neil v. East Ayrshire Council [2005] ScotCS CSOH_13 (25 January 2005)

1. The pursuer was born on 5 August 1948. He is employed as a plumber by the defenders. Between 1963 and 1968 he completed his apprenticeship with the former Ayrshire County Council. Since then he has worked in the plumbing trade. He took up employment with the defenders' statutory predecessors in 1981 and he has worked for these predecessors and then the defenders from that date. He continues to work for the defenders as a plumber. At all relevant dates the defenders had premises at Burnside Street, Kilmarnock, where the pursuer was based.
2. On 3 April 2002 the pursuer had an accident at work. He fell when descending from a loft space in an upper storey flat at 135 Brewlands Street, Galston. He suffered certain injuries. In this action the pursuer sues for damages as reparation in respect of these injuries. He alleges that the accident was caused by the fault of the defenders at common law and their breach of statutory duties imposed by Regulations 4 (suitability of work equipment), 8 (information and instructions) and 9 (training) of the Provision and Use of Work Equipment Regulations 1998. When Miss Springham came to address me on behalf of the pursuer, she explained that the case of common law fault was of failure to provide a safe system of work, a safe means of access and suitable and safe equipment to carry out the work on which the pursuer was employed. However, while Miss Springham did not depart from the common law case, she acknowledged that it added little to the statutory cases and she accepted that if the pursuer did not succeed on any of the statutory cases he could not succeed on the common law case. When I come to discuss liability I shall therefore do so under reference to the three regulations founded on by Miss Springham.
3. The appropriate quantification of all heads of damages has been agreed by way of Joint Minute between the parties. Accordingly, the principal issues for decision are, first, whether the defenders are liable to make reparation to the pursuer in respect of his injuries and, second, in the event that the defenders are liable to make reparation, whether the agreed sum of damages falls to be reduced by reason of the pursuer's own fault and negligence, as provided by section 1 of the Law Reform (Contributory Negligence) Act 1945. There is, however, an important subordinate issue which is whether in substance and reality the accident was solely caused by breach of statutory duty and negligence on the part of the pursuer. I heard proof on these issues.
4. At proof the witnesses for the pursuer were: the pursuer; Mr David Spelman, a housing officer who had formerly been employed by the defenders as a plumber and who at the time of the pursuer's accident was a trade union health and safety representative; and Mr Ian Miller, a safety consultant who was the author of a report, 6/9 of process. The witnesses for the defenders were: Mr George Park, the defenders' health and safety coordinator for building and works; Mr John Carrick, operations manager of the maintenance section of the defenders' building and works department; and Mr Brian Malone, a safety consultant.

