Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 173
PD2947/09	OPINION OF MORAG WISE, QC (Sitting as a Temporary Judge) in the cause BRIAN JAMES SMITH Pursuer; against JAMES STRANG LIMITED Defenders: ________________

Pursuer: Sanders, Advocate; Thorntons Law LLP

Defender: C Murray, Advocate; Simpson & Marwick

9 November 2012

Introduction

[1] This is an action for damages for personal injuries sustained by the pursuer when subcontracted by the defenders to carry out fencing work. While primary liability is admitted by the defenders, the contentious issues between the parties relate to the circumstances in which the accident occurred, including the issue of contributory negligence and quantification of the pursuer's loss. I heard eight days of evidence and submissions on these issues.

Factual Background

[2] The pursuer is thirty one years old. He trades on his own account as a fencing contractor and has done so since about 2004. In March 2008 he was working in Mennock, Dumfries and Galloway. He had been subcontracted by the Defenders to carry out fencing work as part of works to construct a new section of the A76 there. The main contractor on the site was Raynesway Construction, part of the Balfour Beattie group of companies. The defenders provided the pursuer with a Bryce Suma Powershift, a post driver machine, to assist in the construction of the fence. They certified him as competent to use such a machine. On 11 March 2008 the pursuer suffered a serious injury to his right hand when the left sleeve of his fleece jacket became caught in the lever mechanism of the machine when he was manually attempting to realign a fence post using his right hand. It is that accident that gave rise to these proceedings.

The Bryce Suma Post Driver machine

[3] The equipment provided to the pursuer by the defenders is a hydraulically operated post driver which must be mounted to a vehicle, most commonly a tractor, to provide the hydraulic power. The particular model used by the pursuer was designed by a farmer, a Jock Bryce. The machine has a "mast", a tall vertical section, which holds a 400 kg hammer weight and a striking plate, known as a post cap, in a running channel. The post cap is hooked on with a chain and sits below the hammer weight. It has a short spike on its underside which is used to straighten or otherwise adjust wooden posts using the various controls. The weight is raised and lowered through operation of a hydraulic lever contained within a control panel. The machine assists the driving of a wooden post into the ground. The post is inserted under the post cap, the weight is raised using one of the levers and then lowered using another lever so that it drops onto the post cap which transfers the force onto the post to drive it into the ground.

[4] A post driver of the type used by the pursuer on the day of the accident is shown in the illustrations within the Operators Instruction Manual No 6/31 of process. The operating levers of the machine form part of a control panel of eight levers. The panel is situated close to the centreline of the post driver mast, in quite close proximity to the hammer weight and post cap. At the time of the pursuer's accident, there was no cover or adequate guard rail over the control levers to prevent them from being unintentionally activated. There was a single bar, but it was not sufficient to prevent activation of the levers. The hammer release lever could be operated with one hand. Had a spring loaded handle (colloquially known as a "dead man's handle") been fitted to the hammer release lever, the use of that control would have been a two handed operation. That would prevent an operator from holding the fence post when the hammer was being released. Also, the pursuer said that the rightmost lever of the control panel was longer than the rest. His position was to some extent supported by the evidence of David Craig and also by Barry Russell. David Craig said that the rightmost lever was separate from the rest of the levers.

[5] The second page of Bryce Suma Powershift Operators Instruction Manual referred to above lists fourteen Safety Rules to be read by operators of the machine. These include the following:

"6. Do not operate the post driver without the post cap in place

9 Never allow an assistant to hold a post in position, while being hammered, the post cap is provided for that function.

10. Never allow any part of the body to pass under the hammer, when it is in the raised position."

There was no post cap attached to the Powershift or post driver being operated by the pursuer on the day of his accident.

[6] The pursuer had owned his own post driver machine and tractor but these had been irreparably damaged in a road traffic accident on 12 February 2008. Accordingly, on 13 February 2008 he underwent brief training at the defenders' premises in Denny and was duly certified as being competent to use safely an agricultural tractor and Sumo Powershift Post Driver. The relative training record and certificate are Nos 7/4 and 7/5 of process and were spoken to in evidence. It was not seriously disputed that the training was little more than a cursory examination of the pursuer driving a tractor with post driver attached. It was undertaken so that the pursuer could work on the site in accordance with rules laid down by the main contractor.

[7] The Bryce Suma Powershift operated by the pursuer on the day of the accident had been checked on 12 February 2008 by David Craig, a plant and transport manger employed by the defenders. Mr Craig was at the material time responsible for the daily running of all of the defenders' plant and transport. Most of his work involved the transit pick up vehicles, HGV's and mini excavators owned by the defenders. He was responsible for more than 30 items of vehicle and plant, but there had only ever been one powershift post driver, the one involved in the pursuer's accident. It had been purchased second hand by the defenders from a fencing contractor. On 12 February 2008 he had undertaken a check of the Bryce Suma powershift in advance of it being used at the A76 Raynesway site. He completed and signed a checklist, No 6/19 of process. The checklist is a general form that can be completed for any of the defenders' plant. It contains a number of references to items that have no relevance to a post driver (eg engine, coolant, tyres) and none specific to such a machine. Thus there is nothing in the completed form to indicate whether or not there was a post cap attached to the post driver when it was checked by Mr Craig. In evidence his recollection was that it had been present, although he could not remember any details, such as checking the chain attaching it to the mast. He was very clear that when the machine came back to the yard after the accident, there was no post cap attached to it.

[8] I accept the evidence of Mr Craig, who presented as a careful and conscientious employee. I am satisfied on balance that the post cap was attached to the post driver when it left the defenders' yard in mid February. While it is difficult to be certain as to how it came to be removed, I consider it unlikely that the post cap was somehow removed after it left the defenders' premises but before it was handed over to the pursuer. The accident did not take place until 11 March 2008. The pursuer's position (and that of his colleague Barry Russell) was that there was no post cap attached to the Bryce Suma Powershift when it was given to him, yet he did not raise that mater with anyone on site. He knew the dangers involved in using the machine with no post cap but seemed content to do so. Bill Cassells, a Health and Safety Consultant called as an expert witness for the pursuer, has for about 11 years owned a post driver very similar to that involved in this accident. He said that it was not uncommon for the shear bolts fixing on the post cap to fail. Later in this opinion I make adverse findings in relation to the pursuer's credibility generally. I do not accept his evidence that there was no post cap on the machine when he received it. While I am unable to go so far as to find that he deliberately removed the post cap from the machine himself, it seems to me to be more likely than not that it came to be separated from the machine at some point between its delivery to site in mid February and the date of the accident on 11 March. So the defenders delivered it to site with the post cap attached and at some point while it was being used by the pursuer it became separated from the machine. There was some suggestion that work could be done quicker by one person without the post cap being attached, but the pursuer was assisted by Barry Russell on this job and was not carrying out the work by himself. While the post cap was never found after the accident, I do not consider that material as it could have been apart from the machine for a period of weeks prior to the accident. Whether the post cap came loose and fell off because the sheer bolts failed or whether the pursuer removed it, what is absolutely clear is that the pursuer knew that the machine should not be used without a post cap and was experienced enough to know the dangers of doing so. I will return to that issue in relation to contributory negligence.

[9] The basis on which liability is conceded by the defenders in this case is regulation 4 of the Provision and Use of Work Equipment Regulations 1998. regulation 4(1) provides that:

"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."

