Pursuer: M Stuart; Morisons, WS

Defenders: Cowan; Simpson & Marwick, WS

28 July 2006

Introduction

[1] In this action, the pursuer, a construction worker employed by the defenders, sues in respect of two incidents or series of incidents as a result of which he claims to have suffered an injury to his lower back.

[2] The pursuer's case on Record is that on 15 June 2001, whilst working in the course of his employment, he injured his back whilst helping to lift a portable cement mixer on to the back of a lorry. He was off work for some weeks but eventually returned to work on 23 July 2001, his doctor having certified him as being fit only for light duties. When he attended the defenders' site on that date, he was put to work on the roof of a block of flats, which was then under construction. The work involved laying insulation on top of a concrete roof and thereafter covering the insulation with concrete slabs. He did this work for two weeks, for the first of those by himself and for the second with one other man. Thereafter he was put on other heavy duties, including paving and excavating. Eventually, on about 28 September 2001, he woke up unable to move. He claims that he has been unable to work since then.

[3] In presenting his case, the pursuer has been put at a considerable disadvantage as a result of two quite separate matters, both relating to the preparation (or, rather, lack of preparation) of his case. In saying this, I should say that I am not in a position to point the finger at where the blame lies. I do not have the information to enable me to do so and it would in any event be invidious to attribute blame without hearing the full circumstances. Any criticisms, if justified, can be taken up by the pursuer separately. I should, however, narrate the circumstances as they came before the Court, since they directly affected the way in which the proof proceeded.

Procedural difficulties

Rule of Court 43

[4] The first matter arises out of the new personal damages rules in Rule of Court 43. Rule 43 arose out of the recommendations of the Coulsfield Report in 2000. One aspect of the Rules is that the Court retains more control over the proceedings than would otherwise be the case. Thus, Rule 43.6 provides that the Keeper of the Rolls shall, on the lodging of defences, allocate a diet of proof for the action and issue a timetable for various steps to be taken by the parties leading up to that proof. Relevant to the present case is the requirement on the parties each to lodge in process by a date identified in the timetable "a list of witnesses together with any productions upon which they wish to rely": Rule 43.6(1)(b)(vii).

[5] Rule 43.6(3) provides that, where parties fail to comply with any requirement of the timetable, the Keeper of the Rolls may (and, in the case of a failure to lodge a Record, must) put the cause out to be heard on the By Order Roll. It is the common experience of Outer House judges to deal with such matters on a routine basis. Rule 43.6(8) provides specifically for the case where a party has not lodged productions in accordance with the timetable. It provides that a production not lodged in accordance with the timetable "shall not be used or put in evidence at a proof unless" by consent of the parties or "(b) with the leave of the Court on cause shown and on such conditions, if any, as to expenses or otherwise as the Court thinks fit". There is, however, no comparable provision in Rule 43.6 to deal with the case where a party has failed to lodge in process by the required time his list of witnesses. The notes to the Rule in the Parliament House Book at 43.6.7 suggests that it may be difficult to imply in relation to witnesses a similar restriction as is expressly made in respect of productions. But the note does not propose a solution. It simply points out that the action will, nonetheless, be subject to a particular Practice Note, the relevant one being No.8 of 1994 (rather than No.4 as suggested in the Note). This Practice Note, which pre-dates the new Rule 43, is to be found at page C2032 of Volume II of the Parliament House Book. It is headed "Exchange of Lists of Witnesses". It provides that subject to various provisions, including Rule 43 (though at that time that was obviously a reference to the old Rule 43), each party shall, not later than 28 days before the diet fixed for proof or jury trial, give written intimation of a list of witnesses and lodge a copy of that list in process. It goes on, in paragraph 2, to state that "a party who seeks to call as a witness a person not on his list intimated under paragraph (1) may do so subject to such conditions, if any, as the Court thinks fit".