The accident

5. I did not understand there to be any dispute as to the factual circumstances of the pursuer's accident. On the evening of 3 April 2002, and until 8 am the following morning the pursuer was on stand-by duty. He had with him a mobile telephone with which he had been provided by the defenders. At about 7 pm he was instructed by his controller (also referred to as the stand-by coordinator), Mr Robert Stevenson, to attend at the upstairs flat at 135 Brewlands Street, Galston, where the tenant, Mrs McGeoch, had complained that she had no supply of hot water. When he attended the pursuer formed the view that the cause of the problem was that when the downstairs flat had been vacated the outgoing tenant had left on taps with the result that a water tank which served both the flats had emptied and could not re-fill. The remedy which occurred to the pursuer was for entry to the vacant flat to be forced with a view to turning off the taps and he telephoned Mr Stevenson in order that he might arrange for the attendance of a joiner in order that that might be achieved. Mr Stevenson did not favour this expedient as it would require the presence of the police. As an alternative, he suggested that the pursuer should enter the loft space above the upstairs flat where the tank was located and plug the outlet which allowed water to drain to the taps in the downstairs flat. The pursuer followed this suggestion. There was a hatch giving access to the loft space set into the ceiling of the hallway of the upstairs flat. In order to open the hatch and then enter the loft space the pursuer used an aluminium step-ladder which was carried in his van. This, the pursuer explained, was "the step-ladder I had in the van that was what was issued to do the job with." The height of the top platform of this step-ladder from the floor when the step-ladder was erected was 5 feet 6 inches or about 1.7 metres. The distance from the floor of the hallway of the upstairs flat at 135 Brewlands Street to the ceiling was 9 feet or about 2.7 metres. The dimensions of the hatch were 660mm wide by 735mm long. The pursuer climbed the step-ladder and stood on the top platform. In this position the upper part of his body was within the loft space. He placed one hand on each of the opposite sides of the hatch. He then used his arms to push himself up and into the loft space. The pursuer gave his height as 5 feet 9 inches. He estimated his weight, as at April 2002, as being about 20 stone. The pursuer successfully made his way into the loft space and there plugged the outlet from the water tank which drained to the downstairs flat. The pursuer then attempted to descend from the loft space. In the course of doing so he fell to the ground and sustained the injuries, the quantification of reparation for which is agreed.
6. The precise mechanism by which the pursuer came to fall to the ground was not clear from the only direct evidence, which was that of the pursuer. I do not consider this to be of importance. The pursuer said that he sat with his bottom on the edge of the hatch opening. He put his legs out so that they were dangling below him. He intended to place his legs on the step-ladder but before he would be in a position to do so he required to move his bottom from the edge of the hatch opening and reach down with his feet. He did not in fact know whether he got his feet onto the step-ladder or not. All he could remember was of lying on the bathroom floor. He did not remember whether the step-ladder was then standing or not. When asked why he thought he fell, the pursuer replied that he thought that the "step-ladder was too short" and explained that had it been closer to the loft it would have been easier for him to get in and safer for him to get out. There being no dispute but that the pursuer did in fact accidentally fall in the circumstances described by him, it does not appear to me to matter that he admits, very frankly, that all he can remember is lying on the floor. I would regard the pursuer as a credible witness. In whatever precise circumstances, despite attempting to do so, he failed to get a secure foothold on a step-ladder, the topmost part of which was about a metre below the hatch from which he was descending. The possibilities would seem to be that the pursuer succeeded in placing one or both feet on a tread of the step-ladder but that in doing so he knocked the step-ladder over or otherwise displaced it, or, alternatively, that he failed altogether to locate the step-ladder with his feet. Whatever the mechanism, I am entirely prepared to accept that the pursuer's fall resulted from the distance between step-ladder and hatch. Had a secure foothold of some sort been available to the pursuer at a materially lesser distance from the hatch I consider that it is probable that the pursuer would not have fallen. Parties were agreed that the 5 feet 6 inches step-ladder was not suitable for the purpose of taking access to and egress from the loft space at 135 Brewlands Street by reason of its height, if nothing else. It was put to the pursuer in cross-examination that the step-ladder was clearly too short for the job. The pursuer agreed that it was. Mr Spelman thought that the step-ladder was "very short for the distance". Mr Park was of the same opinion: "In my view the step-ladder was too short for that job." It was also Mr Malone's view that the step-ladder used by the pursuer on the day of his accident was not a suitable way of getting down from the loft at 135 Brewlands Street. It appeared to me that the reason for this was satisfactorily articulated by Mr Miller: the gap between the hatch in the ceiling and the top of the step-ladder was such that someone descending from the loft space would have to locate the step-ladder with his feet at a time when his weight was going downwards and he had passed the point at which he could support himself by contact with the edge of the hatch (the "point of no return" as Mr Miller put it) and accordingly a failure to locate the step-ladder would result in a fall. I therefore find that the pursuer's fall was caused by the absence of a secure foothold sufficiently close to the hatch. In that sense I find that the fall was caused by the use of a 5 feet 6 inches step-ladder rather than some other means of getting access to and taking egress from the hatch which would have provided a secure foothold at a materially closer point.
7. Mr Park investigated the accident and visited the flat at 135 Brewlands Street in the company of Mr Spelman. They found the floor of the hallway, which was carpeted, to be somewhat uneven, as was averred by the pursuer in his pleadings. It was Mr Park's opinion that some of the floorboards were not flush. Mr Park prepared a report on his investigation, dated 9 April 2002, which is 6/11 of process. The report includes this sentence: "I believe that the ladder was wrongly positioned, stabled, and that the uneven floor may have been attributable to the accident." What Mr Park meant by the latter part of the sentence was that the uneven floor may have contributed to the accident. When giving evidence, Mr Park explained that the view expressed in this sentence represented no more than a guess on his part. On the basis of the evidence of Mr Park and Mr Spelman, taken with that of the pursuer, I accept that the floor of the hallway might be described as, to some extent, uneven, but I do not find it to have been established that that had anything to do with the pursuer's accident.
8. The 5 feet 6 inches step-ladder which the pursuer was using on 3 April 2002, had been issued to him some four weeks before. He received no instructions about its use. Other plumbers had been issued with step-ladders of identical design. These step-ladders were manufactured from aluminium with a top horizontal piece (described variously as a platform, a step or a tray) of fibre glass. This horizontal piece had holes which might be used to secure tools in position, suggesting that its intended use was as a tray. Number 6/9 of process is a report from the safety consultant instructed on behalf of the pursuer, Mr Miller. The report includes four photographs. The third photograph shows the pursuer standing beside a step-ladder of the same type as that he had been using on 3 April 2002. The fourth photograph is a view of the same step-ladder showing its fibre glass top horizontal piece. Imprinted on it are the words: "Warning. Do not sit or stand." The first two photographs in Mr Miller's report illustrate a step-ladder of similar but not identical design to the 5 feet 6 inches step-ladder placed beneath the loft hatch at 135 Brewlands Street. This step-ladder is larger than the step-ladder that the pursuer was using when he had his accident. It is about 7 feet 6 inches in height. It is the step-ladder which the pursuer has used subsequent to his accident. He explained that after his accident he refused to continue to use the 5 feet 6 inches ladder "because of the height of it". The defenders then "got a bigger one" from the Cumnock depot. The pursuer is shown in the photographs as standing on a rung of this larger step-ladder which is about 5 feet 6 inches from the ground with a view to illustrating the distance between loft hatch and the top platform of the 5 feet 6 inches step-ladder.
9. The general practice of the defenders at all relevant times was that their employees should use step-ladders when they required to get access into loft spaces. Mr Park described step-ladders as the preferred means of access to lofts for "as long as I can remember". Step-ladders were also by plumbers for purposes other than getting access to lofts. Mention was made in the evidence of working from step-ladders on wall-mounted boilers, gutters and down-pipes (although rhone and down-pipe work might require use of a double extension ladder).
10. When, on 3 April 2002, Mr Stevenson suggested to the pursuer that he should enter the loft space at 135 Brewlands Street, it did not occur to the pursuer first to request Mr Stevenson's assistance in obtaining another ladder with which to do so. The step-ladder, as he put it when asked about this during examination in chief, was, as I have already recorded, the one that he was "issued with to do the job". There was no other way of doing the job but by using the 5 feet 6 inches step-ladder. He explained that he could not get other ladders at that time in the evening as the stores at Burnside Street were locked, the store-man lived in Lesmahagow, a distance of 22 miles from Kilmarnock, and the pursuer did not have the store-man's phone number. Moreover, as the pursuer understood it, all ladders in the stores were the same size as the step-ladder that he had with him. That was not the evidence of Mr Park nor that of Mr Carrick. According to Mr Park there was a vast variety of step-ladders kept in the stores ranging from a two tread "step-up" to a 16 tread step-ladder which would be 5 or 6 metres high. While he explained that he himself did not "get into this side of things", it was Mr Park's understanding that a stand-by controller could call out a store-man out of hours with a view to obtaining, for example, a step-ladder. Mr Carrick explained that at Kilmarnock there was both a materials' store and a plant store. It was the key to the materials store that was held by the store-man. Ladders, of which there were over 100 of various designs, including step-ladders, were kept in the plant store. It was possible to get access to the plant store out of hours. Just which ladders would be found in the plant store at any particular time would depend upon what had been issued to individual workmen and what were the demands of the particular works being carried on at the time. According to Mr Carrick, while each plumber would have his own step-ladder, there was no question of workmen being required to use a standard issue step-ladder. It was open to the individual to approach his supervisor and request a particular step-ladder. It was Mr Carrick's evidence that if a request was made to a controller for a larger step-ladder, out of hours, then the request would be pursued. He envisaged that a controller might arrange for the opening up of the plant store in order to obtain a larger step-ladder.

