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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kelly v. Smith Anderson and Company Ltd [2004] ScotCS 197 (03 August 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/197.html Cite as: [2004] ScotCS 197 |
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OUTER HOUSE, COURT OF SESSION |
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A3541/02
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OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the cause PETER KELLY Pursuer against SMITH ANDERSON AND COMPANY LIMITED Defenders
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Pursuer: Smart; Thompsons
Defenders: Davidson; Simpson & Marwick, W.S.
3 August 2004
Introduction
[1] The pursuer, who was born on 10 February 1956, sustained injuries on 20 January 1999 in an accident which occurred in the course of his employment with the defenders at their premises at Fettykil Mills, Leslie, Fife. Liability was admitted by the defenders and the action went to proof on quantum of damages only. It is nevertheless necessary, in order to determine the nature and extent of the injuries suffered by the pursuer, that I should first of all reach a concluded view on the precise circumstances of the accident. To do that I require to examine the pleadings, a Joint Minute entered into between the parties and the evidence which I heard about the circumstances of the accident.
The pleadings
[2] It is agreed that, at or about 11.30pm on or about 20 January 1999, the pursuer was required to assist in the off-loading of a Hyster 30 forklift truck off the trailer of a low loader which was positioned outside the garage area of the defenders' premises, and that he positioned the forklift truck driven by him beside the low loader. The pursuer's averments in condescendence 2 about the circumstances of the accident are as follows:
"It was the normal practice of the defenders' employees to drive low loaders carrying such machinery into the garage, where a crane was situated and use the crane to lift the machinery off the low loader. On the said date the defenders were in the process or moving garage premises and there was no crane available to lift the fork lift truck from the low loader. A fellow employee Mr James Szaranek had been placed in charge of the off loading of the fork lift truck. He instructed the pursuer to off load the fork lift using another clamp truck. The clamp truck was designed for moving bales of waste paper which it was designed to lift between two clamps with which it was fitted at the front. The pursuer was instructed to drive the clamp truck to be used. The vehicle used by the pursuer had no rear lights on it. The pursuer positioned the clamp truck driven by him beside the low loader. Mr Szaranek attached a sling between the forks of a fork lift and the clamps of the clamp truck. He instructed the pursuer to operate the mechanism to open up the clamps and lift the fork lift off the back of the low loader. He then instructed the pursuer to start reversing his truck to tow the other vehicle off the low loader. In order to do so the pursuer required to reverse at an angle. A trench had earlier been dug by fellow employees in the area where the pursuer had to reverse into. Barriers were supposed to have been erected around the trench area, but this had not been done. The ditch had simply been left covered with metal plates. The pursuer had no one to guide him as he reversed. It was very dark. The pursuer was instructed to reverse his vehicle onto the metal plates by Mr Szaranek. As he did so the fork lift came off the low loader at some speed. Although Mr Szaranek was sitting in the front of the fork lift truck he was unable to steer it because its four wheels upon which the brakes were fitted were lifted off the ground in the course of the manoeuvre. The clamp truck took the full weight of the fork lift truck on its front with the result that it was impossible for the pursuer to steer the clamp truck adequately because the weight was not adequately counterbalanced and the front wheels of the clamp truck would not turn. The back offside rear wheel of his vehicle caught on the edge of the ditch and the metal plates causing the clamp truck to fall into the ditch onto its side. The pursuer thereby sustained the loss, injury and damage hereinafter condescended upon."
"Explained and averred that two metal plates were placed over a track running between the defenders' garages. Each plate was 2.4 metres long and 1.2 metres wide. They were laid end to end, thus covering the track to a length of 4.8 metres. The track was protected with cones and tape on either side of the metal plates. The pursuer was operating Hyster Truck 16, which is 1.7 metres wide. The said truck is fitted with two lights to the front and one to the rear. Prior to the pursuer commencing to reverse the Hyster 16 truck, the said Mr Szaranek ensured it was pointing towards the middle of the plates."