In terms of regulation 3(3)(a) the duty imposed by regulation 4 is an absolute and continuing one and is owed by any person who exercises control to any extent of work equipment. As it is conceded that the post cap was not present on the post driver at the time of the accident, it follows that the equipment, which was owned by the defenders and accordingly within their control, was not suitable for the purpose for which it was being used. There was, however, no concession that the defenders failed in their common law duties or of any breach of Regulations 11 or 17 of the 1998 Regulations. I will return to those matters after considering the mechanism of the pursuer's accident.

The circumstances and causes of the pursuer's accident on 11 March 2008

[10] In the afternoon of 11 March at about 3pm, the Pursuer was operating the post driver machine to drive in fence posts. His colleague Barry Russell was working about 150 yards away, stapling nets in the fence. The hammer weight of the post driver was raised, poised to be dropped on a 100mm x 100 mm post. The pursuer noticed that the post was not aligned properly, probably because of a stone below it. He put his hand on it to reposition it. As he did so, the sleeve of his fleece jacket caught the rightmost lever on the control panel and the hammer weight was released onto his right hand, causing a crushing injury. Had the post cap been attached, that could have been used to realign the post and the pursuer would not have put his hand on it.

[11] While Mr Russell did not witness the accident itself, he heard the pursuer shout for help immediately afterwards and ran to him. The pursuer had managed to free his injured hand from the weight and had wrapped a towel around it. Kevin Quigley, who was at that time the site manager on the project but who was by the date of proof a project manager with Balfour Beattie, was in the site compound when the pursuer and Barry Russell arrived there. He realised that the pursuer required immediate medical attention. He took the pursuer to Dumfries & Galloway Royal Infirmary ("DGRI") and was informed that the pursuer would require to stay there overnight.

[12] On 12 March 2012 an investigation into the causes of the pursuer's accident commenced. Kevin Quigley was involved in the investigation although it was led by Ian Hislop, the company's safety adviser. Mr Quigley was involved in the interviews and statements stage of the investigation. He said in evidence that he had been present when the pursuer was interviewed by Mr Hislop in hospital. He confirmed that the pursuer had explained the mechanism of the accident as being that the sleeve of his jumper/fleece caught in the lever that is used to drop the hammer weight. There had been some discussion about whether the pursuer had been using a post holder in the course of his work. A post holder in a non mechanical instrument for straightening fence posts. It is sometimes called a "crook" as it resembles slightly a shepherd's crook in size and design, although the top is almost square so that it can fit over the top of a post. The pursuer's position was that he had been using a post holder in his work in the absence of a post cap on the machine. However, there was no dispute that the accident occurred when he was using his hand rather than a post holder to reposition a fence post. Mr Quigley was familiar with Balfour Beattie's report following the investigation, No 6/ 20 of process. That report is critical of the method statement and risk assessment in place at the time of the pursuer's accident (No 6/21 of process) for the activity he was involved in and concludes that there was no safe system of work in place. It concluded also that the control levers on the post driver machine were too close to the hammer and were unprotected, with no enabling switch and that this was one of the immediate causes of the accident. However, the causes also include the pursuer's failure to use a post holder, resulting in him using his hand to align the post. One of the "corrective actions" suggested in the report is to ensure that suitable equipment be procured with robust protective systems in place. Mr Quigley agreed with the terms of the report when it was prepared and in evidence. He acknowledged that the control panel of the machine had one bar fitted as a guard but he considered that to be inadequate as it was at the lower level of the controls and would not prevent inadvertent striking of the hammer control lever.

[13] Duncan Brown was the contracts manager employed by the defenders at the material time. On 12 March 2008 he had completed the accident report relating to the pursuer's accident the previous day. That report (No 6/18 of process) records that the accident happened when the lever controlling the hammer of the post driver was caught in the pursuer's clothing, which accorded with Mr Brown's recollection of what he had been told at the time. He explained that the defenders were part of Ludden Construction. Ludden carried out their own investigation into the accident. A report was prepared by Ludden's own Health and Safety Adviser, an Adrian Aikman. On 4 April 2008 Mr Aikman emailed his report to, amongst others, Kevin Quigley and Duncan Brown. The e mail and the report are lodged at No 6/19 of process. That report (at page 6) concluded that the simple and unprotected nature of the controls on the post driver made it possible for the hammer to be unintentionally released. In addition there was criticism of the contents of the method statement, which was vague and the risk assessment which failed to consider the risks associated with using the equipment. The report recommended that the machine be modified in two ways: (i) by fitting a cover over the control levers to prevent unintentional activation and (ii) by fitting a spring loaded clip on the hammer release lever so that it became a two handed operation. In evidence Mr Brown said he "couldn't argue with" the first conclusion in relation to the unprotected nature of the levers. He had been unhappy at the time about the criticism of the method statement, which he had written. However, he did not think he was in a position to argue with the main contractor (Raynesway) about it. After the accident Mr Brown had become involved in the decision to cease using the pursuer as a contractor because of his failure on several occasions to turn up on site at the end of May 2008. His letter to that effect is lodged at No 7/11 of process.

[14] Some independent evidence on the health and safety issues in the case was adduced from Bill Cassells, a consultant in that field. He spoke to a report he had prepared, together with various photographs, all lodged at No 6/30 of process. Mr Cassells, who has knowledge of post drivers having owned and operated his own Bryce Suma powershift for many years, was critical of the defenders' risk assessment (No 6/21). The section of the risk assessment relating to "Install Timber Strainer Posts & Stobs" notes the potential for damage to limbs and serious crush injuries and states:

"... use post cap for holding large strainer posts in position. If stobs require to be held in position whilst driving into ground, post holder 'tongs' must be used".

In Mr Cassell's view this was an unsafe instruction and contrary to the manufacturer's own safety guidance. In his opinion, the absence of the post cap coupled with the extended, non standard, extension on the hammer weight control lever both materially contributed to the accident. In evidence he agreed that fitting a proper guard over the controls and fitting a safety clip or " dead man's handle" to make the hammer release a two handed operation would render the machine safer, although it would still have the potential to cause serious injury. He had not fitted a cover or extra guard to his own machine since hearing of the pursuer's accident. Both of the safety features suggested (a guard and a safety clip to the handle) would have been inexpensive modifications. Under cross examination Mr Cassells accepted that there were no circumstances in which a fence post driver operator would require to go near the post under a raised hammer, which would be an extremely high risk activity. It was clear he would never do such a thing himself.