Access to a loft space: the general suitability of using a step-ladder

11. In addition to what was specific to the circumstances of the accident I also heard evidence and argument directed at the more general issue as to whether any step-ladder can ever be suitable, in the sense defined in the 1998 Regulations, for access to and egress from a loft space. It was Miss Springham's contention that step-ladders are generally not suitable for use in accessing lofts. It was her submission, under particular reference to the evidence of Mr Spelman and Mr Miller and the terms of a publication by the Health and Safety Executive, Health and Safety in Construction (second edition published in 2001), 6/5 of process, and, indeed, what appeared in the copy of the instructor's notes of the defenders' ladder safety awareness course, 7/14 of process, that the preferable and safer means of getting access to a loft space was by use of an extending surveyor's ladder. The particular deficiencies of a step-ladder which Miss Springham emphasised were that its use precluded the user from always maintaining three points of contact (with feet and hands) and that it did not permit the projection of a stile for a sufficient height (about 1 metre) beyond the point at which the user would step off in order to provide a hand-hold. Mr Marnie disputed Miss Springham's contention, relying on the evidence of Mr Park and Mr Malone, the absence of any prohibition on the use of step-ladders in 6/5 of process and the evidence, for example from the pursuer, of the extensive use of step-ladders by tradesmen including the pursuer for, among other purposes, getting access to loft spaces, without any apparent particular history of accidents. The pursuer accepted in cross-examination that prior to the issue of the 5 feet 6 inches step-ladder he had been quite happy using a wooden step-ladder of about 6 feet 4 inches, or 1.94 metres, in height for the purpose of getting access into lofts.
12. Notwithstanding what I heard by way of evidence and argument, I do not propose to express any view on the general question of the suitability of step-ladders for the purpose of getting access to a loft space. I do not consider it possible to do so in any sort of sensible way. In this context "suitability" is to be judged by the precise construction or state of adaptation of the piece of work equipment in question, here a step-ladder, and the precise nature of the operations for which it is used, here access to a loft space. I simply do not understand how one can make any sort of meaningful assessment of the suitability of a step-ladder for getting access to a loft space unless one knows details of the construction of the step-ladder and details of the location and dimensions of the loft space and any hatch or other means of entering it. At least in certain circumstances, there would seem to me to be force in Mr Marnie's observations as to the availability of the edge of an open hatch as hand-holds which, in other situations have to be taken on the ladder itself (hence the entirely understandable emphasis in the documents on keeping three points of contact and having the ladder project beyond the stepping off point). I am not persuaded that it is appropriate to make any determination simply by reference to generalities as to what amounts to good practice in the positioning and of climbing ladders. In any event, on the evidence led, I am certainly not satisfied that it has been established that no step-ladder, whatever its exact design and construction, could be "suitable" as a means of getting access to any loft space, even if the loft spaces under consideration were to be restricted to those which might be found above ceilings at about 7 to 9 feet from floor level.

The pursuer's experience, training, instructions and his perception of risk

13. As at 3 April 2002 the pursuer was a very experienced plumber. He had extensive experience of the use of step-ladders in the course of his work. He accepted that a step-ladder could be described as multi-purpose. It could be used in a number of situations, in bathrooms, in kitchens and in basements. The pursuer agreed that among the desirable characteristics of a step-ladder were that it was reasonably light, sturdy, durable, not awkward to carry, not likely to damage property, and easy to use for most of the jobs for which it would be required most of the time.
14. The pursuer normally used a step-ladder when he had occasion to go into a loft space through a ceiling hatch. Going into loft spaces was a regular part of the pursuer's job as a plumber. He might do this six or seven times per week. The heights of ceiling hatches which the pursuer might be expected to get access through vary as between about 7 feet from the floor to about 9 feet from the floor. Following his return to work after his accident he has continued to use a step-ladder in order to get access into loft spaces. Previous to being issued with the 5 feet 6 inches step-ladder shortly before the accident the pursuer had used a wooden step-ladder of about 6 feet 4 inches, or 1.94 metres, in height. He now uses a 7 feet 6 inches step-ladder of the design illustrated in 6/9 of process. Its top horizontal is in the form of a fibreglass tray, as I have previously described. When using this step-ladder the pursuer steps up from and down onto this tray. When issued with the 5 feet 6 inches step-ladder some four weeks before the accident the pursuer was given no instructions about using it. However, on 24 October 2000 the pursuer had attended what was described as a ladder safety awareness course which had been presented by Mr Robert Cook, a now retired charge hand who had formerly been employed by the defenders. This course had been organised by the defenders for a number of their employees. A copy of the instructor's notes which give an indication of the contents of this course is 7/14 of process. During his cross-examination pages 2, 4 and 17 to 18 of 7/14 of process were put to the pursuer. He accepted that what appeared on these pages had been covered at the course that he had attended.
15. I have already recorded that the pursuer accepted that the step-ladder used by him on 3 April 2002 was clearly too short for the job. Later in cross-examination it was put to him that its use was potentially dangerous. He agreed that it could be put in that way and when it was asserted that he was taking a risk he replied "Aye I suppose so". He accepted that he had been instructed not to do a job which could not be done safely: "that is what they tell you", and when much the same point was put to him again, later in his cross-examination: "that is what they teach you". He also accepted that the danger of using a step-ladder that was too short was obvious. The pursuer accepted that, had he been properly following procedure, he would have stopped as soon as he appreciated that the step-ladder he had with him was too short for the job. He accepted that had he reported to his controller that his ladder was too short to allow him safely to get access to the loft space, then the difficulty would be for the controller to deal with: it would become the controller's problem. He accepted that he had not reported to his controller in these terms but that it would have been possible for him to do so. He accepted that he could not be forced to do something that he considered unsafe. While he accepted these points as they were put to him in cross-examination, I had the impression that the pursuer regarded them as rather theoretical and at a distance from the practical situation in which he found himself on 3 April 2002. He would have regarded it as "awkward" to "walk off the job". In his mind there was no way of doing the job other than by using the step-ladder with which he had been issued. As I have noted, he accepted in cross-examination that he had been taking a risk. However, in re-examination he was asked whether at the time of his accident he thought he was taking a risk. His answer was "no".