The Joint Minute
[4] It is stated in paragraph 1 of the Joint Minute of Admissions No. 20 of process that the parties are agreed that the pursuer sustained injury in an accident on 20 January 1999 in the circumstances averred on Record (my underlining) and that the defenders are liable to make reparation to the pursuer for any loss, injury or damage sustained by the pursuer in consequence thereof.
Evidence about the accident
[5] I heard evidence about the circumstances of the accident from the pursuer, Barry Clark, the nightshift supervisor who was nearby in the garage at the time of the accident, and Harry Campbell, the garage manager, who came on duty the following morning. I also heard evidence from two consultant orthopaedic surgeons, Mr Ivan Brenkel (who was led for the pursuer) and Mr Michael McMaster (who was led for the defenders) about the account of the accident given to them by the pursuer when they examined him.[6] The account of the accident given by the pursuer in examination in chief was that he was engaged in removing a Hyster 30 forklift truck from a low loader upon which it had become stuck. He himself was driving what he described as a clamp truck, that is, a vehicle similar to a fork lift truck except that, instead of having forks at the front, it had clamps which were used for clamping bales of paper. His colleague Jim Szaranek attached slings onto the front of the Hyster 30 and also onto the clamp truck being driven by the pursuer. He was watching the front of the Hyster 30 in case it came down the ramp and he started to manoeuvre his truck when all of a sudden its near-side wheel, as he put it, "came up to meet me and the whole thing just flipped over in seconds". At the material time he was reversing at an angle and there was a ditch behind him. All he knew was that his near-side rear wheel came up to meet him and "it just couped right over". The whole truck turned upside down and he landed in the ditch. There was no seat belt or head rest inside his truck, only a seat and the controls. His left leg got trapped or stuck under the pedals as his truck turned over, and he was hanging and got flung about in mid air, and then his leg came off the pedals and he came down on the back of his neck as he fell into the truck. He was then lying on top of the roof and the truck was upside down. The door of his truck smashed and there was glass everywhere, so he covered his eyes. He was also worried about acid coming out of the battery as the truck was upside down. He just got out of the truck and did not look at it as he was told by Jim Szaranek or Barry Clark to go and sit down.
[7] The above account was strongly challenged in cross-examination. When the pursuer was asked by Mr Davidson whether he was saying that his truck ended up resting on its roof, his reply was that he did not remember it, he just remembered landing inside on top of the roof. When pressed on the point by Mr Davidson and asked whether he was saying that the vehicle did not end up lying on its roof, his reply was "I don't know. It was actually just when the accident happened it turned upside down, and all I remember is falling inside the cab and panicking and just covering my eyes, covering my eyes and got out as quick as I could because I wasn't wanting burnt with acid." Later, he said to Mr Davidson "I'm saying I got turned upside down. I didnae say the unit got turned upside down. It was actually me inside the cab. I was inside the cab, and I was turned upside down." When it was put to him that he could not have been hanging upside down if the vehicle was lying on its side, his reply was "I don't know." In response to a suggestion that it was impossible for him to have been hanging upside down if the vehicle was lying on its side, he stated "Well, my leg got caught and I was trapped, and I fell down on to the back of my neck. The head, my back and my neck got the brunt of it, and I fell down in to the cab. I don't know whether it was on its side, or its back, upside down." He accepted that an entry made by him in the Accident Book (6/3/2 of process) a day or two after the accident contained no mention of his truck falling onto its roof or of his having been hanging upside down from the pedals by his feet. In answer to the suggestion that he had invented all the details about the vehicle going onto its roof and his hanging upside down, the pursuer responded "Well, I don't know how I hurt my neck then if I didnae go upside down, how I landed upside down inside the cab, because that's all I remember, is getting out of the cab after being turned upside down." He said he did not look at his truck at all after he was injured.
[8] In re-examination Miss Smart sought and was granted leave to lodge at the Bar No.6/12 of process, the pursuer's time card covering the shift during which the accident occurred, and containing an account of the accident written by the pursuer in the course of his shift. Miss Smart was allowed to lodge this document at that stage in the proof as the defenders had not until that time produced it in terms of a specification of documents served on them by the pursuer. Mr Davidson was allowed to cross-examine further upon the content of this document, and, when he did so he pointed out to the pursuer that, referring to the truck which he was driving, the pursuer had said "it turned upside down", and a couple of days later he changed that and said it ended up on its side. The pursuer's answer to Mr Davidson was "That's because I don't know how it landed. I only know I felt as if I went upside down at the time of the accident, and after that I didnae know whether it went on its side, on its roof or what happened."