Credibility and reliability

[15] A significant challenge to the credibility and reliability of the pursuer's evidence was made by the defenders. First, he gave evidence that he had been involved in a road traffic accident the week before commencing work in February 2008. His vehicles had been written off but he said he had not been injured. However it transpired that he had raised proceedings against another driver in that accident, claiming that a back condition had been aggravated by the incident. His GP had been cited in connection with that case, although the pursuer's medical records (No 7/1 of Process) had no note of any consultation about the accident or its sequelae at all. Secondly, the pursuer has a very poor driving record, with four separate instances of driving without insurance. He has also been convicted from driving while disqualified from holding or obtaining a driver's licence. Details of the various relevant road traffic contraventions were agreed during the proof and are narrated in a Joint Minute No 34 of process. Further, the pursuer secured a policy of insurance for his business vehicle which clearly does not provide cover for business use. He and his partner Jenna Black, give conflicting accounts of how it had come about that the insurance policy for the pursuer's business vehicle runs in the name of Ms Black. The pursuer seemed to say it was because Ms Black could take advantage of a " no claims bonus" but she said that she applied for the insurance cover because she was good at completing forms using a computer and in any event they were both going to drive the vehicle. It is noteworthy in light of that evidence that when the policy on question was taken out (see No 7/25 of Process) the pursuer had eight penalty points in his driving licence, which were not disclosed to the insurer. During a period of disqualification from driving the pursuer had purchased two vehicles. When applying for the policy for one of these, a Nissan four wheel drive vehicle, the pursuer had incorrectly given information that he had not been convicted of any motoring offence or been disqualified from driving during the preceding five years - see No 6/36 of process. Further, when applying for a tradesman insurance policy in July 2008, the pursuer (or someone on his behalf) had answered a question about whether he had sustained loss, damage, injury or disability during the previous three years in the negative, an astounding response in light of the claims now being made.

[16] Further issues relative to credibility arise from an application the pursuer made for job seekers' allowance in October 2009. In the application form, which is signed by the pursuer and forms No 7/31 of process, the pursuer confirms that he is not currently doing any work and that his business has ceased trading permanently. He confirms also that he has no injury as a result of an accident at work. In fact the pursuer had undertaken a substantial piece of work at Crieff Hydro which he invoiced on 1 October 2009 (No 7/13 of process). He received payments totalling £3,286 during October 2009 for work carried out in his business as a fencing contractor. It seems clear that the pursuer gave false information in completing the job seeker's allowance form in an attempt to secure state benefits. While it is not part of the court's task in these proceedings to investigate the extent of any false claim for state benefits (and no evidence was led of the extent of benefits actually received), I conclude that in applying for job seeker's allowance in October 2009 the pursuer gave such answers to the questions being asked of him that best suited his purpose rather than those that were true and accurate.

[17] There was evidence about the history of the pursuer's registration for VAT in connection with his business at the end of 2008. During 2009 he rendered VAT invoices and collected VAT from customers. He has not prepared or submitted any VAT returns. His accountant, Mr McEwan, gave evidence that he had prepared four returns for the pursuer to check and sign. The pursuer's position was that he had become VAT registered because the defenders had asked why he had no VAT registration and seemed to expect him to have it. However, as Counsel for the defenders pointed out, the pursuer became VAT registered some months after he ceased doing any work for the defenders. In any event, the turnover of the pursuer's business was comfortably below the VAT threshold. I find the pursuer's account in relation to this chapter of evidence to be unsatisfactory. What is clear is that for a period of time he held out to customers that he was VAT registered and required to add VAT to his invoices, but he did not forward the money collected to HMRC.

[18] It was submitted for the defenders that aspects of the pursuer's evidence were in any event unreliable. In particular, various instances of the pursuer being vague or unreliable in his evidence about his sources of work, the amounts paid to subcontractors and the nature and extent of his business outgoings. His evidence was inconsistent with that of his father William Smith, his brother Cairn Smith and his accountant Mr McEwen. It was acknowledged by his Counsel that the pursuer was someone who was poor in attending to paperwork and to the detail of running a business.

[19] I consider there is considerable force in the challenges made by the defenders in relation to the pursuer's credibility. Over a number of years, the pursuer has shown a tendency to disregard authority and to give information he knows to be incorrect with a view to benefitting financially, either directly or indirectly. Some of the instances of that relied upon by the defenders would not be so significant in isolation. However, there is a pattern to the pursuer's behaviour that I consider is relevant in addressing some of the issues in this case. As indicated, I have accepted in general terms the pursuer's account of the accident because it was consistent with what was said to other witness shortly after the event and because, although he was alone at the moment of the injury being sustained, others (Barry Russell and Kevin Quigley) saw the impact of it when they assisted him. The criticisms made by the defenders of the pursuer's account of the accident seemed to me to be a little overstated. For example, it was submitted that the pursuer was anxious to suggest he was using a post holder at the time of the accident, yet his account was that his right hand was on the fence post. This ignores the obvious point that the pursuer did not suggest he was using a post holder at the very moment of the accident, just that he had been using one during the course of his work that day. Also, it was contended that the pursuer's account of the sleeve of his fleece having caught the lever was inconsistent and implausible. However, Duncan Brown recollected that the pursuer had given that explanation at the time and this was recorded as the mechanism of the accident in the Balfour Beatty Report (No 6/20 of process). Notwithstanding the adverse conclusion I have reached on the pursuer's credibility I do not consider that there is any force in the contention that his account of the mechanism of the accident was implausible. The issues with the pursuer's credibility have much more bearing on the quantification of his loss.

[20] There was no serious challenge to the credibility of most of the other witnesses and I consider that they were all doing their best to assist the court. I had some concerns about the reliability of Barry Russell's recollection on matters of detail such as the presence or absence of the post cap prior to the accident. Mr Russell has continued to work with the pursuer and is no doubt aware of the pursuer's position on that issue. I do not suggest that Mr Russell was being untruthful, simply that his own recollection was vague and he may have persuaded himself that he had never seen a post cap on the machine. He gave no detail about when he first saw the machine on site. The defenders challenge the conclusion reached by Adrian Aikman and suggested that his evidence was illogical insofar as it criticised the defenders' method statement. For the reasons given below I reject that challenge and accept the criticisms made by Mr Aikman.

Liability and Contributory Negligence

[21] On the basis of the evidence led, including the reports spoken to, I conclude that the main cause of the pursuer's accident was the absence of the post cap. There were important contributory factors, such as the absence of a suitable guard rail that would have prevented the control lever being operated when the Pursuer's fleece became caught in it. Further, had there been a spring loaded handle on the lever that was used to lower the hammer, two hands would have been required to operate it and it would not have been possible for the pursuer's hand to be on the post while the hammer was released. All of these factors caused or materially contributed to the pursuer's accident. In general I accept the pursuer's account of how the accident happened, which was supported by those who saw or spoke with him shortly afterwards. The defenders have, properly in my view, conceded a breach of regulation 4 of the Provision and Use of Work Equipment Regulations 1998. I have decided that they were also in breach of regulations 11 and 17. The control panel of the post driver, which operated a 400kg hammer, was in my view the type of dangerous part that required a fixed guard that would prevent access to it in terms of regulation 11. Such guard as was present was unsuitable, failing as it did to prevent the one handed operation of the lever which lowered the hammer (reg 11(3)). Further, I am of the view that the Defenders did not ensure, as they must in terms of regulation 17(3), that when the post driver, which was work equipment, was about to start, there would be no risk to the Pursuer's health or safety as a result of the operation of the control lever that released the hammer. It would have been reasonably practicable for them to ensure the Pursuer's safety by fitting a spring loaded clip so that the lever could only be operated with two hands. A proper guard has been fitted to the post driver since the pursuer's accident. There was a clear causal link between these breaches of statutory duty and the pursuer's loss. I have also reached the view that the defenders were in breach of their common law duty of care to the pursuer. The system of work they designed was not safe, as highlighted in the Balfour Beatty report No 6/20 of process. As Counsel for the pursuer pointed out, the defenders' procedures actively condoned and even recommended that in certain circumstances the machine could and should have been used without the post cap - Method Statement No 6/21 of process. Mr Aikman conducted a thorough enquiry following the accident. I do not accept that he was overzealous as contended for the defenders. He concluded that the system could have been made safe by requiring a two-handed operation of the hammer lever. Despite these conclusions on primary liability, however, it is important that the pursuer was well aware of the extreme danger involved in placing his hand on a post while operating the post driver and it is not seriously disputed that his actions contributed to the accident. The issue is to what extent?

