Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 90
PD125/11	OPINION OF LORD DOHERTY in the cause DUNCAN McDOUGALL Pursuer; against (First) EMTEC BUILDING SERVICES LIMITED and (Second) CLARK CONTRACTS LIMITED Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Hastie; Digby Brown LLP

First Defenders: Batchelor, Solicitor Advocate; Simpson & Marwick

29 May 2012

Introduction
[1] The pursuer is now aged 57. He was formerly employed by the first defenders as a plumber. In this action he seeks reparation from them for loss, injury and damage he avers has been caused as a result of an incident which occurred while he was working in the course of his employment with them at Castlehead High School, Paisley on 1 February 2008. The case came before me for proof. (The pursuer had also sued the second defenders ("Clark"), the main contractors in respect of construction work being carried out at the school, but they were assoilzied shortly before the proof diet).

The pleadings
[2] The pursuer avers:

"Cond. 4 At or about 2 p.m. on Friday 1^st February 2008, the pursuer was working in the course of his employment with the first defenders at Castlehead High School in Paisley. The school was being completely refurbished. The second defenders were the principal contractors. The first defenders were engaged to carry out pipework. In particular, the first defenders were instructed to fit supply pipes to the classroom walls. The pursuer was instructed to carry out re-fitting work in the science laboratory classrooms by the first defenders. There were units fitted around the walls of the classrooms. The framework and tops of the units had been left in place. The framework was fitted to the walls. The doors had been removed and were to be replaced. There were single and double units. Single units were approximately 18 inches - 2 feet wide by 2 ^1/2 - 3 feet high. Double units were the same height but twice the width. The pipes required to be fitted at heights of between 10 and 14 inches from the floor. The pipes work (sic) ran along the walls through the framework of the units. The pursuer required to use a gas torch to melt flux and solder into the joints of the pipes. He required to place his head close to the area of welding to ensure that the flux was running. To enable him to do so the pursuer required to get as much of his body into the framework of the units as he could to enable him to get as close as possible to the pipes. Space was restricted. It was very awkward to manoeuvre his body into the framework and very cramped while in there. Prior to the 1^st February the difficulties in manoeuvring within the framework had been reported to Dougie Tawse, a foreman on site. No alternative means of carrying out the work was put in place. By virtue of Architect's Instruction dated 25^th October 2007 it was provided that the shelving and the backs of the units within the classrooms were to be removed to facilitate removal of existing pipe-work behind those units. The first defenders intimated to the second defenders that in view of that that (sic) instruction made it difficult to remove and renew the existing pipe-work. As a result the second defenders approached the client (Renfrewshire Council) in consequence of which a fresh Architect's Instruction was issued on 28^th November 2007. In terms of that Instruction the whole units were to be removed to enable the Mechanical & Electrical work (including the pipe-work being carried out by the first defender's employees) to be carried out. The second defenders were responsible for removal of the units. The units were to be stored for re-use. Storage space was limited. Units were to be removed as and when required. The first defenders were responsible for informing the second defenders where they were working so the units could be removed from a classroom or classrooms before employees of the first defenders started working there. The first defenders did not inform the second defenders that they were working in the classroom in which the pursuer was injured. As a result the units were not removed. In any event the first defenders put the pursuer in to work in a classroom where they knew or ought to have known the units had, contrary to Architect's Instruction of 28^th November 2007, not been removed. The pursuer is right handed. As the pursuer was working with his blowtorch, his head and neck were twisted towards the area where he was working. Suddenly the pursuer felt pain in his neck. He was unable to continue working. He attempted to report the incident to both defenders but the site office of each was unstaffed at the time, the staff having left for the day. Following the pursuer's incident, the whole of the units within the classrooms were removed to allow access to the pipes. This was in accordance with the Architect's Instruction dated 28^th November 2007 ... (T)he pursuer attended his work approximately 2-3 weeks after the incident and reported it to Joe Workman...

Cond. 5 As a result of the accident, the pursuer sustained loss, injury and damage. Following the incident he began to experience paraesthesia. He felt pain in his neck and in his back and had pins and needles in his left arm. Two days later he attended the accident and emergency department of Hairmyres Hospital... complaining of chest, neck and arm pain. He thought he was suffering a stroke. The pain was diagnosed as musculoskeletal pain... He has continued to suffer from pain in his neck, left arm, and left hand and fingers. He suffers pins and needles in his fingers. His neck movement has been restricted. As a result of the incident at work on 1^st February 2008 the pursuer suffered an aggravation of an underlying cervical spondylosis of the neck with nerve root irritation into the left arm. The incident accelerated the onset of symptoms by up to one year... As a result of the accident the pursuer has been unable to return to work. He has lost earnings. Following the incident the pursuer's daughter Kerry-Anne provided assistance to him (including dressing, tying shoelaces and bathing) and undertook domestic duties, including cooking and housework ...The pursuer's heads of claim are (i) solatium (ii) past loss of earnings and (iii) past necessary and personal services..."