[9] The evidence of Barry Clark, the nightshift supervisor, was that he was inside the garage when the pursuer and Jim Szaranek came in to tell him what had happened. The pursuer told him that he went too far back, missed the steel plate and went into the hole, had got a fright and was OK. Mr Clark looked at where the accident happened and saw the back end of the truck couped in the hole. The hole was a ditch which was a service duct, 21/2 feet x 21/2 feet, which was being made for oil, air and water pipes. When he saw the truck the back end was in the ditch and it was lying twisted at an angle. The bottom of the truck was on the ditch at a slight angle. He described a steel plate 10 or 12 feet wide over the ditch and said that lorries drove over it. The side of the pursuer's truck was touching the plate. From what he saw the truck was not resting on its roof. He pulled it out of the ditch using another fork lift truck. He was unable to understand how it would be possible for the truck to fall on its roof in the ditch because of the mast, which was like the mast shown on the truck in No.7/6b of process. Very little of the chassis was in the ditch when he saw it. The ground clearance in a fork lift truck is minimal, and it was towards its side, not on its side. He described it as "tilted". It was not at all difficult for him to pull it out using the tow rope attached to a larger truck. In cross-examination he expressed the view that if the truck had ended up on its roof in the ditch it would have had to be written off because of the damage it would have sustained.
[10] The garage manager, Harry Campbell, came on duty the following morning and learned of the accident. In cross-examination he expressed his views upon the likelihood of the pursuer's truck ending up upside down in the ditch. He explained that the ditch was between 2 and 3 feet wide and of a similar depth. The truck had a mast which was about 3.2 metres high. He could envisage the wheel of the pursuer's truck going into the hole and the truck then toppling onto its side. When cross-examined he stated that he could not see any way in which the truck could have ended up on its roof. The ditch was not wide enough for it to go over onto its roof.
[11] The consultant orthopaedic surgeon Mr Brenkel examined the pursuer on 9 September 1999 and noted the pursuer's account of the accident in the following terms in his report:
"He was driving his fork lift truck and was reversing at the time of the accident. It was dark. He had his door open to hear a colleague shouting directions. Unfortunately, his colleague was unaware that there was a hole and the fork lift truck tipped into the hole. With the force of the truck tipping, the door slammed closed and showered him with glass. He therefore put his hand up to protect his face. He felt immediate pain in his left calf radiating to his ankle."
It will be noted that there is no mention in that account of the truck having ended up upside down or of the pursuer hanging upside down with his left leg caught in a pedal and then falling down on to the upended roof.
[12] The account of the accident given by the pursuer to the consultant orthopaedic surgeon Mr McMaster on 1 September 2000 was generally in the same terms as the account given by him in examination-in-chief. It was noted in the following terms by Mr McMaster:
"Mr Kelly says that on 20 January 1999 he was on the night-shift and was driving a fork-lift attempting to pull another fork-lift truck off the back of a low loader when he was involved in an accident. He says that the back wheels of his fork-lift went into a gulley causing the fork-lift to turn over onto its roof. His left leg jammed between the pedals and he was suspended for a period before becoming free and falling on top of his head and the back of his neck. He says that he was not knocked unconscious and was able to climb out of the cab of the fork-lift".
Conclusion on the circumstances of the accident
[13] I consider that I am bound by the terms of paragraph 1 of the Joint Minute No. 20 of process. A Joint Minute is contractual in character (Maxwell, Court of Session Practice, p.213) and binds the parties to it, even though the authority of the court has not been interponed thereto (McAthey v The Patriotic Investment Society Ltd 1910 SC 584, per the Lord President at p.586). The parties in this case have therefore entered into a binding agreement that the pursuer sustained injury in an accident on 20 January 1999 in the circumstances averred on Record (my underlining). The material averment on Record is to be found at p.9E, and is as follows:
"The back off-side rear wheel of his vehicle caught on the edge on the ditch and the metal plates causing the clamp truck to fall into the ditch onto its side."