[22] The Pursuer contends for a finding of less than 20% contributory negligence. Reliance was placed on the decision of Lord Hodge in McLellan v Dundee City Council 2009 Rep LR 64. In that case (at para 29) it was emphasised under reference to authority that an employer in carrying out his statutory duties and in the exercise of his common law duty must recognise that an employee may not act with care at all times. In McLellan the pursuer, a gardener, had been injured when attempting to release a blockage in a lawn mower when he dropped a crowbar and his fingers became trapped between the rotating cutter and the sole plate of the mower. Primary responsibility lay with his employers who had failed to explain to the pursuer of the risk of the cutter blades kicking or partially rotating on the release of stored energy. Contributory negligence was assessed at 20%. The Defenders suggest a finding of contributory negligence in excess of 60%, contending that if it was established that the post cap was in place when the post driver was given to the pursuer the finding should be as high as 80%. While accepting that each case turned on its own facts and circumstances, it was contended that where a pursuer had wilfully accepted a risk (as opposed to inadvertence) a level of contributory negligence in the region of 50% was normally justified - Neil v East Ayrshire Council [2005] CSOH 13. Comparative cases were said to include Boyes v Carnation Foods Limited 1986 SLT 145, Anderson v Thames Case Limited 1987 SLT 564, Samson v NCB 1980 SLT (Notes) 57 and Nicholson v British Coal Corporation 1989 GWD 4-176. Interestingly, all of these were cases of accidents where primary liability attached to the employer but the employee had failed to look out for their own safety to a material extent and in each case contributory negligence was assessed at 50%. However, it was argued that the pursuer in this case acted in the knowledge of certain danger and that his actions were manifestly dangerous and cavalier in the extreme. Accordingly, a higher percentage of contributory negligence was justified. I have reached the view that a reasonably substantial finding of contributory negligence is appropriate in this case. The pursuer was an experienced fencer and had owned and operated his own post driver machine. He had failed to read the instruction manual which gave clear warnings about the danger of placing any body part under the raised hammer. His actings were extremely careless and he accepted in evidence that what he done was very dangerous He was aware of the risk he took. I have concluded that the post cap had become detached from the post driver after it had been delivered to him. Witnesses who had some familiarity with a post driver machine all said they could not envisage any circumstances in which they would place a hand on a fence post under the raised hammer (Duncan Brown, Cairn Smith, Adrian Aikman and Bill Cassells). Balancing the pursuer's actings against the findings I have made (one of which was conceded) in respect of primary liability, I consider that the pursuer's share in the responsibility for his injuries can appropriately be assessed at 50%.

Quantification of Loss
Solatium

[23] The pursuer sustained a crush injury to his right hand. It was not in dispute that these injuries were undisplaced fractures of the right index and middle finger metacarpals and undisplaced fractures of the right index and middle finger phalanges, together with some undisplaced fracture to the intra-articular MCP joint extension. These injuries are summarised in a letter to the pursuer's GP following a clinic appointment at Perth Royal Infirmary on 17 March 2008 - see No 6/1 of process. While the injury was quite severe and must have been extremely painful, fortunately there was no significant nerve damage. The carpel tunnel was compressed to allow for the swelling, a small area of skin flap was debrided and the wound was irrigated. At the second surgical look at the wound, there was no need for debridement. The treatment the pursuer received at Dumfries and Galloway Royal Infirmary ("DGRI") was conservative and entirely appropriate.

[24] On discharge from DGRI the pursuer recuperated at the home of his parents, William and Helen Smith and was supported by his girlfriend Jenna Black. In evidence his parents spoke to some care they had to provide for him for a short period after his return, as did Jenna Black, but the pursuer was back at work within about eight weeks of the accident. He failed to attend follow up medical appointments or wear a compression glove provided to him by the Occupational therapy team. It was not disputed that he was back working on a contract at Bishopbriggs for the defenders in mid May 2008. The disputed issue was the length of time after the accident that the pursuer continued to suffer and to what extent. In particular, there was considerable dispute about whether he was left with a loss of grip strength in his right hand. Evidence on this issue was led on the pursuer's case from Mr Carlos Wigderowitz and in the defender's case from Mr David Ross. Messrs Wigderowitz and Ross are both very experienced consultant orthopaedic surgeons. Both prepared reports for the court's assistance and both are well qualified so to report.

[25] Carlos Wigderowitz, who qualified originally in the 1980's in Brazil, is a consultant orthopaedic surgeon and lecturer in Dundee. His primary contract is with the University of Dundee and his time is divided equally between his work as a senior lecturer and his position as an NHS consultant and Ninewells. He is a member of the British Society of Surgery to the Hand. He spoke to his report No 6/17 of process, prepared after he examined the pursuer in October 2008. While he found that Mr Smith had a good range of movement in his hand, he used a dynamometer to test his grip strength. A hand dynamometer works by the patient gripping a vertical bar with his hand. The gauge of the instrument then measures the strength of the grip in kilogrammes. Inevitably, such an instrument requires the patient to make optimal effort for the reading to assess the grip strength accurately. In October 2008, Mr Wigderowitz's findings, having used the dynamometer, were that the pursuer's grip strength was 20kg on the right dominant hand compared with 50kg on the left. He concluded at that time that it was very unlikely that the pursuer would ever recover the same grip strength that he had before the accident. During the examination, Mr Wigderowitz found the pursuer to be co-operative. He felt the results of the grip strength test were consistent with the history. The pursuer also complained more of a cold sensation in his hand, particularly in the morning. Mr Wigderowitz explained that with a relatively severe injury of this type, sensitivity to cold and paraesthesia can be permanent. The use heated packs and gloves by the pursuer in the morning were sensible and would assist. Following his first report, Mr Wigderowitz had seen a report from Mr David Ross, (No 7/3 of process) expressing the view that grip strength measurements, while helpful in a clinical setting were inappropriate for a medico legal report. Mr Wigderowitz did not accept the distinction between the two types of reporting. When asked to comment on Mr Ross's view on the period of time for improvement of grip strength following such an injury, Mr Wigderowitz agreed that two years was the accepted threshold for improvement. However, he expressed the view that if the hand has not recovered after two years there will be no further recovery and disagreed with Mr Ross's view (in 2010) that such disability as remained would last for only a further year. Mr Wigderowitz considered that there was likely to be some permanent loss of strength. His spoke to his written response (No 6/32 of process) to Mr Ross's criticisms of his position. He referred to literature that supported a contention that crushing injuries were more difficult to reconstruct than cuts where it was easier to re-establish the circulation. Crushing injuries led to poorer outcomes because they could not be repaired.