The evidence
[3] In terms of a Joint Minute of Agreement it was agreed that at the material time the pursuer was working in the course of his employment with the first defenders as a plumber at Castlehead High School; that the school was being refurbished; that it was a construction site within the meaning of the Construction (Design and Management) Regulations 2007; that the first defenders were contractors carrying out construction work in terms of Regulation 25; that the pursuer was a person carrying out construction work under the control of the first defenders in terms of Regulation 25; and that the first defenders were bound to comply with the requirements of Regulation 26.

[4] The pursuer stated that prior to 1 February 2008 he had had no problems with his neck. He had suffered from chronic low back pain for many years before 2001 which had prevented him working. This had stopped troubling him (the last occasion he had attended his G.P. in relation to low back pain had been in 2005) and he had been back working for about two years prior to 2008. He had worked for the first defenders since October 2007. He was puzzled by an entry in his G.P. records dated 5 October 2007 which included the words "cervical spondylosis". He had not complained at that time to his GP about any neck symptoms - he had not had any. When he had begun working in the science classrooms he had asked his foreman, Dougie Tawse, why the units were not completely stripped out before the pipefitting was done. This had not been a complaint - he had made the inquiry because it appeared to him that the units were scrap. Mr Tawse had said that they were not being stripped out because they were being kept. The pursuer had not been given a method statement for this work. On Friday 1 February 2008 he was in a science classroom welding pipe fittings together. The tops and doors of units along the walls of the science classroom had been removed leaving the framework of the units and solid side spacers. The units were about 800-900 mm high and about 500 mm deep. Some were about 500-600 mm wide (single) and others were about 1 metre wide (double). The pipe fittings he was welding had been fed in at the back of the units and fixed to the wall with clips. They were about 16 inches off the floor and about 1^1/2 - 2 inches from the wall. The pursuer had solder wire in his left hand and a small burner in his right hand. He eased his upper body into a single unit. He was crouching sideways resting his left shoulder on the classroom wall with his left buttock on the base of the unit. His legs were outside the unit. He started to heat the joints of a pipework T-piece. In order to be sure that the joint was properly sealed he had to turn his head to the right so that he could look down on to the top of the fitting with his left eye and see that the solder was running right round the circumference of the fitting. That entailed his neck and body being twisted. He was about 5 feet 10 inches tall and about 12^1/2 - 13 stones in weight. As he was in that position looking down on the fitting he felt a sharp pain and let out a scream. He described it as "a shock right down the left hand side of my neck, left arm and left hand side" and as "an excruciating pain down my left side - I wasn't too sure at the time what had gone." Patrick Nixon and Colin Johnston came to see what had happened. In examination-in-chief the pursuer's account of the exchange between them was "All I could say to them was I've done something to my neck and my back. I wasn't too sure which part of it it was." A little later he said "They said to me 'Did you burn yourself?' I said "No - my neck or my back has went"". Nixon and Johnston helped the pursuer down to his car. They passed the first defenders' office and Clark's office but he saw no-one there. He didn't go into either office. He didn't think his injury was worth reporting. He thought it was just a sprain which would clear up. When he arrived home he told his wife he'd "twisted my neck or my back at work". He had had pain in his neck and his left arm that night. Pins and needles down the left side of the body had begun the next day. He developed left sided chest pains. Things got worse the following day and on Monday 4 February 2008 he was admitted to the Accident and Emergency Department at Hairmyres Hospital. He maintained that he had told the nurse and doctor who had attended to him that the pain had begun when he had jerked himself at work on 1 February. On examination he was found to have pain on the left side of the neck on palpation and pain on movement of his left shoulder. He underwent tests to exclude the possibility of heart disease. He was discharged on 5 February 2008. Thereafter he attended his G.P. and was given sick lines for his chest pain. On 8 February 2008 he submitted a form claiming statutory sick pay in which he declared that his sickness was not caused by an accident at work or an industrial disease, that it commenced on 4 February 2008, and gave as details of his sickness "I was admitted to Hairmyres Hospital with severe chest pains. I was released after 2 days with medication and told to rest." He believed that his wife probably filled in the form for him - that had been their practice. The first occasion when there is reference in any medical records to the incident at work was when the pursuer attended Ms Kirsten Lewis, a physiotherapist at Hairmyres Hospital. The pursuer stated that Ms Lewis had put him through a number of tests and had asked him about his work. He recalled that she had raised the possibility that his condition may have stemmed from what he had being doing at work. It had only been at that point he had made the connection between his symptoms and the incident. He maintained that following the attendance with Ms Lewis, Joseph Workman, a director of the first defenders, had asked to see him. He had gone to the first defenders' offices and had told Mr Workman that he believed his condition had been caused by working in the units. The pursuer has not worked since the incident. He was made redundant by the first defenders on 23 February 2009. Since the incident he had been rendered necessary services for about two or three hours a day by his daughter. She had helped with cooking and did housework for him. He had been unable to do gardening or DIY. He spent most of his time in the house. His solicitors intimated a claim against the first defenders by letter dated 21 April 2009.