I am accordingly of the view that I have no option but to proceed on the basis that the pursuer's truck fell into the ditch onto its side.
[14] In any event, even if it had been open to me to do so, I would not have held that the pursuer's truck landed upside down in the ditch. I accept the evidence of Mr Clark and Mr Campbell about the dimensions of the ditch, namely, that it was between 2 and 3 feet wide and also between 2 and 3 feet deep. That being so, it follows that it would have been impossible for a bottom-heavy truck with a mast, such as the pursuer was driving, to have landed upside down in the ditch. I also accept the evidence of Mr Clark about the position of the truck when he removed it from the ditch immediately after the accident, and the ease with which he was able to do so. If the truck had landed upside down in the ditch, one would have expected the mast, which was over 3 metres high, to have been damaged, but Mr Clark made no mention of any damage to the mast.[15] Although I do not accept the evidence of the pursuer about the resting position of his truck in the ditch, I would not describe his evidence on this point as incredible. I formed the view that he was an honest man who was being open and frank when he gave his evidence. He seemed genuinely bemused when Mr Davidson suggested to him that part of his evidence had been invented by him. On the other hand, I formed the view that the general reliability of the pursuer left much to be desired. On certain points he was quite simply wrong, but I am quite clear in my view that he was not at any stage in his evidence being dishonest, and I reject any attack by Mr Davidson on his honesty. It seems to me that, with the passage of time, the pursuer has come to have a distorted perception of exactly what happened in the accident, and this has coloured the accounts which he has provided and caused them to become over-dramatised. I think that he himself ultimately came almost to recognise this when he said under further cross-examination that he did not know how the truck landed, that he only knew he felt as if he went upside down at the time of the accident, and after that he did not know whether it went on its side, on its roof or what happened.
[16] Accordingly, had it been necessary for me to examine the evidence on the occurrence of the accident, I would have concluded that what happened was that the pursuer reversed his truck into the ditch and that it then toppled onto its side within the ditch. This conclusion is consistent with the pursuer's averment that the truck fell into the ditch onto its side.
[17] It does not follow from my conclusion (based either upon the terms of the Joint Minute and the pursuer's averments, or alternatively upon my assessment of the evidence) that the truck fell onto its side in the ditch, that the pursuer did not sustain the injuries which he avers that he sustained in the accident. I deal with this issue in more detail below.
The pursuer's injuries
[18] The pursuer avers that he sustained injuries to his left calf and his neck. There was no real dispute about the calf injury, but there was a serious dispute about the neck injury.[19] When the pursuer arrived home at the end of his shift in the course of the morning of 21 January 1999 he told his wife that he had hurt his leg and, he thought, his neck as well. She saw that his leg was bruised and advised him to see his GP. He attended his GP, Dr Fiona Woollard, that day. She noted in her records that he had had an accident at work last night when a fork lift truck turned over and that he had come to report his injuries. Her note records that he was walking OK with a slight limp and that he had pain and tenderness over the Achilles tendon and bullying up of the calf muscles. She queried whether he had a partial rupture of the Achilles tendon and advised him to attend the Accident and Emergency Department at the Victoria Hospital, Kirkcaldy. He was seen there the same day by a senior house officer who discussed his case with a consultant. There was no gap palpable in the Achilles tendon and the pursuer was discharged home with a double tubigrip to his leg and advised to take regular rest and analgesia for his pain. The pursuer described pain in his left leg, which he said was bruised and swollen above the ankle. For a time he was not able to walk, jog, run or play football and he had problems with DIY work. He used to play football in the park at weekends but was no longer able to do so because, as he put it, his leg "just collapses for some reason". He does not continue to have pain, but he experiences weakness in his leg after walking a certain distance. Mr McMaster diagnosed the injury to the pursuer's left leg as a soft tissue strain of the musculotendous junction of the tendo-Achilles, and both he and Mr Brenkel were of the view that there was unlikely to be any improvement in the condition of the pursuer's left leg.