[26] Mr Widgerowitz examined the pursuer again in July 2010 and prepared a report (No 6/22 of process) where he found a little improvement in the right hand grip strength (25kg). Most recently he saw the pursuer in May 2012 and produced a further report of 29 May (No 6/42 of process). He found that nothing had changed much so far as the pursuer's grip strength was concerned. Over the period 2008‑2012 he had tested the pursuer's grip strength on three occasions and the results were 50kg, 50 kg and 40kg in the left hand and 20 kg, 25kg and 20kg in the right. Thus he said the readings were consistently about half the strength in the right hand to the left hand. He concluded that the pursuer has been left with a hand with 50% less strength than his non dominant left hand. His report records "... I don't think that there is any evidence that he was malingering or trying to unduly increase his discomfort or weakness." On being shown surveillance footage lodged by the defenders (No 7/7 of process) the witness did not consider anything in it to be inconsistent with his clinical findings.

[27] Under cross examination, Mr Wigderowitz confirmed that while he had published articles on a variety of aspects of lower and upper limb surgery, his surgical practice was all in the field of upper limb surgery. He agreed that when he first met the pursuer he had not had sight of any of the medical records and had relied on the information given to him by the pursuer. When shown some of the records (eg page 37 of No 7/1 of process) Mr Wigderowitz agreed that it appeared that the pursuer had failed to attend for follow up appointments and agreed that he should have attended. On being shown the Occupational therapy records (page 10 of No 6/7 of Process), he agreed that the pursuer's failure to wear a compression glove provided to him could have led to increased stiffness and fibrosis. He accepted that his observation that the pursuer had callousing on both hands could amount to objective information about the extent to which he uses both his right and left hands. He agreed that the pursuer could make a good grip with his right hand, the only issue was the strength of that grip. Some guidance from a text on clinical examination by Foy & Fagg was put to him that indicated that metered grip strength measurements could be misleading and that it is better to make an assessment on clinical grounds. Mr Wigderowitz responded by reiterating that he could not dispute the volitional element when trying to assess a patient's grip strength. However, he said that no alternative method to the one he used has been shown to be better. It is impossible to detect with precision whether a patient is "faking" or not. He disagreed that a more reliable view could be formed by looking at the patient's day to day functioning, by assessing the arm muscles and the callousing in the hands. He accepted that he had relied on the pursuer's input on the issue of how long he could work with his right hand before feeling pain or discomfort. He described that fact as the "single most important" one in determining whether or not there had been full recovery. While there was no doubt that the pursuer could carry out a wide range of functions with his right hand, he considered that the comparison with the left hand was the crucial test.

[28] David Ross has been a consultant at Kings Park Hospital in Stirling since 1990. He has worked as an orthopaedic surgeon since the 1970's. He has a particular specialism in hand surgery. He too is a member of the British Society of Surgery to the Hand. He had prepared several reports and commentaries for this case. These are produced at Nos 7/2, 7/3, 7/29 and 7/36 of process. Mr Ross made a clear distinction between a medico legal assessment and a clinical examination. The mechanism of the injury was particularly important for the former, not so much for the latter. He had examined the X Rays taken at DGRI and having done so concluded that the injuries were at the lower end of fracture severity. For example, the wrist and thumb were not involved. When Mr Ross saw the pursuer in May 2010 (Report No 7/2 of process) Mr Smith told him that his right hand had improved significantly but was not yet quite back to its pre injury state. Mr Ross considered that to be a reasonable self assessment at the time. There was no complaint of persisting numbness in the right hand. Mr Ross considered at that time that the pursuer would regain full strength within a few months of May 2010. When Mr Ross saw the pursuer again on 28 February 2012 (No 7/36 of process) he measured his hand circumferences and his forearm circumferences. He found that the right forearm proximal third was slightly larger than its let equivalent. That was to be expected in the dominant arm. It was the forearm proximal third that controlled grip. If one hand was "out of action" or being used infrequently, the measurements would have been significantly different from those of the pursuer. In Mr Ross's opinion, the pursuer was likely to have made a complete functional recovery within three years of the date of the injury, leaving him with permanent but not troublesome scarring and some residual cold intolerance. He considered that the pursuer could continue his work as a fencer until normal retirement age and his recreational work with horses would not be affected. The pursuer told Mr Ross that he had not returned to his hobby of looking after horses since the accident. That was untrue.

[29] Mr Ross described the decision whether or not to measure grip strength using a dynamometer as a contentious issue. In his opinion measuring grip strength using such an instrument could have some value in a clinical setting, where it can be measured over a long period of time by the same examiner. In a medico legal context he considered it had no value as it was impossible to tell whether or not the patient was making an effort. Observation was a better method where there was a legal context. He had discussed this at conferences with leaders in the field at Derby and Nottingham. Mr Ross had reviewed the video surveillance of the pursuer and considered that the footage demonstrated that Mr Smith had normal hand function. His injury was not at the extreme end of the spectrum of hand injuries. The history and clinical findings were not indicative of any serious long term consequences.

[30] Under cross examination Mr Ross agreed that the pursuer's original injuries were more severe than their appearance in the X Ray suggested. He accepted that the pursuer had been cooperative at examination. He agreed that the only real difference between him and Mr Wigderowitz related to whether there remained a loss of grip strength. Mr Ross considered that it was easy to fake the grip strength readings on a dynamometer as the dial can be seen by the patient. He said he knew of no practising hand surgeon who would confirm such a test was of value of a medico legal context, although when pressed he accepted that it could be described as of some limited value rather than no value at all. He had overlooked measuring the pursuer's forearms when he saw him in 2010 but had done so in 2012. He considered that the circumference of the forearm was highly relevant because it controls grip.

[31] In my view, the evidence of Mr Wigderowitz and Mr Ross simply highlighted that there is no satisfactory way of measuring grip strength objectively. Mr Wigderowitz had no reason to doubt the pursuer or to question his motivation. He knew nothing of the pursuer's tendency to give answers that best suit his purpose with a view to financial gain. He had not seen the medical records when he first saw the pursuer and he formed the view from the description given to him that this was an injury from which even a young fit man like the pursuer would be unlikely to recover fully. Having considered the expert evidence carefully, I have reached the view that measuring grip strength using a dynamometer where that strength is a contentious issue is not a reliable tool and certainly cannot be used in isolation from clinical findings and other available material. In this case I have had the benefit of material about the way in which the pursuer behaves when making claims for state benefits and for insurance that was not available to the expert witnesses. The pursuer's primary complaint when examined was not been of a loss of grip strength and he was observed in July 2009 in the surveillance footage carrying out a variety of tasks with his right hand without any difficulty. In direct contradiction to what he told Mr Ross, the pursuer is seen tending horses and handling their reins with ease. As Mr Ross found, there is nothing in his physical appearance when measured that is suggestive of his using his right arm and hand less than his left. It is noteworthy that grip strength comes largely from the muscles in the forearm. It was not suggested that the pursuer suffers from any weakness in his right forearm. He has been actively engaged in fairly heavy manual labour since a few weeks after the accident. As is evident when considering wage loss, any periods of inactivity in his business appear to be completely unrelated to any ongoing physical weakness. In the circumstances I have not attached any weight to the grip strength tests in reaching a conclusion on the extent of the pursuer's recovery. The pursuer himself in evidence made no complaint of feeling that his grip was weakened, he alleged that he was in pain after working with his right hand. I accept the opinion of Mr Ross that in terms of the use and strength of his hand the pursuer effectively made a full recovery from his injuries within three years of the accident. He is of course left with some numbness and a cold sensation at times and has permanent scarring.