[5] Patrick Nixon worked as a plumber alongside the pursuer at the material time. He described the units as being very awkward to work in. He climbed right inside them (both legs inside). He then knelt down - either on one knee or on both knees - to weld the pipework. He advised that it was necessary to get right in next to the fitting so as to be able to see the solder was all the way round the joint. He said that his neck had to be twisted to see the back of the fitting. He had mentioned to Mr Tawse that the job was awkward with the units still in situ. He thought that the main contractors had told Mr Tawse that the units were to stay. He spoke to hearing the pursuer scream on 1 February 2008. At the time he was working in a classroom which was directly across from the classroom in which the pursuer was working. When he went in the pursuer was standing up inside the unit, "half kind of stooped". He had said "My f**cking back". Someone else had also come in to the classroom. They had got the pursuer out of the unit with great difficulty and had taken him downstairs to the first defenders' office but it was locked and no-one was there. Shortly after the incident the unit frames were removed from the science classrooms by the main contractors. In cross-examination Mr Nixon denied that he and the pursuer had signed out of a site early in January 2008, that they had claimed for time they had not worked, and had been docked 1 hour's wages as a result.

[6] Colin Johnston worked for the first defenders as a heating engineer at the material time. He recalled a shout and a squeal from a classroom near him: "Arghh - my f**ing back". When he went to investigate he found the pursuer "hanging out of" a unit - his hands were inside it and his legs were outside it. He and Mr Nixon assisted the pursuer to his car - Mr Johnston carried the pursuer's toolbox. Mr Nixon went to the first defender's office but it was shut. Mr Johnston thought that the following Monday he mentioned to Mr Tawse that the pursuer had hurt himself on the Friday. It had just been an offhand mention - not the reporting of an accident.

[7] Gordon Mackenzie worked as a Health and Safety Manager with Clark, the main contractors. The first defenders were subcontractors providing mechanical, electrical, heating and plumbing services. Mr Mackenzie explained that the first defenders had approached Clark's project team to advise provision would need to be made to enable the first defenders to obtain access behind units in the domestic science and science classrooms so that existing services pipes could be removed and new pipes installed. Since this would involve additional cost it was necessary for Clark to obtain Renfrewshire Council's instructions. In terms of the contract between Clark and the Council, when verbal instructions were given by the Council Clark would issue a written confirmation of verbal instruction. If that was not challenged within seven days the confirmation of verbal instruction became a contract document. Thereafter the Council's architect would issue an Architect's Instruction to Clark formally instructing that the work be done. If the additional work instructed was to be performed by a subcontractor the Architect's Instruction would be issued to it by Clark with a covering letter. Here there had been an initial verbal instruction to remove worktops, doors, shelving and backs of the units in the domestic science and science classrooms which had been followed up by a Confirmation of Verbal Instruction CVI 9 dated 25 October 2007. Later, it had been found that removal of old services and installation of new services was difficult with the remainder of the units in situ. In particular there was concern that in order to thread the new pipework in behind the units it would be necessary to use shorter pipe lengths with an increased number of joints. The Council had not considered that to be acceptable. It had issued a verbal instruction to remove the units. This had been confirmed by Confirmation of Verbal Instruction CVI 21 dated 19 November 2007. In each case the additional work was carried out by Clark. The formal Architect's Instruction, AI2, which included the work referred to in CVI 9 and CVI 21, bore the date 28 November 2007 but contained several entries which related to CVIs dated after that date. It was signed on 29 January 2008 but had not been received by Clark until 31 January 2008. Some time following its receipt a copy would have been provided to the first defenders. Mr Mackenzie indicated that from his inquiries with his project team he understood that these matters, including the work covered by CVI 9 and CVI 21, were the subject of discussion with representatives of the first defenders as they occurred, at technical and progress meetings. He confirmed that prior to the first defenders commencing work on site they would have provided methods statements to Clark.

[8] Mr Randle, an ergonomist, had been instructed by the pursuer's solicitors to provide a "Preliminary Report". In that report he had assumed, in the absence of indication to the contrary, that the pursuer had been kneeling within the carcass of a unit at the material time. When the account given by the pursuer in evidence was put to him he observed that it appeared the pursuer had had to adopt a very awkward posture in a very constrained working space. Bracing himself against the structure and the wall would have produced forces acting against his body. In his opinion it was the sort of work task which an employer should have assessed for risk of musculo-skeletal injury. Such injury appeared to have been a potential hazard in the circumstances. Consideration ought to have been given to whether it could have been eliminated. In his view the posture which the pursuer adopted gave rise to a foreseeable risk of injury. Musculo-skeletal injuries were among the most prevalent of industrial injuries. The fact that the carcasses were removed following the incident showed that it would have been possible to eliminate the risk of musculo-skeletal injury which arose because of the constrained working space.