[20] So far as the neck injury is concerned, the pursuer told Mr McMaster when he saw him on 1 September 2000 that the day after the accident he saw his general practitioner and complained of pain and swelling in his left lower leg as well as stiffness in his neck. The statement by the pursuer that he complained to his GP the day after the accident of stiffness in his neck is clearly not correct as there is no mention in the GP's notes for 21 January 1999 of any complaint by the pursuer of stiffness in his neck. In his evidence the pursuer said that his neck was not giving him much trouble when he attended the Accident and Emergency Department and that it was only two or three days later, when he was struggling to look up and do things at work, and also when he had trouble sleeping, that he went to see his GP about his neck. I accept that evidence from the pursuer as it is in accordance with the note made by another GP in the practice, Dr Sharon Mullen, who saw the pursuer on 25 January 1999. She noted in the records that he had been involved in a road traffic accident (sic) last week and that he had a painful neck. On examination she found that he had muscular spasms and she signed him off work until 1 February 1999. She wrote in the records the word "advise", which she explained in evidence meant that she had given him advice on what medication to take. Dr Mullen saw the pursuer again on 3 February 1999, when she noted in the records "still pain neck", and signed him off work until 15 February 1999. She accepted in her evidence that, according to that entry, she did not prescribe the pursuer any analgesics on that day.
[21] The pursuer returned to work on 15 February 1999. At that time he was working constant nightshift as a greaser and his work involved his being underneath lorries, sometimes in a pit, in order to do such things as grease the lorries and change the oil and wheels. He explained that he was struggling to do this work because of his neck. He had a strain on the back of his neck and, by the time he got home in the morning, he was unable to sleep and was taking painkillers. He consulted a physiotherapist for neck stretching exercise and the physiotherapy helped to some extent, but he was told by the physiotherapist that he had damaged his neck. He tried to persevere at work because he had a young family. He did not speak to anyone at work about his neck problem as he thought he would just be told to "get on with it". He was taking painkillers every day just to get a sleep. Initially he said he got these painkillers on repeat prescription. He saw Dr Mullen again on 20 April 1999, when she noted that he still had problems with his neck and episodes of spasm. It was on that day that she referred him for physiotherapy. The physiotherapy records show that he underwent manual therapy and was discharged on 25 May 1999. On 17 September 1999 the pursuer again saw Dr Mullen. On that day she noted that he had a recurrence of neck pain and she referred him back to the physiotherapist as physiotherapy had previously been helpful. The physiotherapy records show that he thereafter had manual therapy and traction and was discharged on 3 November 1999. On 22 October 1999 the pursuer saw another GP, Dr Steven, who noted "Neck pain still. Solpadeine no help now. Check x-ray. Try diclofenac" and prescribed 50 diclofenac tablets. Over a year later, on 16 November 2000, the pursuer again saw Dr Mullen. She noted that he had intermittent problems with his neck and that he had seen Mr Brenkel privately. She then entered in her record the word "osteoarthritis" and the sentence "add diclofenac to DM". She explained that "DM" was a reference to the computer for repeat prescriptions. The computer printout (7/7 of process) showed that the pursuer had received 50 diclofenac tablets on 22 October 1999, 3 November 2000, 26 April 2001, 25 September 2001 and 26 February 2002. He had not received any diclofenac after 26 February 2002. Dr Mullen said that the pursuer did not tell her what work he was doing in 1999 and he never said to her that he was not able to cope with his work.
[22] In December 1999 the pursuer changed his job with the defenders to a lighter job as a turbine operator in the boiler house. I deal with the circumstances in which this occurred and the reason for it in more detail below when dealing with loss of earnings, but it is sufficient to say at this stage that the change of job appears to have eased the problems with his neck. He still had to avoid putting any strain on his neck at home.