Risk assessment

16. The activity of loft entry through a stairwell hatch was subject to a risk assessment by Mr Park in December 1998. This was revised in November 2000 and, again, in March 2003. In evidence Mr Park described this as a generic risk assessment by which I understood him to mean an assessment of a general activity which would frequently be repeated rather than a specific task. A copy of the documentation of the assessment and its revisions was lodged as 7/13 of process. Falling is identified as a risk in 7/13. Among the listed methods of risk control is "suitable access ladder / step-ladder". Mr Park explained his reference to an access ladder as meaning a fixed ladder rather than one that was portable. As was the case with the defenders more generally, Mr Park's own preferred method of getting access to a loft was by step-ladder.

Suitability of work equipment

17. I now to turn to the first statutory case relied on by the pursuer. The Provision and Use of Work Equipment Regulations 1998 define work equipment as "any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)". In terms of regulation 3 (2) the requirements imposed by the Regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work. In terms of regulation 3 (3) the requirements imposed by the Regulations on an employer also apply to a person who has control to any extent of (i) work equipment, (ii) a person at work who uses or supervises or manages the use of work equipment or (iii) the way in which work equipment is used at work. The Regulations further provide:

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

18. It was undisputed by the parties that the step-ladder in question was work equipment which was provided for use and used by an employee of the defenders at work and that, accordingly, the provisions of the 1998 Regulations applied as to its selection and use. That being so, it was Miss Springham's submission, on behalf of the pursuer, that the circumstances of the accident, taken with the rest of the evidence, disclosed a causally effective breach by the defenders of their statutory duties both under regulation 4(2) and regulation 4(3). For the defenders, Mr Marnie submitted that there had been no breach.
19. In relation to regulation 4(2), Miss Springham relied on the evidence, touched on in paragraph [11] above, which points to the deficiencies of a step-ladder as a means by which to gain access to a loft space. Here, Miss Springham said, the defenders had selected a particular design of step-ladder as work equipment, an example of which had been provided to the pursuer for use in a variety of premises. The defenders may not have known the precise risks in particular premises but they did know in general terms the sort of premises where the step-ladder would be used. The defenders knew there would be a gap of some sort between the top of step-ladder and ceiling, no matter what was the height of the ceiling, and, accordingly a risk to the pursuer if he used a step-ladder. The guidance provided by the Health and Safety Executive was relevant in this respect. The defenders knew that if an employee such as the pursuer was standing two or three treads from the top of a step-ladder, as required by the ladder safety awareness course instructor's notes, there would be an even greater gap. It was obvious that the employee would not be able to maintain three points of contact as he used the step-ladder to get into the loft space, no matter what was the precise layout of the premises. It was obvious that an employee would not be able to step off a step-ladder with part of it extending into loft in order to provide a hand-hold. On the basis of this Miss Springham submitted that it could be concluded that the defenders had failed to have regard to working conditions and risks to health and safety of their employees which existed in the premises where work equipment was to be used, as was required by this regulation 4(2). Had they done so they ought not to have provided the pursuer with a 5 feet 6 inches step-ladder to use when accessing loft spaces. Indeed they ought not to have issued a step-ladder for accessing loft spaces at all. Accordingly, the defenders were in breach of duty. Had the defenders complied with their duty, the accident would not have happened. In relation to regulation 4(3) Miss Springham adopted what had been said in Moohan v Glasgow City Council 2003 SCLR 367 at 377D to E and 378C to F. She reminded me that the obligation on the defenders as employers was in absolute terms and unqualified by considerations of reasonable practicality, for example: the obligation was to ensure that work equipment was used only for operations for which, and under conditions for which, it is suitable. The issue of training was separate: regulation 9 addressed that. Here the 5 feet 6 inches step-ladder was work equipment. On the evidence of all the witnesses it had been used for an operation (taking egress from the loft space, a commonly occurring feature of the pursuer's work) for which it was not suitable, having regard to the foreseeable risk that the pursuer would fall as a result of using it. There had therefore been a breach of regulation 4(3). That breach had caused the pursuer's accident.
20. Mr Marnie, on behalf of the defenders, did not accept that there had been a breach of the regulation. This was not a case of an alleged contravention of regulation 4(1). As far as regulation 4(2) was concerned, it was Mr Marnie's submission, on the basis of the evidence, that the defenders had had regard to the working conditions of their employees. They had conducted a risk assessment. However, a local authority, such as the defenders, could not be expected to know of the all the particular circumstances in which work equipment might be used. They were therefore entitled to have regard to the results of risk assessments and to the training that they had provided to their employees. Turning to regulation 4(3), Mr Marnie submitted that there no evidence of a reasonably foreseeable risk associated with using step-ladders for the task of loft access. There was no evidence of a history of accidents or complaints. The Health and Safety Executive publication, Health and Safety in Construction (second edition published in 2001), 6/5 of process, was simply for guidance. It did not contain a prohibition on the use of step-ladders. The pursuer was engaged in providing an out-of-hours service directed at all sorts of plumbing tasks. The defenders had given express instructions not to use equipment in conditions where it would not be suitable to do so. It was not a breach of regulation 4(3) if an employee used a piece of equipment that was patently unsuitable for a particular operation or in a way that he had been told not to use it. Here there was no breach. It was simply not reasonably foreseeable that an experienced employee would ignore ordinary practice and precise instructions and use this particular step-ladder to get access to a ceiling some 9 feet high. The obligation imposed by the regulation was not absolute. Mr Marnie referred to Skinner v Scottish Ambulance Service 2004 SLT 834, Yorkshire Traction Co v Searby [2003] EWCA Civ 1856 at para 47, Horton v Taplin Contracts [2003] ICR 179 at 181H; and Griffiths v Vauxhall Motors [2003] EWCA Civ 412 at para 47.
21. In my opinion the pursuer has not established that his accident was directly caused by a breach of regulation 4(2) of the 1998 Regulations and that for a number of reasons. The obligation imposed by this paragraph of regulation 4 is simply to have regard to certain matters when selecting work equipment. In this case I consider that I had before me virtually no direct evidence as to what matters were in fact had regard to by the defenders when the type of step-ladder of which the 5 feet 6 inches step-ladder was an example was selected. That the defenders carried out a risk assessment of the activity of getting access to loft spaces may very well indicate that they have had regard to the working conditions of their employees and the risks to health and safety which exist in certain premises in which they work for the purpose of determining how these risks might be managed but I would understand a risk assessment to be a different exercise from what is required by regulation 4(2). A risk assessment seeks to identify risks associated with tasks or activities. Regulation 4(2) has to do with selecting equipment in the light of, inter alia, risks that have been identified. Insofar as there was any direct evidence as to what the defenders might have regard to when selecting the step-ladder in question, it came from Mr Carroll (who accepted that he was not a ladder or step-ladder expert and who did not claim to know the dimensions of the ladders which conformed to this type). He described the 5 feet 6 inches step-ladder as "of the type we have approved for use". That observation may not have provided very much in the way of information but, if anything, it did indicate that the defenders had carried out some sort