[9] Mr Periasamy is a Consultant Orthopaedic Surgeon at Hairmyres Hospital. His predecessor had seen the pursuer when he attended in February 2008, and Ms. Lewis had seen him subsequently when he attended on 8 August 2008. He himself had examined the pursuer on 27 May 2010. The pursuer told him that he had been fitting pipes underneath a cupboard cabinet. The history Mr Periasamy had noted from the pursuer was that as he was coming out from underneath the unit he had turned his neck sharply. He had felt pain down the left side of his neck. There had been a clear link between the onset of pain and the sharp turn. On the basis of that history and his examination his opinion was that the incident had triggered the onset of symptoms of cervical spondylosis and nerve root irritation of the upper left arm, and that the pursuer's pain was mostly related to cervical spondylosis. It was possible that the symptoms had come on spontaneously, but the history of a sharp turn producing their onset suggested otherwise. When in cross-examination the pursuer's account that he had held his neck in one position for about two minutes was put to Mr Periasamy he made clear that his opinion was premised on the pursuer having made a sharp turn of his neck: he did not consider the pursuer holding his neck in one position for two minutes would have been likely to trigger the neck symptoms he had complained of. He restated this in re-examination, and indicated that there was more than a 50 per cent chance that the pursuer's symptoms emerged spontaneously.

[10] Mr Angus MacLean is a Consultant Trauma and Orthopaedic Surgeon at Glasgow Royal Infirmary. He gave his evidence on commission prior to the proof. He examined the pursuer on 15 August 2011. His account to him of the incident was that he was working in enclosed/ awkward spaces under sink carcasses where he had to twist himself/posture awkwardly to see the area of work. While doing so he felt a sudden sharp pain to the left side of his neck which radiated into his left arm. Mr MacLean's diagnosis was that the pursuer had underlying cervical spondylosis with nerve root irritation into the left upper arm which became symptomatic because of the awkward/twisting working practices he had been engaged in when he felt the pain. The incident had simply rendered the condition symptomatic sooner than would have been the case had it progressed naturally, "by anything up to a year".

[11] Dr C.S. Nair had been the pursuer's G.P. for nearly ten years. He had made the entry of 5 October 2007 but had no recollection of the consultation. He thought it very unlikely that he would have written "cervical spondylosis" if the pursuer had not mentioned his neck. The pursuer had presented with pain in, and nodules on, his hand. Given the complaint of pain in the hand it would not have surprised Dr Nair if he had asked the pursuer if he had any pain in his neck. However, any neck symptoms the pursuer spoke to were likely to have been minor because Dr Nair had not gone on to note any abnormalities and no further investigations appear to have been thought necessary.

[12] Joseph Workman gave evidence that the pursuer requested a meeting with him about a week or two after he had gone off work. A colleague of the pursuer had been paid off for poor performance and non‑attendance. As some such concerns had been expressed about the pursuer, the pursuer had been anxious to assure Mr Workman that there would be no recurrence of problems anent timekeeping or productivity when he returned. At no point during that meeting had the pursuer indicated that he had injured himself at work. Had he said that, Mr Workman would immediately have instigated the normal accident investigation procedure. He was clear that that was the only meeting he had had with the pursuer, and that there had not been a meeting in August 2008 after the pursuer had seen Ms. Lewis.

[13] Douglas Tawse, the first defenders' foreman plumber, stated that on 21 January 2008 the pursuer and Patrick Nixon had left site early without permission - between 5 p.m. and 5.30 p.m. - instead of 6 p.m. That evening Mr Tawse had telephoned the site engineer, Stephen Devlin, to discuss whether the employments of the pursuer and Mr Nixon should be continued. The following day he had had a brief chat with the pursuer and had told him he was only going to be paid until 4.30 p.m. for the previous day's work. The pursuer had then been absent on Friday 25 January, Monday 28 January and Tuesday 29 January. In relation to the science classrooms Mr Tawse indicated that he had asked Mr Devlin for the units to be removed to make the removal and installation of services easier. In cross-examination he accepted that it would have been easier and safer for the plumbers if the units had been removed. He wasn't aware until after 1 February 2008 of any instruction for removal of the units having been issued by the Council. He could not recall if the pursuer had asked him why the units were not removed before the plumbing work was done. In his view the work could be done safely with the carcasses in place. Plumbers often had to work in confined spaces. Welding of the joints could have been done from outside the carcasses. The task could have been carried out from a kneeling position. It was up to the individual plumber to find the position in which he felt most comfortable to do the work. While it was good plumbing practice to know that the joint was secure, it was not necessary to see the solder run all round the joint. All that was needed was to dab the joint with solder. If the dab melted the plumber knew that the temperature of the joint was hot enough to have melted the solder inside the fitting. The units had eventually been removed the week after the pursuer went off work. Mr Tawse recalled that there had been a first fix plumbing method statement. The work the pursuer had been doing was part of the first fix. All employees carrying out the first fix would have seen that statement. He did not recall Colin Johnston mentioning that the pursuer had hurt himself at work. Had Mr Johnston done that Mr Tawse would have raised it with Mr Devlin.