[23] Mr Brenkel saw the pursuer on 9 September 1999, 2 March 2000 and 23 April 2003. His reports are 6/1, 6/2 and 6/10 of process. He adopted these reports as his evidence. In his reports he referred to the pursuer's neck injury as a whiplash injury and in his evidence he described it as a soft tissue injury from being thrown about in the truck. In his report (7/4 of process) following upon his examination of the pursuer on 1 September 2000, Mr McMaster expressed the opinion that the accident described by the pursuer was consistent with his sustaining a soft tissue strain to the neck aggravating his pre-existing degenerative arthritic changes, that he was treated in an appropriate manner and then had only intermittent discomfort and stiffness in the neck brought on by activities which required his looking upwards or downwards for prolonged periods. As his symptoms had been present for twenty months Mr McMaster thought that they were likely to continue, more as an inconvenience than a disability, for the foreseeable future and he did not anticipate any deterioration in the condition of his neck. In his evidence Mr McMaster departed from that opinion. He said that the description of the accident given to him by the pursuer conjured up a very dramatic picture and that, if the true circumstances of the accident were as averred on Record, he would have accepted the pursuer's symptoms to have lasted only one to two weeks. He did not accept that the pursuer would have suffered a severe jolt when the accident occurred and he did not think that the pursuer would have fallen very far to the side. His view was that there would have been relatively minor forces acting against the pursuer, that he would have been thrown to the side against the door of the truck and that he would have been shaken up and bruised, but the accident as described on Record was not one which would have caused "a neck injury as such", although it might have caused a mild strain.
Conclusion about the pursuer's injuries
[24] My conclusion is that the pursuer was telling the truth about the leg and neck injuries which he sustained in the accident and also about the nature and extent of the symptoms which he has suffered since then. In order to accept that he sustained the neck injury which he described it is not in my opinion necessary to accept that his truck ended upside down in the ditch and that he fell downwards on to the upended roof, thus straining his neck. I have already held that he reversed his truck into the ditch and that it toppled into the ditch and ended up lying on its side. There is in my view no difficulty in envisaging how, when the truck toppled into the ditch, he would have been likely to sustain a severe jolt such as would cause a strain to his neck. I am satisfied that he did injure his neck when he received a severe jolt as his truck fell over onto its side in the ditch. My view of the credibility of the pursuer's evidence about his injuries is strengthened by a consideration of his GP records, the detail of which I have referred to above. There is no doubt that he consulted his GP four days after the accident complaining of a painful neck and that he had muscular spasms in his neck at that time. His further attendances at his GP, and his two referrals for physiotherapy, all documented in the records, support his evidence that he was continuing to suffer from pain in his neck. Having already found that the pursuer was a generally credible witness, I reject completely any suggestion that he was lying about the nature and extent of his neck symptoms. So far as the evidence of Mr McMaster conflicts with the evidence of the pursuer and Mr Brenkel, I do not accept it. It seems to me that Mr McMaster somehow got the impression before he gave evidence that the pursuer had deliberately lied to him about the circumstances of the accident with a view to fabricating or at least exaggerating his neck symptoms and that this impression on the part of Mr McMaster caused him to be ill-disposed towards the pursuer in his evidence.[25] A great deal of time was taken up with evidence about the type and amount of analgesic drugs taken by the pursuer for his neck pain after the accident. In a strong attack on the credibility of the pursuer, Mr Davidson submitted that the pursuer's evidence about the type of drugs he had taken, and the frequency with which he had taken them, was exaggerated and reflected adversely upon his general credibility. My view is that the evidence of the pursuer about the types of analgesic drugs (that is, whether they had been bought by him over the counter from a pharmacist or received on prescription from his GP) he was taking and when he was taking them is an example of his unreliability. I have no doubt that he was wrong in what he said on this topic in his evidence in chief, but I do not conclude from that that he was being untruthful. I consider that it is both unrealistic and unreasonable to have expected the pursuer at the date of the proof to have had a detailed recollection of which analgesic drugs he had taken and precisely when he had taken them. I find that the only prescribed analgesia which he received is that recorded in the computer printout 7/7 of process, the details of which I have set out above, and that otherwise he was taking over the counter analgesics on a regular basis to deal with the pain, particularly up until his change of job in December 1999. That this was so is supported by the evidence of his wife, which I accepted.