[6] The argument has been made, on a number of occasions, that the power to impose conditions under paragraph 2 of that Practice Note is limited to the case where a party, having intimated a list of witnesses, seeks to call an additional witness not named on the list. In other words, it has no application where no list at all has been intimated. In such a case, it is argued, a party is entitled to call any witness he chooses. It has also been argued that the restriction in paragraph 2 of the Practice Note applies only to witness lists intimated under paragraph 1 thereof, and can have no application to a witness list which ought to have been lodged in process under the timetable issued by the Keeper of the Rolls in terms of Rule 43.6. On this argument, again, the Court has no power either to refuse permission to a party to call a witness not on a witness list or to impose any conditions on the calling of such a witness. A third argument, less extreme than the other two, is sometimes made to the effect that, in terms of the Practice Note, the Court may impose conditions on the calling of a witness not on a list, but may not prevent such a witness being called. In my opinion, none of these arguments has any merit. In terms of the Practice Note, a restriction on the right to call a witness who is not named on the list of witnesses lodged in accordance with that Practice Note must carry with it, as a matter of clear implication, a restriction on the right to call a witness if no list at all has been lodged. Further, it seems to me that the framers of the new Rule 43 must have had in mind the existence of that Practice Note. They cannot have intended uno flatu to impose a requirement for a witness list to be lodged and, at the same time, to remove any sanction for failure to comply with it. Nor can the power of the Court to impose conditions sensibly be viewed as consistent with the Court having no power to prevent a witness being called if, for example, there are no conditions which would sufficiently protect the other party from the prejudice potentially arising therefrom. I consider that the Practice Note has to be read as applying to the requirements of Rule 43.6 with such modifications as are necessary. In other words, a party seeking to call a witness not named on a list of witnesses lodged in Court in accordance with Rule 43.6 requires the leave of the Court, and the Court may refuse leave or grant it on such terms as it considers fit.

[7] The preferable course, if a party has not lodged a list of witnesses within the time laid down in the timetable issued under Rule 43.6, is for that party to apply to the Court at the earliest opportunity for his list of witnesses to be received though late. Such an application, if made promptly, is likely to be granted, since the likelihood of prejudice having arisen will be small - though an explanation for the failure and an offer of expenses will be expected and, if the fault is that of the agent, the Court may wish to be satisfied that the expenses of the application are not passed on to the client. If the application is made near to the date fixed for the proof, the Court may be more likely to impose conditions on the calling of particular witnesses, to alleviate so far as possible the risk of prejudice. It will only be in the exceptional case that a party will need to resort to Practice Note 8 of 1994.

The pursuer's witnesses

[8] The above discussion serves as a background to the problem that arose in the present case. At the beginning of this four day proof, Mr Stuart, for the pursuer, moved the Court to allow a list of witnesses to be lodged, no pursuer's list of witnesses having previously been lodged. His alternative position was that he was entitled to call witnesses even though no list of witnesses had been lodged, albeit that in terms of Practice Note 8 of 1994 the Court could impose conditions. This motion to lodge a list of witnesses was opposed. The background to the motion, as explained by Mr Stuart and, as I understood it, substantially agreed by Mr Cowan for the defenders, was that the parties had been in negotiations to settle the case for a considerable period. A proof fixed for 15 September 2005 had been discharged. The particular matter causing problems in the attempts to settle the case were to do with the CRU certificate. I need not go into the details of that, nor into the question of whose responsibility it was, ultimately, to resolve such questions. The uncertainty regarding the CRU certificate continued. A new proof date of 4 July 2006 was fixed. On 20 June 2006, with the new proof date fast approaching, the pursuer again moved the Court to discharge the diet of proof. That motion, though unopposed, was refused in hoc statu on the basis that the Court wished to have more information about what had happened since the previous discharge. The parties were, nonetheless, desirous of securing the discharge of the proof. A joint motion for discharge was made. That motion came before a different judge, on 27 June 2006, the proof date being only one week ahead. The joint motion was refused. However, and this is what has caused the pursuer some difficulties, the Court went further and refused the pursuer's opposed motion to have an Inventory of Productions and list of witnesses received late. That list of witnesses had been intimated by the pursuer on 22 June and named four witnesses, namely, the pursuer himself, two GPs who attended the pursuer at his local health centre, and a specialist. The defenders' concern, as I understand it, was based upon the potential prejudice to them of having to deal at short notice with a new area of expert specialist evidence; and their argument focussed on opposition to the inclusion of the specialist on the list of witnesses and the lodging of his report in process. Nonetheless, despite the limited basis for opposition, the Court refused altogether to allow the list of witnesses to be received.