of assessment of the suitability (in the general sense of that word) of the design of the step-ladder used by the pursuer at the time of his accident and found it to be suitable. I would be prepared to assume, in the absence of any indication to the contrary, that such an assessment would have included health and safety considerations in that the evidence relating to the risk assessment and all the other evidence suggested to me that the defenders were aware of their responsibility to safeguard the health and safety of their employees. Miss Springham, as I understood her argument, invited me to infer that the defenders had failed to have regard to the working conditions and to the risks to the health and safety of persons which existed in the premises or undertaking in which that work equipment was to be used and any additional risk posed by the use of that work equipment, because had they done so they would not have selected step-ladders as the equipment to be used for getting access to loft spaces. For that argument to get any distance there has to be accepted the proposition which Miss Springham had contended for: that any step-ladder, whatever its dimensions and design, is not a "suitable" (in the specific sense provided by regulation 4(4)) piece of equipment by means of which to get access to a loft space. I have found that proposition not to have been established but even if I had I would not have thought it proper to infer from that that the defenders must have failed in their regulation 4(2) obligations. It appears to me that an employer might conscientiously discharge his obligations under regulation 4(2) and yet select an item of work of equipment which, in the opinion of the court, was not "suitable" in terms of regulation 4(4). In such a case use of the item of work equipment would involve a breach of regulation 4(3). It does not appear to me that it follows that its selection would necessarily breach regulation 4(2). The "selecting" that I have in mind here is at the stage of the decision spoken to by Mr Carrick: the appraising and then ordering of the equipment with a view to it being added to the defenders' inventory. I can see that, in certain circumstances, the issuing or provision of an item of work equipment to an employee might properly be regarded as the "selecting" of the equipment by the employer. I do not consider this to be such a case. Here the pursuer was issued with the 5 feet 6 inches step-ladder to be carried in his van, no doubt in the expectation that this would be the step-ladder that he would use on most occasions when a step-ladder was required. However, I accept the evidence of Mr Park and Mr Carrick, which I did not see as at all inconsistent with that of the pursuer, that it was open to any employee of the defenders to request an alternative or additional step-ladder (or other item of equipment) whenever he considered that the circumstances of a particular job required it and to delay doing the job until it was provided. In particular I accept what was said by Mr Carrick: it was not simply a matter of "There is your ladder - use it".
22. In contrast to the conclusion that I have come to in relation to regulation 4(2), in my opinion the pursuer has established that his accident was caused by a breach of regulation 4(3) of the 1998 Regulations. That the pursuer used the 5 feet 6 inches step-ladder to get access to and take egress from a hatch in a ceiling situated 9 feet above floor level had the result that the defenders failed to ensure that work equipment was used only for operations for which, and under conditions for which, it was suitable. Mr Marnie sought to persuade me that there could have been no breach of regulation 4(3) because it was not reasonably foreseeable that the pursuer would use this step-ladder for this task. I was not persuaded. I would have thought that when a workman is provided with a 5 feet 6 inches step-ladder and only such a step-ladder, it is reasonably foreseeable that he might use it to get access to a point which is somewhat above its safe reach (even where the workman has the option of requesting a longer ladder) but even if I am wrong about that, it does not appear to me to matter. It is not necessary for there to be breach of regulation 4(3) that the relevant use is foreseeable to the employer of a workman whose use may amount to a contravention of what the statute requires. The obligation imposed on the defenders by this provision was only to use equipment which was suitable. The relevant use which constituted a contravention of the regulation was the pursuer attempting to climb down the step-ladder after he had put it up and used it to climb up and get access into the loft space at 135 Brewlands Street. It was not, for example, the defenders arranging for the step-ladder to be put in the pursuer's van. Quite clearly, determination of whether equipment is suitable depends upon what is reasonably foreseeable in the event of the equipment being used for a particular operation under particular conditions. That is stated in terms by regulation 4(4). However, in my opinion, the point in time at which that determination is to be made is when, on the one hand, the state of construction and adaptation of the equipment is known or knowable, and, on the other hand, the operation for which and the conditions under which it is to be used are known or knowable. In this case that was no earlier than when the pursuer decided to use the step-ladder to get access to the loft space at 135 Brewlands Street. At that point it would have been reasonably foreseeable to a person of ordinary intelligence, apprised of the facts, that the proposed use might have an adverse affect on the health or safety of the pursuer (by reason of the risk of falling - a risk readily appreciated by all the witnesses, including the pursuer) and that the step-ladder was therefore not suitable for the operation of getting access to the loft. It does not seem to me to matter that the use of the step-ladder for this particular purpose was exclusively under the control of the pursuer or, indeed, that he was the only person apprised of the relevant facts. The pursuer was an employee of the defenders. His use was the defenders' use but, in any event, the fact that he used it for an operation for which it was not suitable had the result that the defenders had failed to ensure that it was used only for operations for which, and under conditions for which, it was suitable. That the decision to use this particular step-ladder was that of the pursuer may have relevance to questions of sole fault or contributory negligence, which I shall have to consider, but it does not mean that the defenders cannot be in breach of the statutory duty which is imposed on them. I have found nothing in the authorities to which I was referred by Mr Marnie to point me to a different conclusion. The opinion of Sir David Edward in Skinner v Scottish Ambulance Service, a case concerning the relevancy of averments relating to the additional cost consequent upon adopting a safer item of equipment in response to an allegation of breach of regulation 4, points to difficulties in the interpretation of the 1998 Regulations but it does not encourage a broad construction of "suitable" of the sort to which Mr Marnie's submissions, and, in particular, his rhetorical question, "what more should the defenders have done?", would seem to point. In Yorkshire Traction Co v Searby Chadwick LJ approved a "qualitative assessment of the risk of injury" as what was required in determining whether equipment was suitable for the purposes of regulation 5 of the Provision and Use of Work Equipment Regulations 1992 (the predecessor and exact equivalent of regulation 4 of the 1998 Regulations). This was to be contrasted with determining simply whether conditions of use presented a possible cause of injury. Bodey J was to the same effect when, after considering the terms of regulation 5(1) and (4) of the 1992 Regulations in Horton v Taplin Contracts supra at 181H he said: "the target of achieving suitability for purpose is to be measured by reference to such hazards to anyone's health or safety as are reasonably foreseeable". I do not see anything in my approach to what is meant by reasonable foreseeability in this case which is inconsistent with what was said by Chadwick LJ or Bodey J (cf Moohan v Glasgow City Council supra at 378C to F). In Griffiths v Vauxhall Motors supra the claimant sustained injury when a torque gun that he was using suddenly moved upwards by reason of what was referred to as "kickback". The trial judge found that the gun had always worked as it was intended to work but to avoid injury by reason of kickback it was necessary that the operator should hold on to the gun tightly. The cause of the claimant's injury was that he had not done so. The Court of Appeal dismissed an appeal by the claimant who had founded, inter alia, on breach of regulation 4 of the 1998 Regulations. Mr Marnie referred me to what Judge LJ said at para 47 of the judgment:

"In my judgment, work equipment is not to be regarded as unsuitable for the purposes of The Provision and Use of Work Equipment Regulations 1998 when injury results from inadequate control of or mishandling of the equipment which would otherwise have been safe for use by the employee seeking damages for breach of statutory duty. Other causes of action may be available to him, but not this one."

Miss Springham went the distance of acknowledging that what had been said in Griffiths might not sit entirely comfortably with her submissions but she emphasised that the facts in that case were to be distinguished from the facts here. I agree with what Miss Springham said about distinguishing facts. In contrast to Griffiths, it does not appear to me that the present case is one of inadequate control or mishandling of equipment that would otherwise have been safe. In the conditions in which it was used the step-ladder was not a safe item of equipment, irrespective of how it was controlled or handled. Admittedly, the pursuer chose to use an item of equipment that was unsuitable for the operation he was engaged upon but I do not see that as a failure of control or mishandling.

Information and instructions and training

23. The pursuer also founded on regulation 8(1) and (3) and regulation 9(1). Miss Springham explained that she wished to present her submissions on regulation 8 which dealt with information and instructions together with those on regulation 9 which dealt with training. The relevant provisions are in the following terms:

"Information and instructions

8(1) Every employer shall ensure that all persons who use work equipment have available to them adequate health and safety information and, where appropriate, written instructions pertaining to the use of the work equipment.
...

(3) Without prejudice to the generality of paragraphs (1) or (2), the information and instructions required by either of those paragraphs shall include information and, where appropriate, written instructions on -
(a) the conditions in which and the methods by which the work equipment may be used;
(b) foreseeable abnormal situations and the action to be taken if such a situation were to occur; and
(c) any conclusions to be drawn from experience in using the work equipment.
...

Training
9(1) Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken. ..."

24. In developing her submissions on information, instructions and training, Miss Springham emphasised that the obligations under regulations 8 and 9 were to ensure the availability of adequate information and to ensure the receipt of adequate training. On the evidence the only information or training that had been made available to the pursuer was that given at the ladder safety awareness course. That, Miss Springham submitted, had not been "adequate". The training given at the ladder safety awareness course, as judged by the instructor's notes, was contradictory to what was practised. The training was that the workman should keep his feet two to three treads from the top of a step-ladder, that he should never work off the top step and that he should ensure that he maintain three point contact with the step-ladder whenever possible. In relation to roof ladders, which were used in situations to some extent similar to loft access, the training was that the ladder should be long enough to allow a one metre extension beyond the stepping off point in order to give a firm hand-hold. None of this training was put into practice when a step-ladder was used for loft access. Further, the training was general rather than task specific. As Mr Miller had confirmed in evidence, to be effective training needs to be specific to the tasks that workmen were actually doing. The pursuer (and his fellow plumbers) should have been given training that was specific to accessing lofts which was an everyday part of his job. Had the instructions and training provided to the pursuer been adequate it would have included the information that the 5 feet 6 inches step-ladder should not be used to access loft spaces. Had that information been given then it is likely that the accident would not have happened. The pursuer's contention in fact went further: he should have been instructed not to use any step-ladder to access a loft space, but in order to succeed on this aspect of the case it was unnecessary that that contention be accepted. It was sufficient that it be accepted that the pursuer should have been instructed not to use the 5 feet 6 inches step-ladder.
25. In reply to Miss Springham, Mr Marnie reminded me of the extent of the pursuer's experience. The pursuer had been using step-ladders for years. Mr Marnie also reminded me of the contents of the ladder safety awareness course and the pursuer's acceptance of the following points: that he knew that it was for him to carry out his own risk assessment before embarking on a job, that he had to satisfy himself that any ladder to be used was appropriate for the job, that it had to be properly positioned, and that if a ladder was too short that its use was potentially dangerous. What was critical was what the pursuer actually knew at the time of the accident. Miss Springham had been unable to point to one piece of information that the pursuer did not have but which he should have had. Miss Springham's approach was, in any event, flawed in that she concentrated her criticism on certain parts of the training material, for example working on roofs. What was or was not adequate in the way of information and training was a matter on which opinions might vary. The pursuer had apparently been happy with his training and Mr Malone had given evidence to the effect that in his view the instructor's notes covered all aspects of the job. There was no compelling case, submitted Mr Marnie, that the training which was provided to the pursuer was other than adequate.
26. While there may have been some force in Miss Springham's criticisms of the content of the ladder safety awareness course, for any inadequacy in the information or training provided to the pursuer to be of relevance, it must be possible to point to something which the pursuer did not know but which he would have known had he received adequate information and training, and which had he known would have prevented the accident. The only piece of information which I understood Miss Springham to put forward as having that quality was that the 5 feet 6 inches step-ladder should not be used to access loft spaces. I would reject the proposition that a 5 feet 6 inches step-ladder can never be a suitable or safe means of access to any loft space whatever the height of the ceiling and I would accordingly reject the proposition that the information and training received by the pursuer was not adequate because it failed to prohibit all such use of step-ladder as unsafe. However, there is no dispute but that a 5 feet 6 inches step-ladder such as that the pursuer was using on 3 April 2002 was not a suitable and was not a safe means of access to the loft space at 135 Brewlands Street because the ceiling was about 9 feet high. On the basis of the evidence it would therefore be true to say that it is not safe to access a loft space above a 9 feet ceiling using a 5 feet 6 inches step-ladder. I take Miss Springham's argument to be or at least to comprehend that adequate information or adequate training would have imparted that piece of knowledge but that the information and training actually received did not. Assuming for the moment that that is so, in my opinion it has not been established that had this piece of knowledge been so imparted the pursuer would not have had his accident. On the basis of his own evidence he appears to have been fully aware that to use a 5 feet 6 inches step-ladder to get access to a loft space above a 9 feet ceiling presented an obvious risk to his health and safety by reason of falling. As I would see it the reason that the pursuer had his accident was not that he did not know about the risk but that he chose to run the risk. I have not been persuaded that the omission of the information that it is not safe to use a 5 feet 6 inches step-ladder to get access to a loft space above a 9 feet ceiling means that the information or the training which was received by the pursuer was not adequate in terms of the regulations but even if I had been persuaded otherwise, I cannot see how such an omission could be taken as having caused the accident. In my opinion the pursuer fails on this part of his case.