Solatium
[26] In terms of paragraph 2 of the Joint Minute No. 21 of process it is agreed between the parties that if the court were to accept the evidence led on behalf of the pursuer in relation to the nature and extent of the injuries suffered by him as a result of the accident he would be entitled to award of solatium of £10,000 net of interest, two-thirds of which is attributable to the past. I shall therefore make an award of solatium of £10,000 net of interest, two-thirds of which is attributable to the past.
Loss of earnings
[27] In terms of paragraph 5 of the Joint Minute No. 20 of process it is agreed between the parties that the loss of earnings sustained by the pursuer in the period from 20 January 1999 to 15 February 1999 was £596.82. There was no dispute that he is entitled to an award of such a sum and that the appropriate amount of interest falls to be added.[28] A sharp question arises about the entitlement of the pursuer to an award for any past loss of earnings from 16 December 1999 to date and for any future loss of earnings. It arises in this way. As stated above, the pursuer changed his job with the defenders on 16 December 1999, when he took up the post of turbine operator in the boiler house. As a result he suffered a net annual loss of earnings of £2,450. The question which I now have to determine is whether his change of job was attributable to the neck injury which he sustained in the accident, or whether it was a matter of personal choice. The defenders aver that he applied for a position in the boiler house as they were considering outsourcing employment in their garage and there was uncertainty as to his employment there.
[29] The pursuer's evidence about his change of job was that he had been struggling to keep his head up when working in the garage in the course of 1999 and when he heard about the availability of the job in the boiler house he went and spoke to Mr Soutar, the boiler house manager, who took him on as a turbine operator. His job as a turbine operator involved only his having to press two buttons and enabled him to avoid upward head movements and lifting. When he obtained the job of turbine operator the post was temporary, and it still is. If a new system were installed in the boiler house, all the jobs there would go. He explained that he moved from his job in the garage to a temporary job in the boiler house as he thought it would be easier on him and on his wife. He accepted that he had not mentioned any neck problem to Mr Soutar, and explained that he thought he would maybe have had less chance of getting the job in the boiler house if he had mentioned his neck problem to Mr Soutar. If the accident had not happened he would still have been working constant nightshift in the garage.
[30] The evidence of Mr Soutar, who had worked for the defenders for 35 years, was that, at the time that the pursuer moved to work in the boiler house, there were rumours that the garage was going to shut down and he thought that the pursuer moved to work in the boiler house as he (the pursuer) was worried about his job in the garage. Everybody had been told that if a new combined heat and power unit were installed in the boiler house all the staff there would be made redundant. He was not aware that the pursuer had had an accident or that he suffered from a neck problem. The evidence of Mr Campbell, the garage manager, who was not aware of any continuing problem with the pursuer's neck, was that in September 1999 the pursuer came to see him to discuss moving to the boiler house because of his concern about his job in the garage. As the pursuer had been the first worker to be taken on in the garage, he would be the first to go in the event of the work force being reduced. The rumours about the garage closing and the work being outsourced had been going about, according to Mr Campbell, for about ten years. Mr Clark never discussed with the pursuer why he left the garage to go to the boiler house.
[31] I am satisfied that the pursuer changed job to work as a turbine operator in the boiler house in December 1999 because he entertained a reasonable concern that he would not be able to continue with his job in the garage due to the neck pain which he was continuing to suffer. I reach this conclusion on the basis of the evidence of the pursuer and his wife, both of whom I accepted as credible and reliable on this issue. Insofar as the evidence of Mr Campbell conflicts with the evidence of the pursuer and his wife on the question of the job move, I reject it. I was not impressed by the evidence on this issue from Mr Campbell, who seemed to me to harbour a hostile attitude towards the pursuer. There are good reasons for accepting the evidence of the pursuer and his wife on the change of job. First, as I have held that the pursuer did suffer from continuing problems with his neck in the course of 1999, it follows that he had good reason for fearing that he might not be able to continue working in the garage, where he regularly had to look up and strain his neck in order to carry out his work. Secondly, the boiler house job was less suitable for the pursuer, less secure and less well paid. The constant nightshift which he worked in the garage suited himself and his wife, and he was not to be working constant nightshift in the boiler house. Mr Davidson accepted in his closing submission that the pursuer, who has been in constant employment since he left school, was a man with a strong work ethic. I find it difficult to understand why such a person would move to a less convenient, less secure and less well paid job unless he had a substantial reason for doing so. That reason was, in my judgment, a fear of his inability to continue working in the garage due to his neck symptoms, and not because of long-standing rumours about the work in the garage being outsourced and the garage closing. It follows from this conclusion that the pursuer is entitled to loss of wages from the time he took up his job in the boiler house in December 1999 to date on the basis of an annual net shortfall of £2,450. He is also entitled to future loss of earnings, but the multiplier of 11.56 agreed for this in paragraph 5 of the Joint Minute No. 21 of process may require minor adjustment in view of the passage of time since it was lodged.