[32] Accordingly, I consider the physical consequences of the pursuer's accident to have been (i) significant pain and suffering from the crush injury to the right hand for about six weeks (ii) a complete functional recovery within three years of the date of the accident but with (iii) occasional residual cold intolerance and paraesthesia in his right hand. In addressing the issue of solatium both Counsel relied on The Judicial Studies Board Guidelines in making submissions about an appropriate level of award. The Pursuer contended that the pursuer's injuries fell within chapter 6(1)(e) (£19.000-£40,650) or, at the very least the top end of chapter 6(1)(f) (£9,500 - £19,000). He sought a total award of £30,000 under this head, with two thirds attributable to the past. For the Defender it was suggested that the pursuer's injuries fell more neatly within chapter 6(1)(g) (£4,100 - £8,700), being described as a moderate hand injury, which could include crush injuries, rather than chapter 6(1)(f) which would be appropriate only had the pursuer been left with significantly impaired function. Both Counsel referred to case law. This included Graham v The Ubiquitous Chip 1999 Rep LR 75, Peterkins v Market Rasen Racecourse Limited (Kemp & Kemp)for the Pursuer and Rennicks v Bison Concrete Limited 1988 SLT 343, Marshall v Bertrams Limited 1985 SLT 80, Green v Northern Foods plc (Kemp & Kemp, G8-019) 1997, Nicholson v British Coal Corporation 1989 SLT 360 and Stewart v Greater Glasgow Health Board 1992 SLT 668. While I consider the level of solatium suggested for the pursuer to be overstated in light of the conclusion I have reached on the medical evidence, some of the comparisons suggested by the Defenders were of cases where the initial injury was a little less severe than that suffered by the pursuer in this case. This was a serious accident and the injury was to the pursuer's dominant hand. The pain was acute initially and while the pursuer has made a very good recovery, Mr Ross accepted in 2010 that it was reasonable for him to report at that time that his hand was not back to its pre injury state. In all the circumstances I consider that a fair assessment of the pursuer's claim for solatium is £8,000, all attributable to the past.

Past Loss of Earnings

[33] The pursuer sought to prove that he had lost earnings in the period between the accident in 2008 and the proof in 2012. Although he was back working within a few weeks of the accident, his case on record is that he required to use subcontractors to undertake some of his work. A considerable amount of time at proof was taken up with this aspect of the case. In addition to the pursuer himself evidence was led in his case from Barry Russell, Cairn Smith and William Smith, all of whom had carried out work as subcontractors for the pursuer at various times. No clear picture emerged of there being any relationship between the pursuer's injuries and the employment of subcontractors. There was no evidence of the pursuer having to withdraw from contracts as a result of the accident or even of him requiring to use subcontractors instead of carrying out the work himself. All three men confirmed that they had worked together with the pursuer when he subcontracted. They gave figures different to those given by the pursuer to others about their rates of pay. In particular, Cairn Smith agreed that he was paid £12 per hour (£96 per day) and William Smith said he had not been paid an hourly rate, but received about £100 per day. The pursuer's claim to his expert witness was that they were paid £64 per day. Evidence in relation to the accounts of the pursuer's business over the relevant period was led from his accountant, Jim McEwan a partner in the firm of Finlaysons who have offices in Perth and Crieff. Mr McEwan assisted the pursuer by preparing accounts and completing the pursuer's tax return each year. The accounts he prepared were simple unaudited accounts and he relied on the information given to him by the pursuer. It became apparent that the pursuer was a poor record keeper and that there were examples of his having produced receipts for items that might not strictly have been business expenses. It is also noteworthy that there was no noticeable change to the motor vehicle expenses during a period of disqualification from driving. In any event, the evidence about the pursuer's earnings from his business over a seven year period commencing 6 April 2005 can be summarised as follows:

Year to 5 April 2006 - Income £26,397, net pre tax profit £23,429

Year to 5 April 2007 - Income £38,212, net pre tax profit £31,329

Year to 5 April 2008 - Income £27,375, net pre tax profit £ 20,782

Year to 5 April 2009 - Income £39,115, net pre tax profit £20,737

Year to 5 April 2010 - Income £21,408, net pre tax profit £8,589

Year to 5 April 2011 - Income £26,441, net pre tax profit £6,736

Year to 5 April 2012 - Income £18,823, net pre tax profit £7,598

In each of these years, the Income figure represents turnover and the net pre tax profit figure is achieved by deducting all allowable business expenses from that turnover. The relevant accounts form Nos 6/9, 6/11,6/13, 6/35, 6/37 and 6/39. As the pursuer had failed to give his accountant information in time for accounts for the period 5 April 2009 to be submitted, 6/35 represents accounts for both the year to 5 April 2009 and to 5 April 2010. There were some discrepancies in the paperwork but Mr McEwan had done his best using the bank statements, invoices and receipts provided to him. He was unaware of the pursuer becoming VAT registered until he was preparing the 2009-2010 accounts. The pursuer told him he was deregistering but he had not been involved in that. He prepared four VAT returns on behalf of the pursuer but he did not know whether the pursuer had submitted them.

[34] Peter Graham, a chartered accountant in practice as a partner in Begbies Trainer LLP, gave evidence as an expert witness for the pursuer. Mr Graham has extensive forensic accountancy experience, including the preparation of reports in court disputes. He had provided an initial report on the issue of loss of earnings (6/29 of process) but following the receipt of further information that had been superseded by two further reports (Nos 6/40 and 6/41 of process) to which he spoke in evidence. Peter Graham was instructed to proceed on the basis that the injury sustained by the pursuer on 11 March 2008 had limited his ability to perform his work as normal and had led to loss of profits (see para 2.4 of No 6/40 of process). In seeking to quantify that loss, Mr Graham identified the three years ending 5 April 2006, 2007 and 2008 years of "usual established trade" for the pursuer. He estimated that the pursuer would be available to work in his business for 217 days per year, the pursuer's account that he worked for eleven months of the year being clearly unrealistic given the nature of the business. He then estimated the value for a day's work by dividing known turnover by the number of trading days. His calculations initially appeared at paragraph 3.14 of his report No 6/40 of process. These were revised and the revised figures were lodged during his evidence in a document No 35 of process. Mr Graham took into account the position as given to him in relation to subcontracted labour. He took into account that 2007 was a year in which turnover had been high as a result of a particular contract with the Council. He gave alternative figures for loss, first on the basis that a typical pre accident year of trade was the average of 2006 and 2008 only and alternatively that a typical year would be the average of 2006, 2007 and 2008. He then looked at the period following the accident. He acknowledged that the year immediately following the accident was the most successful year for the pursuer's business in terms of turnover. He was told that was due to a lucrative contract involving Network Rail. He noted from the accounts that over £8,000 worth of sub contracted labour was used by the pursuer in that business year. He expressed the view that the pursuer's loss for 2009 would be the excess subcontractor labour required as a result of being physically unable through the physical consequences of the accident of being able to carry out all of the work himself. He concluded that the loss was within the range of £3,634 - £5,466 for that year. For the year to April 2010 Mr Graham took into account both the payment of sub contract labour and what he understood to be the pursuer's inability to secure more work than he could if fully fit. He calculated that to generate £18,302 of income (turnover less materials) at £116 per day required 158 days of effort. On the basis that the pursuer could work for 217 days if fully fit, the loss included (i) the cost of subcontractors (£2,581) and (ii) the days "lost" though being unfit, namely 59 days (217-158) x £116 per day (£6,844). However some account had to be taken of the recession which may have resulted in a downturn in available work anyway. Estimates of the effect of both a 5% and a 10% downturn were given. The ultimate effect was a range of possible values for "lost days" for 2010 of between £4,292 and £9,675 depending on the day rate and the percentage downturn (see table 7 in para 4.19 of No 6/40). Mr Graham was also asked to consider what loss might arise in 2011 and in future years. He spoke to his report No 6/41 of process in this regard. He noted that turnover was dropping in 2011 and 2012. He considered that the pursuer's loss for these years was the payments made to subcontractors, £2,272 and £1,802 respectively.