[9] The list of witnesses which Mr Stuart sought to lodge on the first day of the proof before me did not include the specialist to whom I have referred, nor did Mr Stuart renew the application to have the specialist's report received in process. However, the list did include the same three individuals who had been on the previous list refused by the Court on 27 June, namely the pursuer and the two GPs who had attended him. It also included a Mr Tom Russell, a consultant neurosurgeon at the Western General Hospital in Edinburgh. Receipt of this list of witnesses was opposed by Mr Cowan, essentially on the basis that it was an attempt to review the interlocutor of the Court pronounced on 27 June without there having been any material change of circumstances. This ground of opposition applied to the pursuer and the two GPs. Their inclusion on a list of witnesses had been the subject of a specific order by the Court. The position of Mr Russell was somewhat different. He was named on the defenders' list of witnesses; but I was told by Mr Cowan, and I have no reason to doubt, that the defenders had no intention of calling him, presumably because the pursuer had no expert medical evidence to which he was required to respond. Further, his report had been restricted to an assessment of the pursuer's back pain in light of the incident of 15 June 2001. It had not taken account at all of the events of July to September 2001; and the defenders, said Mr Cowan, had no idea what Mr Russell would say about those matters if he was asked about them. They would be prejudiced if the pursuer was allowed to add Mr Russell to his list to speak to all matters on Record.

[10] I considered that Mr Cowan was right in his submission that I could not review the decision taken by another Lord Ordinary when there had been no material change of circumstances. That previous decision, of course, related specifically to a list of witnesses naming the pursuer and the two GPs, as well an expert witness. The list of witnesses proffered at the commencement of this proof contained three of the same people, namely the pursuer and the two GPs. I took the view, therefore, that I had to proceed on the basis that it was not competent for me to allow those three witnesses to be put on a list of witnesses received on the first day of the proof. The position of Mr Russell, who had not featured on the previous list rejected by the Lord Ordinary on 27 June, was rather different, and I shall return to this separately.

[11] I was, however, persuaded that even in respect of the pursuer and the two GPs, this was not the end of the matter. As I have already observed, Rule 43.6 contains no sanction for a failure to lodge a list of witnesses in time or at all. The effect of the interlocutor of 27 June was simply that the pursuers were not allowed to lodge a list of witnesses late. In those circumstances, the provisions of Practice Note 8 of 1994 come into play. Whilst I reject the submission that the pursuer has an absolute right to call a witness, despite him not appearing on a list or there being no list at all, that Practice Note appears to me to entitle the Court to allow a party to call a person as a witness notwithstanding that he is not on any list, subject to such terms as the Court thinks fit. This is in no way reviewing or second guessing the decision to refuse a party permission to lodge a list of witnesses late. Rather it is the second stage, namely the process by which a party who has failed to lodge a list, and perhaps has been refused leave to lodge a list late, can ask the Court to exercise its discretion to allow him, nonetheless, to call a witness. In such circumstances the Court will be guided by what is necessary and just, having regard to the interests of both parties and, of course, to the interests of justice.

[12] On this basis, I had no difficulty in accepting the submission that the pursuer could be called as a witness. It is arguable that the pursuer himself does not need to be put on a list of witnesses, but to my mind the better practice is that he or she should be so named. Be that as it may, it must have been clear to the defenders from the beginning that the pursuer would want to call evidence and they must have been prepared for that contingency. To do him justice, Mr Cowan did not strongly press his opposition to the pursuer giving evidence if, as I have held, I had power to allow this. Nor did Mr. Cowan strongly oppose the pursuer being allowed to call evidence from the two GPs. One of them was on the defenders' list, so it was known what she was likely to say. The other was not on the defenders' list, but Mr. Cowan was content that he be called provided that the defenders were given a copy of his precognition and also that the defenders were allowed the opportunity to precognosce him further before he gave evidence. These conditions seemed to me to be entirely sensible to avoid prejudice to the defenders and they were agreed to by Mr. Stuart. On that basis I allowed the pursuer to call the two GPs as well as the pursuer personally. In the event, only one of the GPs was called to give evidence, but nothing turns on this.

[13] The position of Mr Russell was somewhat different. The interlocutor of 27 June had made no ruling on any list seeking to include him as a witness. It seemed to me, therefore, that I was not in any way constrained by that interlocutor when entertaining a submission that the pursuer should be allowed to call him as a witness. I was, however, concerned with the prejudice to the defenders that would be caused if he was called as a witness on all matters, including matters on which they had not had the opportunity (or possibly the inclination) to precognosce him. In many cases such a problem can be dealt with by an adjournment, possibly even a discharge of the proof. In the present case, in the context of a four day proof, a short adjournment would not have been sufficient to enable the defenders to prepare themselves on an area of the case which they had not previously investigated. I could not discharge the proof, since this would be contrary to the interlocutor of 27 June and would be, in effect, achieving by the back door what had been refused by the front. I decided that the fair order to make was to allow the pursuer to lodge an amended list of witnesses containing only the name of Mr Russell, but on terms that his evidence was to be limited to the subject matter addressed in his report which had been intimated by the defenders to the pursuer, namely the back pain suffered by the pursuer and its link, causatively, to the incident on 15 June. This solution was not wholly satisfactory but it seemed to me that it was the best that could be done in the circumstances.