[14] Stephen Devlin has been the first defenders' project manager for the past seven years. Prior to that he had been a foreman heating engineer. He had prepared the method statement and risk assessment for the first fix plumbing works. Unfortunately these had been lost or destroyed before the pursuer's claim had been intimated. The risks of harm he had foreseen and considered included the risk of burning with the blowtorch and the risk of being cut when fixing the wall brackets. He had not foreseen that there might be a risk of musculo-skeletal injury and he had not considered it. If he had been assessing matters today, with hindsight, he would have to consider that risk. At the time he thought working in confined spaces was just a day-to-day plumbing occurrence. All the other plumbers had managed. He attended regular site meetings with the main contractors and the architect and went with them on the site walkabouts which followed such meetings. He did not think that CVI 21 related to the removal of the carcasses in the location where the pursuer had been working. Had it done Clark would have carried out the instruction long before 1 February 2008. He accepted that the plumbers' work would have been easier and safer had the carcasses been removed.

[15] Mr David Sherlock gave his evidence on commission prior to the proof. He was a consultant orthopaedic surgeon at the Southern General Hospital, Glasgow. He had examined the pursuer on 7 October 2011. The pursuer had told him that he had been working in a rather tight, awkward space. He had almost finished when he had felt a sudden pain in his neck radiating to his left arm. Mr Sherlock's diagnosis was that the pursuer had pre-existing degenerative changes in his neck and that his symptoms were attributable to this cervical spondylosis. The onset of symptoms was probably a natural and spontaneous development of that condition, and working in the awkward conditions the pursuer described was unlikely to have accelerated their onset. Even if it had, the acceleration of onset would have been very short - perhaps two weeks - because if acceleration had been triggered by the relatively low stresses caused by the activity the pursuer described, in the absence of that event another fairly ordinary work or other day-to-day stress would have been likely to trigger it.

[16] Kerry‑Anne McDougall, the pursuer's adult daughter, confirmed that following 1 February 2008 she had helped the pursuer dressing, bathing, getting in and out of the shower and bath, and with cooking and housework. She estimated that she spent about three hours each day doing these tasks.

The pursuer's submissions
[17] Mr Hastie asked me to accept the pursuer's evidence that he had injured his neck while carrying out the task he described. His account was supported by the evidence of Mr Nixon and Mr Johnston.

[18] Mr Hastie did not insist on the common law case which had been pled. He maintained that on the evidence I should find that the defenders were in breach of Regulations 26(2) and 26(4) of the Construction (Design and Management) Regulations 2007. He submitted that the risk of musculo-skeletal injury ought to have been foreseeable. In this context he relied upon the acceptance by Mr Tawse and Mr Devlin that it would have been safer had the units been removed prior to the work, and upon Mr Randle's evidence. Mr Devlin had taken an unduly narrow view of matters to be considered in the risk assessment. The pursuer's place of work had not been made safe. With regard to Reg. 26(4), the pursuer's place of work had not had sufficient working space and had not been so arranged that it was suitable for the pursuer working there (cf. Moohan v Glasgow City Council 2003 Rep LR 46 at paragraphs 27,29; Miller v Perth and Kinross Council 2002 Rep LR 22 at paragraph 14). In relation to both Reg. 26(2) and 26(4) the onus was on the first defenders to satisfy the court that it would not have been reasonably practicable to take steps to see that the units were removed before the pursuer commenced work in the classroom (Nimmo v Alexander Cowan & Sons 1968 S.C. (HL) 79). It had been reasonably practicable to make the pursuer's place of work safe, and to provide him with sufficient working space.

[19] Mr Hastie asked me to accept Mr MacLean's evidence that the awkward posture adopted by the pursuer accelerated the onset of symptoms of his cervical spondylosis and nerve root irritation by up to one year.

[20] In relation to quantum Mr Hastie suggested that solatium should be of the order of £5,000 (Badderley v Forsyth, Kemp & Kemp F2-021; Judicial Studies Board Guidelines (10^th ed.) moderate neck injuries, category 6(A)(b)(ii)). The whole sum should be attributed to the past with interest at 4 per cent. per annum from 1 February 2008 to date. Loss of earnings for the year following the accident was £16,125.57. Interest should run on that sum at 4 per cent per annum from 1 February 2008 to date. He suggested that I award £2,000 inclusive of interest to date for services.