[35] Under cross examination Mr Graham agreed that the version of the accounts to 5 April 2008 he had used had included a deductable expense of £1,000 for subcontractors. On being shown No 6/13 of process, he accepted that if those were the final accounts, there had been no subcontractors paid that year. He agreed that he had relied on the pursuer for information about the subcontractors. If there was now different evidence of rates paid to subcontractors he accepted that would alter the figures. He had been told by the pursuer that he had paid £40 per day to Barry Russell and £64 per day to each of his father and brother. (In evidence the pursuer said he paid his father £13 per hour, which was reasonably consistent with the estimate of £100 per day given in evidence by his father). Peter Graham was aware of the different analysis made by Mr Bruce Graham, who had analysed the invoices of the business, Peter Graham had primarily used the accounts. He described Bruce Graham's approach as "bottom up" and his own as "top down". He considered that both methods were appropriate. In a ideal world, where the paperwork was in perfect order, the different approaches should lead to the same result. He accepted that his assessment of loss for the later years based on the employment of subcontractors was based on the premise that the subcontractors were there to assist a debilitated Mr Smith. He accepted that the figures used for subcontractors would require to be altered on the basis of evidence about the rates actually paid. One example put to him was that in the year to 5 April 2009, on the evidence that Cairn and William Smith were the sources of subcontracted labour and were paid £96 per day the figures would all be recalculated such that the excess subcontracted labour was 5 days rather than 59 on a reduced estimate of 286 manpower days (as opposed to 302) being required for that year's turnover (see paras 4.6 and 4.7of No 6/40 of process). Depending on whether the lower or upper estimate was used, this would reduce the loss for that year to between £320 and £2,016. Mr Graham also agreed that it was impossible to assess accurately whether or not the drop in the pursuer's turnover in later years was wholly attributable to the recession and its impact on the construction industry.

[36] Robert Bruce McLaren Graham, known as Bruce Graham, is a chartered accountant of vast experience and good standing in the profession in Scotland. He was until 2001 a partner in Price Waterhouse Coopers having previously been a partner in Coopers & Lybrand. Since 2001 he has worked on his own account providing expert reports and giving evidence in various types of litigation. He and Peter Graham have known each other professionally for many years. Bruce Graham prepared two reports for the assistance of the court in this case, Nos 7/23 and 7/40 of process. He spoke to those reports in evidence. Mr Graham examined the invoices rendered by the pursuer. He noticed in particular that in the year to 5 April 2009 the sums invoiced amounted to £46,681, more than £7,500 higher than the figure for income in the accounts for that year of £39,115. While some of the difference might be explained by one of the customers going into liquidation (with a possible consequence of non payment), the decision not to include the higher figure in the accounts meant that the level of activity of the business was not fully illustrated by those accounts. After examining the primary material behind the accounts, Mr Graham had noticed that the pursuer's business had lost its two primary sources of business during the year 2009 - 2010, namely Lumberjax Environmental Limited (the Network Rail contract) and Torrance Building Services Limited. Lumberjax went into liquidation on 26 June 2009. Mr Graham noted also that no invoices at all had been rendered by the pursuer for 6 of the 12 months in the business year to April 2012, namely April, June, July, August, September 2009 and January 2010. On the basis of all of the information available to him Bruce Graham concluded that there was nothing to support the contention that the pursuer required to "employ" subcontractors to carry out work he was unable to do. The network rail contract was sufficiently large that assistance was required from his father and brother to complete it (see the account given by the pursuer to that effect at No 6/8 of process) but there were months when he performed significant levels of the work without such assistance. In 2010 the pursuer appeared to have carried out most of the work himself without subcontractors. In light of the very significant increase in the turnover of the business in 2009, Mr Graham could not see the basis for the contention that business was lost as a result of the accident and the pursuer's injury. There was no vouching to support an argument that the business would have done even better than it did in 2008 but for the pursuer's accident. Bruce Graham had seen the report of Peter Graham, who he considered had taken a more "theoretical" approach to any possible loss. Peter Graham had made assumptions (i) that the turnover stated in the accounts was accurate, (ii) that the pursuer would work a fixed amount of 217 days per year and (iii) that there was a relationship between the use of subcontractors and the pursuer's injuries, albeit a relationship that was not explored. For Peter Graham's approach to be accepted those three assumptions required to be correct. Bruce Graham challenged each of those assumptions. He considered that calculating the worth of a man hour on the basis of turnover in the accounts when the sums invoiced were different was erroneous. Even if some invoices later had to be written off as a bad debt, they were part of a calculation of the "man hour rate" of the business. Secondly, the working days would not be the same in each year, the availability of work was an important variable. Thirdly, the approach to subcontractors ignored the extent to which subcontractors were employed simply because the job required it. It was clear from the invoices of the subcontractors that they were not employed in every month, but just when a contract required it. In January 2009 Mr Smith rendered invoices of £11,314 but there appeared to be no subcontractors working at that time. The paperwork showed no regular ongoing use of subcontractors. Further, it was noteworthy that the level of business picked up a little in 2011 to a level close to 2008. Looking at maters broadly it was reasonable to assume that the factors resulting in the pursuer earnings less from 2010 onwards were the liquidation of Lumberjax and the recession. There was nothing to support a conclusion that any ongoing loss was attributable to the pursuer's accident in 2008. There was no basis for the selection by Peter Graham of 5% and 10% as representative of the downturn attributable to the recession.

[37] Under cross examination it was suggested to Bruce Graham that while there were difference in methodology between him and Peter Graham, both approaches were appropriate, it was a matter of choice. He responded that as Peter Graham's approach was based on assumptions, one required to test those assumptions. There was an absence of vouching for some of the assumptions made by Peter Graham. While his approach was theoretically valid, it didn't assist in this case because the facts did not appear to support the conclusion. Had all of the paperwork been available to show the extent (if any) to which subcontractors were used as a result of the accident, there would have been no need to use the theoretical construct adopted by Peter Graham. Bruce Graham agreed that he too had made one or two general assumptions, for example in relation to the recession having an impact on the pursuer's business, but he considered that was a reasonable assumption on the known facts.