Services
[32] I am not satisfied that the pursuer is entitled to any award under this head. The evidence on this issue from both the pursuer and his wife was minimal. No evidence was led from any relative to whom the pursuer would be obliged to account for any award of damages under this head under section 8(2) of the Administration of Justice Act 1982. The pursuer might well have found it convenient to obtain assistance from a brother in painting the ceiling or working on his car, but I am not satisfied that any such assistance amounted to "necessary services" within the meaning of section 8(1) of that Act. While it is understandable that the pursuer may from time to time experience discomfort, or even pain, in his neck while carrying out jobs around the house, I think that any symptoms which he may suffer would be at most an inconvenience, and they would not render him unable to undertake DIY jobs at home. There is an obvious difference between having to work a full shift during which the neck has to be flexed backwards in order to look up and carrying out occasional jobs around the home, when it is possible to do the work at a convenient pace and take a rest when required. I accept Mr Davidson's submission that the pursuer is not unfit to carry out necessary services as he is not expected to work through the pain barrier when working at home. There will therefore be no award under this head.
Objections and motion to amend
[33] Various objections were taken in the course of the proof and I allowed the evidence to which objection was taken to be led subject to all questions of competency and relevancy. These objections were taken by Miss Smart when Mr Davidson sought to lead evidence about the circumstances of the accident in the course of the cross-examination of the pursuer, Campbell and Clark. The evidence in chief of the pursuer about what happened in the accident was given by him without formal objection, although it is true to say that Mr Davidson interrupted when this evidence was being led in order to "just put down a marker at this point" and invited me to take the evidence "subject to competence and relevance". As the evidence of the pursuer about the accident was led without formal objection, in my opinion Mr Davidson was entitled to cross-examine the pursuer on it and to lead evidence from other witnesses about it. I therefore now repel the objections which were taken by Miss Smart to this evidence. I also repel the objections which she took in the course of the cross-examination of Mr Brenkel and the examination in chief of Mr McMaster to evidence about the timescale of the pursuer's recovery. I do not see that the pursuer was in any way prejudiced by this evidence. I shall also allow the motion to amend which was made by Mr Davidson in his closing submission to add at the end of Answer 7 the following: "Since at least the end of May 1999 the pursuer has not suffered any symptoms attributable to the accident." Such an amendment is in my view necessary "for the purpose of determining the real question in controversy between the parties" (Rule of Court 24.1(1) and (2)) so far as the question of the pursuer's injuries is concerned.
Decision
[34] The pursuer is entitled to damages under the following heads:
(1) Solatium of £10,000, two-thirds of which is attributable to the past;
(2) Interest at one-half the judicial rate on past solatium from the date of the accident until the date of decree;
(3) Wage loss to 15 February 1999 of £596.82;
(4) Interest at the full judicial rate on £596.82 from 15 February 1999 until the date of decree;
(5) Wage loss from 16 December 1999 to date at the rate of £2,450 per annum;
(6) Interest at one-half the judicial rate on the figure in (5) above from 16 December 1999 until the date of decree; and
(7) Future wage loss calculated on a multiplicand of £2,450 and a multiplier of 11.56, subject to any necessary adjustment of the multiplier to take account of the passage of time since it was agreed.