The defenders' submissions
[21] Mr Batchelor proposed that I should find the pursuer not to be a credible or reliable witness on critical matters. I should not be satisfied that the incident which the pursuer described in evidence occurred. If I was satisfied it occurred I ought not to accept it caused onset of neck pain, nor should I be persuaded that it accelerated the onset of symptoms from the pursuer's pre-existing neck condition.

[22] Mr Batchelor submitted that on the evidence I should not find that the defenders had been in breach of Regulations 26(2) or 26(4). Safety was a relative concept which had to be judged according to the general knowledge and standards of the time, by reference to what might reasonably have been foreseen by a reasonable and prudent employer (Baker v Quantum Clothing [2011] 1 WLR 1003). There was, he maintained, no foreseeable risk of plumbers suffering musculo-skeletal injury from working in the unit carcasses. The space involved was no more confined than many others which plumbers required to work in during the course of their work. The periods during which the pursuer adopted the posture complained of were short - a minute or two at a time. The place of work was safe and without foreseeable risks to health to persons working there (cf. Taylor v Glasgow City Council 2002 S.C. 364). In any event, he argued that in the whole circumstances (including the fact that the risk of musculo-skeletal injury was not foreseeable, that it was not within the defenders' power to instruct removal of the carcasses, and that the working space was no more restricted than some others that plumbers worked in) it was not reasonably practicable for the defenders to secure that the carcasses were removed before plumbers fitted the new pipework.

[23] Mr Batchelor asked me to accept Mr Sherlock's evidence. Mr Periasamy's evidence supported it in at least two respects. First, Mr Periasamy did not think that the pursuer holding his neck in an awkward posture for two minutes would be sufficient to accelerate the onset of the symptoms from his pre-existing degenerative condition. Second, in re-examination he had indicated that there was a more than fifty per cent chance that onset of the pursuer's symptoms had been spontaneous rather than caused by forces exerted on his neck. In any event, if I was persuaded that there was an acceleration of onset of symptoms, I ought to accept that the period involved was very short - of the order of two weeks or so.

[24] If I found the defenders had breached one or more of their statutory duties, and that as a result there had been an acceleration of onset of symptoms by two weeks, solatium should be £500. If Mr MacLean's opinion as to the period of acceleration was accepted solatium should be £2,750 (Judicial Studies Board Guidelines (10^th ed.) minor neck injuries, category 6(A)(c)(ii)). If the acceleration period was two weeks wage loss would be £728.84: if it was a year wage loss would be £16,125.57. In relation to services a reasonable rate would be about £5 per hour, for about three hours per week. That would result in an award of about £30 if the period of acceleration was 2 weeks and about £750 if it was a year. In relation to all heads of damage interest should run on the whole sum at the rate of 4 per cent per annum from 1 February 2008 until the end of the relevant period of acceleration, and at 8 per cent per annum from then to date.

Discussion
General observations on the witnesses to fact (other than the pursuer)
[25] Except where I indicate otherwise, I found the witnesses to fact (other than the pursuer) to be both credible and substantially reliable. I accepted Mr Tawse's evidence as to pursuer and Mr Nixon having been reprimanded for leaving work early. I found Mr Nixon's recollection to be unreliable on that matter. I did not accept Mr Tawse's evidence that it was possible to weld the joints from a position outside the units. I think it is clear from the evidence of the pursuer and Mr Nixon that it was necessary to enter the units to carry out the task properly.

What happened on 1 February 2008?
[26] I accept that a minor incident of some sort did occur on 1 February 2008 while the pursuer was working within a unit carcass in a science classroom. However, I am not satisfied on the balance of probabilities that the pursuer injured his neck then.

[27] The pursuer's account as to what he felt at the time of the incident varied. Initially he maintained that he had felt a sharp pain in his neck, but later he indicated he was not clear where pain was coming from. His own recollection of what he said to Mr Nixon, to Mr Johnston, and to his wife, indicates similar uncertainty and lack of clarity.

[28] The evidence of Mr Nixon and Mr Johnston was that what the pursuer complained of in their hearing was pain in his back. Their evidence does not support the pursuer's account of suffering - or of complaining of - a sudden pain in the neck.

[29] It was common ground that there are no contemporaneous entries in the medical records which substantiate the pursuer's contentions that he sustained the onset of sudden neck pain while working as he described on 1 February 2008, and that he informed medical staff at Hairmyres of that on 4 and 5 February 2008. The omission of such entries is significant. It is even more telling that the terms of entries which were made are inconsistent with the pursuer's evidence.