Sole fault

27. The pursuer has established that the defenders were in breach of their statutory duty under regulation 4(3) of the 1998 Regulations and that that was a direct cause of his accident. However, that breach came about by reason of a choice that was made by the pursuer and, by virtue of regulation 3(3)(i) and (iii) of the Regulations by using the step-ladder for the operation of accessing the loft space at 135 Brewlands Street the pursuer himself was in breach of statutory duty. As Mr Marnie submitted, the pursuer knew there was a gap, he knew that the 5 feet 6 inches step-ladder was too short for that gap, he knew that he should contact his controller if he took the view that he did not have the equipment to do a job safely, and yet he proceeded regardless of the risk, albeit, as Mr Marnie recognised, for no worse reason than to get on with the job and restore the tenant's water supply. It was that, Mr Marnie submitted, which had brought the defenders into breach: the wrongful act of the pursuer. In these circumstances, so Mr Marnie said, the pursuer was not entitled to reparation. Miss Springham denied that, in all the circumstances of the case, the pursuer was to be regarded as being at fault but she accepted the soundness of the principle upon which Mr Marnie relied: if the fault was indeed entirely that of the pursuer and him alone then he would not be entitled to reparation from a defender who was only in breach of duty because of the pursuer's actions.
28. It was agreed by counsel that the relevant law is to be found set out in the judgement of Pearson J, as he then was, in Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414, a decision which had been followed, among others, by Lord Mackay of Clashfern in Lanigan v Derek Crouch Construction Ltd 1985 SLT 346 and by the Court of Appeal in Sherlock v Chester City Council [2004] EWCA (Civ) 210. In Ginty, the plaintiff, an experienced asbestos roof sheeter, had been instructed and understood that he was not to work on asbestos roofs without using boards and he knew that there were statutory regulations on the subject. Nevertheless, and despite the fact that duck-boards were immediately available for his use, he went on an asbestos roof with defective sheeting without using boards. He fell through the roof and was seriously injured. He sued his employer who, through him, was held to have been in breach of a statutory obligation to use suitable and sufficient ladders, duck ladders or crawling boards. Pearson J held that in the circumstances it was quite impossible to impose a liability on the employer because the plaintiff himself had decided to take the risk and not to use the boards, and accordingly the plaintiff must fail. Pearson J explained the principle underlying his decision in these terms (supra at 423I to 424D):

"In my view the important and fundamental question in a case like this is not whether there was a delegation, but simply the usual question: Whose fault was it? ... If the answer to that question is that in substance and reality the accident was solely due to the fault of the plaintiff, so that he was the sole author of his own wrong, he is disentitled to recover. But that has to be applied to the particular case and it is not necessarily conclusive for the employer to show that it was a wrongful act of the employee plaintiff which caused the accident. It might also appear from the evidence that something was done or omitted by the employer which caused or contributed to the accident; there may have been a lack of proper supervision or lack of proper instructions; the employer may have employed for this purpose some insufficiently experienced men, or he may in the past have acquiesced in some wrong behaviour on the part of the men. Therefore if one finds that the immediate and direct cause of the accident was some wrongful act of the man, that is not decisive. One has to inquire whether the fault of the employer under the statutory regulations consists of, and is co-extensive with, the wrongful act of the employee. If there is some fault on the part of the employer which goes beyond or is independent of the wrongful act of the employee, and was a cause of the accident, the employer has some liability."

29. I am unable to conclude that in substance and reality the accident on 3 April 2002 was solely due to the fault of the pursuer, so that he was the sole author of his own wrong (in the sense of injury). The pursuer was specifically instructed by his controller to get access to the loft space of the upstairs flat, the pursuer having previously suggested an alternative expedient. A step-ladder was the defenders' preferred means whereby a plumber should get access to and egress from a loft space. Taking access to a loft space was a frequent part of a plumber's work. The pursuer had been issued with one 5 feet 6 inches aluminium step-ladder to be carried in his van, in place of a larger wooden step-ladder which the pursuer had previously used without incident. The defenders had not given the pursuer any particular instructions when issuing him with the smaller ladder. In the circumstances it is understandable that the pursuer regarded the 5 feet 6 inches step-ladder as equipment that he had been "issued with to do the job". The duty imposed on the defenders by regulation 4(3) is the high one of ensuring that work equipment is used only for operations for which, and under conditions for which, it is suitable. Here the defenders effectively relied for their discharge of that duty on the judgement and discretion of out of hours plumbers such as the pursuer selecting only suitable equipment or identifying that they did not have suitable equipment and reporting to their controllers for further instructions. Now I immediately accept that in certain instances an employer will be unable to do more than that. In the course of submissions there was some discussion about the consequences of an employee using a screwdriver for an operation where a chisel but not a screwdriver would be suitable, or vice versa. It may be that where the employee may need a screwdriver or a chisel and the employer supplies him with a suitable screwdriver, or variety of screwdrivers, and a suitable chisel, or variety of chisels, and provides him with adequate information and training about screwdrivers and chisels, the employer is entitled to rely on the employee making appropriate choices and only using an item of equipment which is suitable for the operation in hand. If the employee wrongly chooses to use a screwdriver for an operation where a chisel but not a screwdriver would be suitable, then the employer will be in breach of regulation 4(3), but the employer will be able to maintain that the breach was solely the fault of the employee and that therefore in a question simply between the employee and the employer, the employee is not entitled to reparation. I do not see that as quite the situation here. Getting access to loft spaces was a frequent part of the work of plumbers. The defenders approved the use of step-ladders for that task. The height of loft spaces varies. The defenders supplied the pursuer with one step-ladder to carry with him in his van. It was lighter and smaller than the step-ladder that he had used previously and was unsuitable for access to a loft space above a 9 feet ceiling. A 9 feet ceiling is within the range of commonly encountered ceiling heights. The pursuer was not supplied with an additional ladder. The pursuer had not been made aware of the ready availability of alternative larger step-ladders after hours. It appears to me that in these circumstances that fault on the part of the pursuer was not the sole reason for breach of regulation 4(3). It follows that, while I do consider the pursuer to have been at fault, in the sense of not taking reasonable care for his own safety and being himself in breach of regulation 4(3), I do not find him, for that reason, to be disentitled from recovering reparation.