[38] Having considered the evidence of the lay and expert witnesses, I have reached the conclusion that the pursuer has failed to establish any more than 6- 8 weeks loss of earnings immediately following the accident. There is no dispute that the pursuer's best year of trading took place in the business year that commenced a few weeks after the accident. During that year (to 5 April 2009) the pursuer worked alone for periods when he invoiced significant amounts (eg December 2008 and January 2009). He used subcontractors in some other months, primarily where he was fulfilling the considerable demands of the large Network Rail contract. I accept the evidence of Bruce Graham in it's entirely. In preferring his conclusion to that of Peter Graham I intend no criticism of Peter Graham's approach at all. It seems to me that he did the best he could on incomplete and at times completely inaccurate information. He was instructed to proceed on an assumption that that the injury sustained by the pursuer on 11 March 2008 had limited his ability to perform his work as normal and had led to loss of profits. He was entitled to proceed on the basis of that instruction. He was given the accounts of the business and used those to calculate the loss that he was led to believe had arisen through the pursuer's requirement to use subcontractors more than he would have done but for the accident. The method he used may well have worked had the underlying information been accurate. However, I do not accept the pursuer has shown that his business activities were curtailed as a result of the accident for anything more than eight weeks. He was back at work full time in mid May 2008. He was released from that contract at the end of May because of his failure to turn up on site. His position in evidence was that he had failed to turn up once. There was no suggestion that his failure was related to any inability to work. Thereafter it seems that the pursuer enjoyed a successful year to April 2009, with no evidence to support a contention that his business would have been even more successful but for the accident. He was fit for work and while I have accepted that he had some residual pain and that his right hand was not completely recovered for some time following the accident, there is simply no material on which I can conclude that there was a relationship between that and his earnings. There was no evidence of contracts that could not be pursued due to his being less than one hundred per cent recovered and there was no information about contracts pursued but not awarded for that reason. The invoices of the subcontractors do not support any pattern of their increased use due to injury. More recently the pursuer has acquired another post driver machine to assist his work but I do not accept that he has done so because of any inability to carry out the work manually. He did not acquire a new machine during the period of greatest turnover following the accident. The pursuer's earnings have dropped since 2009. He accepted in evidence that by 2009 the only significant issue with his right hand that might have affected his work was the cold or numb sensation in the mornings which he could improve with heated packs. In the summer of 2009 the pursuer did not render any invoices for four consecutive months. It was during that period that he was observed carrying out a number of activities including tending to horses. At the end of that period he sought job seekers allowance on the basis that he had no work. His best source of work, Lumberjax, went into liquidation in June 2009. These factors all support a conclusion that the reduction in the pursuer's income was not attributable to any incapacity or disability but to economic factors. In all the circumstances I assess his loss of earnings as a result of the accident at £2,800. I do so having regard to the average level of net pre tax profits he was making in 2008 and 2009 and taking an amount equivalent to two months pre tax profit less a deduction for tax. On the evidence I consider that to be the only period when it was established that the pursuer lost earnings as a result of the accident. It is clear from the evidence that he had sufficient work at the time of the accident to be fully engaged in his business. His counsel made a suggestion that he had returned to work earlier than was advisable given the injury he sustained and I accept that he appears to have been keen to be back to business as soon as possible, consistent with his being a self employed individual. However, there is no evidence to suggest that his early return to work impeded his recovery or that he was unable to carry out his work effectively at that time. Counsel for the defender submitted that the pursuer had not sustained any wage loss after the accident because of payments he had made to himself from his business account. I reject that contention. As a sole trader, any money in his business account between 11 March and mid May 2008 must have been accumulated prior to the accident or at least related to work carried out prior to the accident. In my view there was a two month period when the pursuer earned nothing as a result of the accident and that but for that accident he would have been working full time.

Future Loss of Earnings/ Loss of Employability

[39] It will be apparent from the views already expressed that I do not consider the pursuer to be at a disadvantage as a result of the injury which he sustained but from which he has now fully recovered. There was no acceptable evidence upon which to base an award for future loss of earnings or for a loss of employability award. While evidence was led from Gordon Cameron, a vocational consultant about this matter, the report he prepared for the court (No 6/16 of process) was ultimately of little use as it relied on various statements made by the pursuer to a Derek Grant, a witness the pursuer did not call. The information given to Mr Grant was wrong in a number of respects, particularly in relation to whether or not the pursuer had a full time employee. Further Mr Cameron had not been made aware of the defender's medical evidence. He had proceeded on the basis that the pursuer had only 50% of his previous grip strength in his right hand. Quite properly Mr Cameron accepted it was a matter for medical opinion whether or not the pursuer was capable of continuing with his current work. He had not been asked to consider what types of heavy manual labour might be available to the pursuer as he had proceeded on the basis of the information given to him to the effect that the pursuer would not be able to carry out heavy manual labour at all. In any event the alternative work Mr Cameron considered would be available to the pursuer (see para 2.7 of No 6/16 of process) would earn him more than his business has provided for him during the years to April 2011 and April 2012. In submissions for the pursuer it was accepted that Mr Cameron had been faced with a difficult task in trying to predict what the future might hold for the pursuer given that his current business seems no longer economically viable. It was accepted that an award for future loss of earnings or loss of employability would be appropriate only if the pursuer's medical evidence was accepted. For the reasons given I have preferred the defender's medical evidence. Like Peter Graham, Mr Cameron did the best he could with the material available to him and on the basis of the assumptions he was asked to make. I have not relied on his evidence simply because it did not assist given the conclusions I have reached in relation to the medical evidence and the reasons for the pursuer's recent drop in earnings. Counsel for the pursuer sought an award of between £27,150 and £42,052 under this head. Had I been persuaded that the pursuer was disadvantaged on the labour market as a result of the accident, I would have been minded to make a more modest award of £15,000.

Services

[40] The pursuer sought an award in respect of services provided by his parents and by his girlfriend Jenna Black. While his parents gave slightly differing accounts of the period of time during which the pursuer required assistance with lifting things and with cooking and laundry, I accept that these differences arise from honest recollections differing after a period of some years and they do not detract from the credibility of those witnesses. It seems that the pursuer required the assistance referred to for a period of up to six weeks. His mother also provided some emotional support in the week or two immediately after the pursuer was discharged form hospital. His father tended to the horses on his behalf. Jenna Black provided assistance in bathing the pursuer and cleaning his house. However, both she and the pursuer confirmed that they were not living together as a couple in their own home until quite some time after 2008. Ms Black was living with her parents at the time of the pursuer's accident. Accordingly, the assistance she provided does not qualify for an award - see Administration of Justice Act, s.13(1) and Lawrie v Lanarkshire Health Board 1994 SLT 633. Counsel for the Pursuer submitted under reference to Mitchell v Inverclyde District Council 1998 SLT 1157 that it was appropriate to take a broad view in assessing an award for services. While I agree with that general proposition, the Mitchell case does not assist the pursuer with the contention that Jenna Black should be treated as a relative in this context. I consider the appropriate award for services is £300 for the contribution of each parent.

Decision

[41] For all of the reasons given, I consider that the defenders are liable to the pursuer in this case, but with a finding of contributory negligence of 50%. The damages award on a full liability basis of £8,000 for solatium, £2,800 for past wage loss and £600 for services amounts to £11,400. Applying interest at half the judicial rate from the date of the accident to the date of decree increases that sum to £13,528. The total falls to be reduced by 50% for the pursuer's contributory negligence.

Disposal

[42] I shall pronounce decree against the defenders for payment to the pursuer of £6,764, inclusive of interest to date. I shall reserve all questions of expenses meantime.