[30] The initial entry in the Accident and Emergency Department records at 13.00 on 4 February 2008 noted that he had been complaining of chest pain for the past two days but that it had increased in severity on 4 February 2008 and had been radiating to his left arm. At 13.20 the pursuer's complaint was noted as "Chest pain started 3 days ago in the morning while at rest." On review at 19.08 that day his symptoms were noted to have started on Saturday 2 February 2008. During the six months following his discharge from hospital he attended his G.P. on several occasions in relation to his symptoms, but on no occasion did he mention any incident at work.

[31] On 8 August 2008 he was seen at Hairmyres Hospital by Ms. Lewis. Ms. Lewis was not called as a witness. Her handwritten notes of her consultation with the pursuer, and a letter which she prepared after it (dated 8 August but not typed until 25 August 2008) formed part of the Hairmyres Hospital records 6/1 of Process. The notes and the letter set out the history obtained by her from the pursuer: that he had woken up on a Saturday morning in February 2008 with severe pins and needles in his left arm; that as time went on the pins and needles referred round his chest wall and up through his shoulder to his neck; and that the following day he also had altered sensation in the left side of his face and noticed pins and needles affecting his left leg. The letter went on to note "Around the time of the onset of her (sic) symptoms he was working in a job which (sic) he often found himself in awkward positions". The notes contain the jotting "Cause? - awkward position in frames".

[32] The history obtained from the pursuer on 8 August 2008 is inconsistent with his evidence in court. Nowhere in that history did he indicate that he suffered a sudden onset of neck pain while working within the units on 1 February 2008. His account was that he had woken up in the morning with symptoms.

[33] I accept the pursuer's evidence that Ms. Lewis asked him about his work and raised the question with him as to whether there might be a connection between the work he was doing the day before the onset of symptoms and those symptoms. I do not accept that he told her that he had suffered sudden neck pain while working within a unit.

[34] The pursuer failed to report the incident to the first defenders. Contrary to his position in the pleadings, the pursuer's evidence was that he did not attempt to report the incident to the first defenders or Clark on the day of its occurrence. He made no attempt to do so thereafter. Indeed, he submitted the claim for statutory sick pay dated 8 February 2008 in which he declared that his absence from work was not attributable to an industrial accident. I reject as incredible and unreliable his evidence that he reported the incident to Mr Workman shortly after his consultation with Ms. Lewis. That evidence is inconsistent with his pleadings (where it is averred that he reported the incident to Mr Workman two or three weeks after its occurrence), and with the evidence of Mr Workman (that the only time the pursuer came to see him was a week or two after going off work, that he had come to see him to persuade him not to dispense with his services, that he said nothing about an accident having occurred, and that had he done so Mr Workman would immediately have instigated the relevant accident procedure). I accept Mr Workman's evidence on these matters.

[35] It is apparent that in the initial weeks and months following the incident the pursuer did not treat it as being a matter of any significance. When he saw Ms. Lewis in August 2008 the possibility of a link between his symptoms and work activities was raised. He regarded Ms. Lewis as having revealed that link to him. Thereafter, when he saw Mr Periasamy, Mr MacLean and Mr Sherlock he appears to have had no difficulty recollecting that he felt severe pain in his neck and arm during the incident. It is possible that following his attendance with Ms. Lewis the pursuer has reconstructed his recollection of events and has convinced himself that he felt sudden neck pain during the incident at work on 1 February 2008. Be that as it may, for the reasons already outlined I am not satisfied that his account of the events of 1 February 2008 may be relied upon.

Breach of statutory duty?
[36] As the pursuer has failed to prove the case pled, whether the first defenders were in breach of their statutory duties towards the pursuer is academic. Nonetheless, it is appropriate that I set out my views, at least in outline.

[37] Regulation 26 of the Construction (Design and Management) Regulations 2007 provides:

"... (2) Every place of work shall, so far as reasonably practicable, be made and kept safe for, and without risks to health to, any person at work there...

(4) Every place of work shall, so far as is reasonably practicable, have sufficient working space and be so arranged that it is suitable for any person who is working or who is likely to work there, taking account of any necessary work equipment present."

[38] I do not find it proved that Architect's Instruction 2 had been issued to the first defenders by 1 February 2008, or that that CVI 21 related to the classroom in which the pursuer was working at the time of the incident. In so far as there was a discrepancy between the evidence of Mr Mackenzie and Mr Devlin on these matters I prefer the evidence of Mr Devlin. His evidence appears to me to fit much better with Mr Tawse's evidence, and with the history of events disclosed in the evidence as a whole, than does Mr Mackenzie's. If, as Mr Devlin observed, CVI 21 had related to that classroom it is hard to see why Clark would not have removed the carcasses well in advance of 1 February 2008.