Limitation

[14] The second problem for the pursuer concerned limitation. The summons was served on the defenders on 13 July 2004, nearly a month after the expiry of three years from the first incident, on 15 June 2001. The defenders in their defences pled that the action in respect of that incident and the injuries arising therefore was time barred. In the ordinary course one might expect the pursuer, during the adjustment period, to respond to that plea, either by setting out facts relevant to establishing a later commencement of the triennium, under section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973, or to aver matters relevant to the exercise of the Court's discretion under section 19A of the Act. It is not uncommon for the discretion to be exercised in favour of allowing a case to be brought out of time in light of appropriate averments by the pursuer, particularly when the delay is short and the action will proceed in respect of other, possibly overlapping, injuries. In this case the pursuer neither adjusted his pleadings nor made any amendments to answer the limitation defence. Accordingly, when the case came to proof, there was on Record an unanswered, and therefore ex facie good, limitation defence to the first of the two incidents sued on.

[15] This difficulty became apparent during the course of the pursuer's evidence on the second day of the proof, when Mr Stuart sought to lead evidence from him as to his own knowledge of the seriousness of his injury and, possibly, as to his own state of mind regarding the possibility of bringing proceedings. Objection was taken that there was no Record for any such line of evidence. After some discussion, and interruption to the evidence of the pursuer (whilst other evidence was interposed) so as to allow time for Mr Stuart to consider the matter, Mr Stuart moved me to allow the Record to be amended by inserting an averment that "the pursuer did not instruct solicitors in connection with, or to raise proceedings against the defenders in respect of, the injury suffered by him as hereinbefore condescended upon until after 15 June 2004", that date being the date of expiry of the triennium. The proposed amendment continued: "In all the circumstances of the case it would be equitable for the Court to exercise its discretion" under section 19A of the Act. Mr Stuart submitted that the relevance of this averment was that the pursuer could not blame his solicitors for the claim in respect of the first incident not having been brought within the three years. That, in itself, could, he submitted, be a sufficient ground upon which the Court might exercise its discretion to allow the action to proceed out of time. Whilst I could readily understand why Mr Stuart had couched the amendment in such limited terms, since going further would have raised all sorts of issues upon which the defenders could properly have said that they wished to investigate the facts, it seemed to me that an amendment in this limited form suffered from the same problem. The problem is that if the Court had been asked to exercise its discretion under section 19A, it must be made aware of all the circumstances, or at least all the circumstances that both the pursuer and the defenders wish to put before it. For the pursuer to seek to amend on the second day of the proof, by making averments about one circumstance only, would put the defenders in an almost impossible position, since the onus would be on the defenders to set out other circumstances which they would wish to contend were relevant to the exercise of the discretion. Those circumstances might involve, for example, averments as to the pursuer's state of knowledge, upon which they might wish to precognosce others, including his workmates, as to what he had said or done at various times before the expiry of the triennium. They might include many other matters. But on the second day of a four day proof it was clearly not possible for the defenders to make the necessary investigations, let alone make informed averments of fact. They came to proof on the basis that their time bar plea had not been answered; and that there was no need to them to investigate any matter relevant to the exercise of discretion since the pursuer had not raised that issue. It seemed to me that it would be quite unfair to the defenders to allow the pursuer to raise these points at this stage, effectively allowing the pursuer to pick his own ground for arguing for the exercise of the discretion under section 19A of the Act and depriving the defenders of the opportunity of putting other relevant matters before the Court. In those circumstances I ruled against allowing the amendment to be made. Mr Stuart sought to add a further averment, namely that "the pursuer was not aware of his entitlement to raise an action nor believe that there were any real prospects of succeeding in such an action until after 15 June 2004". I refused that proposed amendment for the same reason. It put only a partial picture before the Court at a stage where it was too late for the defenders either to investigate that allegation or to put before the Court other relevant matters.

The pursuer's case

[16] In consequence, the pursuer's proof proceeded under two significant handicaps. First, he could not seek to recover from the defenders in respect of any back pain attributable to the incident of 15 June 2001. Second, he had no expert evidence linking his current back pain to the work on which he was engaged between late July and late September 2001.