Contributory negligence

30. There remains the question whether the damages to be awarded to the pursuer should be reduced on the ground of contributory negligence and, if so, what should be the extent of the reduction. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides:

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. . ."

The word "fault", in the application of the Act to Scotland, is defined by section 5(a) in these terms:

"wrongful act, breach of statutory duty or negligent act or omission which gives rise to a liability in damages or would, apart from this Act, give rise to the defence of contributory negligence."

31. Miss Springham reminded me that it was not usual to have marked findings of contributory negligence in a case where the employer is found to be in breach of his statutory duty. In the event of a finding of contributory negligence it should not exceed 25 per cent. While not arguing for a 100 per cent reduction, Mr Marnie submitted that it was difficult to a clearer breach on the part of a pursuer, given the level of his skills and experience.
32. When exercising the power conferred by section 1(1) of the 1945 Act, the court can do little more than make a very broad judgement, as to the respective degrees of responsibility of the parties. It is difficult to put out of ones mind that the pursuer here, while taking a risk, was doing so entirely for the benefit of the tenant of the flat who had no supply of water. The pursuer's approach was to get on with the job with the equipment he had to hand rather than taking no action other than reporting to his controller with a view to it becoming the controller's "problem" or walking away and coming back the next day with a bigger ladder, which were alternatives which Mr Marnie had suggested in cross-examination that he should have followed. Even Mr Marnie accepted that if anyone in the courtroom had been in the position of the tenant they would have preferred that the plumber sent out restore their water supply should be someone with the helpful attitude of the pursuer rather than someone who was more inclined to focus on the difficulties. However, Mr Marnie submitted that that was irrelevant and it is true that there are examples in the authorities where workmen who have taken risks simply with a view to getting on with their jobs and not for any other purpose, have been found not entitled to recover. Ginty and Lanigan are two such cases, albeit decided on the issue of sole fault rather than contributory negligence. Miss Springham's observation as to it being unusual to make a marked finding of contributory negligence in a case of statutory breach by an employer is supported by a comment to that effect by Buxton LJ in Toole v Bolton Metropolitan Borough Council [2002] EWCA (Civ) 588. However, much depends on context and as was said by Latham LJ in Sherlock supra at para 32 in relation to the passage from the judgement of Buxton LJ in Toole:

"There may well be some justification for that view in cases of momentary inattention by an employee. But where a risk has been consciously accepted by an employee, it seems to me that different considerations may arise. That is particularly so where the employee is skilled and the precaution in question is neither esoteric nor one which he could not take himself."

It may well be inappropriate to make a significant reduction from damages in respect of contributory negligence constituted by momentary inattention to the employee's own safety where the employer has been found to have failed in a statutory duty the very purpose of which is to protect the employee against such momentary inattention. The example of a statutory obligation to guard moving machinery comes to mind. It is different when the employee's fault is of a more deliberate sort. In Sherlock the Court of Appeal reduced the claimant's damages by 60 per cent. The present case is not one of momentary inattention. Rather, it is to be regarded as one where the pursuer, albeit with the best of intentions, made a choice which put him in statutory breach and which meant that he had failed to take reasonable steps to protect his own safety. In all the circumstances I consider that it would be just and equitable to reduce the damages to be awarded to the pursuer in respect of the defenders' breach of regulation 4(3) by reason of his contributory fault. The reduction will be 50 per cent.

Damages

33. As I have previously indicated, the appropriate quantification of all heads of damages has been agreed by way of Joint Minute between the parties. Solatium has been agreed at £7,000, with interest running on £4667 of that sum at the rate of 4 per centum per annum from the date of the accident until the date of decree. Wage loss has been agreed at £5115 with interest of £585 having accrued as at 6 September 2004 and interest running on £5115 from 6 September 2004 the rate of 8 per cent per annum until the date of decree. Compensation for services has been agreed at £500 inclusive of interest. Having regard to my determination of the issue of contributory fault, these figures will fall to be reduced by 50 per cent in terms of section 1 (1) of the 1945 Act.

Decision

34. I shall accordingly uphold the defenders' fifth plea-in-law to the extent of reducing the pursuer's damages by 50 per cent. I shall repel the defenders' first to fourth pleas-in-law. Having regard to the terms of the parties' Joint Minute and my determination of contributory fault it would appear to me that the principal sum of damages to be awarded will be £6307.50 to which should be added £292.50 as accrued interest on wage loss up to 6 September 2004. Awards of interest should be made on the sum of £2333.50 at the rate of 4 per cent from 3 April 2002 until decree; on the sum of £2557.50 at the rate of 8 per cent from 6 September 2004 until decree; and on the principal sum of £6307.50 at the rate of 8 per cent from the date of decree until payment. I am, however, conscious of the risk of arithmetical error on my part and, accordingly the case shall be brought out by order with a view to parties confirming the sum in respect of which decree should be pronounced. Meanwhile I shall reserve all questions of expenses.