[39] That is not an end of the matter however. The fact remains that the first defenders permitted employees such as the pursuer to work in the carcasses. It is clear that no consideration had been given at the time of the first defenders' risk assessment to the possibility of employees sustaining musculo-skeletal injury while performing such tasks. Nor was any adequate consideration given to it thereafter. I am satisfied on the evidence that the risk of employees sustaining musculo-skeletal injury whilst working in the carcasses ought to have been foreseeable. In that regard I rely upon the evidence of the pursuer, Mr Randle, Mr Tawse, Mr Devlin, Mr Nixon and Mr Johnston. It is not necessary for the pursuer to show that the precise details leading up to his injury ought to have been reasonably foreseeable - it is sufficient if the incident which occurred is of a type which should have been foreseeable by a reasonably careful employer (Hughes v Lord Advocate 1963 SC (HL) 31). In my opinion the pursuer's workplace was not safe and without risk to health to him, nor was he provided with sufficient working space so arranged that it was suitable for him working there. I have had regard to the fact that control over removal of the carcasses rested with Clark, and ultimately the Council, and removal was not something that the first defenders were able to do at their own hand. Nonetheless, I am not persuaded that there were no reasonably practicable steps which the first defenders could have taken, either to obtain removal of the carcasses before 1 February 2008, or to instruct employees such as the pursuer not to do the particular task until removal of carcasses had been achieved. In my view the first defenders have failed to discharge the onus upon them of demonstrating that it was not reasonably practicable to do more than they did to make the pursuer's workplace safe and without risk to health to him (Regulation 26(2)), and to provide sufficient working space, and for the place of work to be so arranged as to be suitable for him working there (Regulation 26(4)). It follows that had I accepted the pursuer's account of the incident I would have found the first defenders to have breached those provisions.

Causation
[40] Even if I had been satisfied that the pursuer did feel a sharp pain in his neck at the time of the incident, I would not have been satisfied that the incident caused symptoms of cervical spondylosis to emerge sooner than would otherwise have been the case.

[41] It was common ground that the pursuer had pre-existing cervical spondylosis. I do not accept that this condition was entirely unsymptomatic prior to February 2008. Standing the entry of 5 October 2007 and the evidence of Dr Nair, I conclude that the pursuer had mentioned some symptoms of neck pain when he attended on that date: but that at that time these were not sufficient to lead Dr Nair to refer him for further investigation, or to cause the pursuer to have any time off work.

[42] Each of the medical experts who gave evidence accepted that the symptoms which the pursuer suffered might have emerged spontaneously. I have already summarised their evidence. I did not have the benefit of seeing and hearing Mr Sherlock and Mr MacLean give evidence, but I have read the transcripts of their evidence with care and I heard detailed submissions in relation to them.

[43] In large part I find Mr Sherlock's reasoning to be more persuasive that Mr MacLean's. I take some comfort in the knowledge that Mr Sherlock's experience is considerably greater than Mr MacLean's. It seems to me to be inherently unlikely that the pursuer holding his head and neck in an awkward posture for a short period would cause an acceleration of the onset of symptoms of cervical spondylosis. I am persuaded that the occurrence of symptoms in such circumstances was much more likely to have been spontaneous and coincidental, particularly where there was evidence of an earlier report of neck pain in October 2007. Mr MacLean struck me as being unduly dismissive of that earlier report. I find support for Mr Sherlock in the evidence of Mr Periasamy. The latter's initial opinion was premised on the scenario that injury to the pursuer's neck had been caused as a result of a sharp turn, not by him holding his head and neck in an awkward position for two minutes or so. Mr Periasamy did not support the proposition that holding the head and neck in an awkward twisted posture would have caused an acceleration of the onset of symptoms of the pursuer's cervical spondylosis. If that was the suggested cause then he favoured the view that the pursuer's symptoms had emerged spontaneously.

Damages
[44] Had I found that the incident occurred as the pursuer claimed, and that the defenders' breaches of statutory duty caused the pursuer to sustain loss, injury and damage, I would have proceeded on the basis that the acceleration of the onset of the pursuer's symptoms was for a very short period. If the fairly minor forces to which the pursuer was subjected were sufficient to cause the onset of symptoms, I think it is likely that had the incident not occurred another minor incident at work or home would have caused their early onset. On that basis Mr MacLean's estimate of there having been an acceleration period of "up to a year" is too favourable to the pursuer. On the other hand, Mr Sherlock's estimate of days, or up to two weeks, is too short. Both experts recognised the inexact science involved in such estimation. I would have wielded a broad axe and taken the acceleration period to be three months. I would have awarded solatium of £1,750. Wage loss during the period between 1 February 2008 and 30 April 2008 was £6,039.31 (£728.44 during the first two weeks off work and £5,310.47 over the next 11 weeks). I would have awarded £450 in respect of s. 8 services. Interest would have run on each of those awards at the rate of 4 per cent per year from 1 February 2008 until 30 April 2008, and at 8 per cent per year thereafter.

Disposal
[45] I shall pronounce decree of absolvitor in favour of the first defenders. I shall reserve all questions of expenses.