[17] The pursuer gave evidence as to the accident on 15 June 2001 whilst lifting the cement mixer. In view of what I have said earlier about this part of the claim being time barred, I need not go into the detailed evidence as to how that accident is alleged to have happened. It must not, however, be assumed that any breach of duty would have been established. 15 June 2001 was a Friday. The pursuer's evidence was that on the following Monday he had gone into work to report the accident and "to get it into the accident book". On the Tuesday he did not work. The following day, Wednesday 20 June, he attended at his local health centre and saw a Dr Woolard. He was a locum at the practice and was not called to give evidence. However, his note confirmed that the pursuer had attended on that day reporting a "sudden onset [of] lower back pain this week". The entry also recorded that the pursuer's left shoulder was giving him trouble, which was attributed to the action of lifting slabs whilst levelling in the course of his general duties for the defenders. The pursuer was given a sick line until the end of the month. On 2 July he attended the health centre again and, although there was no entry recording this in the GP records, was probably given another sick line. On 13 July he again attended the health centre. On this occasion he saw Dr Stevens. The entry in the GP records reads: "Back still painful but getting better". The pursuer was given acupuncture. Again, the GP records do not show that a sick line was given, but the pursuer was adamant that one was given and a computer entry generated by the health centre tended to confirm that.

[18] The pursuer's evidence was that this third sick line was for one week only and was endorsed to the effect that the pursuer was able to carry out "light duties only" on his return to work the following week. The computer entry relating to that episode simply refers to "back pain", as though this is all that was endorsed on the sick line. On the other hand, Dr Stevens in his evidence confirmed that he would sometimes endorse a sick line with some expression such as "light duties only"; and he was minded to think that, if the pursuer said that that was what he did, then he probably did that. I do not think that this evidence was wholly satisfactory, but the defenders led no evidence to contradict the pursuer on this aspect of the case and I am prepared to hold on balance of probabilities that the sick line was indeed endorsed "light duties only".

[19] When he returned to work on 23 July 2001, the pursuer was assigned to work on the roof and subsequently to paving and excavating work. He described this as heavy duties, not light work. I accept that description. The concrete slabs which he had to lift weighed about 30 kg each. He also had to carry insulation up some internal stairs which, although not heavy, was awkward to handle. His work would have involved repeatedly bending down and straightening.

[20] The pursuer said that he handed in his sick line to the defenders, so they would have known from that that he was certified fit for light duties only. I heard no evidence from the defenders as to this, and the sick line was not produced, but the likelihood is that it was handed in at a time when the pursuer was still off work for the purpose of recording him as sick, so that he could receive sick pay. In all probability, it was sent to the defenders' Wages or Accounts Department. I do not think that this would necessarily be sufficient in itself to put the defenders on notice that the pursuer was not to be given heavy work. However, I need not decide that because the pursuer said that on being assigned the work on the roof he told the site manager, Mr. Jones, that he was not supposed to be doing this sort of work - he was supposed to be doing "light duties" only. He said that, in response, Mr Jones told him that that was the work he had been assigned to. The general effect of what Mr Jones told him was: "It's the only job we've got for you, you can either do it or you can go home". The pursuer decided to do the work. In light of the pursuer's evidence, and the fact that Mr Jones was not called to give evidence to contradict it, notwithstanding that he was on the defenders' list of witnesses, I am prepared to accept on balance of probabilities that the pursuer did tell Mr Jones on more than one occasion that he was meant to be doing light duties only.

Discussion on liability

[21] It does not follow from this, however, that the defenders were necessarily in breach of a duty of care owed to him not to give him heavy duties. Although a statutory case was pled, Mr Stuart confirmed that in respect of the work carried out between late July and late September, the pursuer pursued only a common law case of negligence. He said that the defenders owed the pursuer a duty of care not to expose him to a reasonably foreseeable risk of injury. He referred me to a passage in Walker, The Law of Delict in Scotland, 2^nd ed. at page 197 to the effect that where the defender actually knows or should reasonably have foreseen that a person of unusual susceptibilities might be injured by want of care on his part, reasonable care involves more care than is normally or usually taken. He also referred me to a passage at page 565 of the same text where it is said that the employer's duty of care is owed to each individual workman, and in organising the system of working the employer must have regard to any known infirmities, weaknesses or peculiarities of particular individuals. Mr Stuart also referred me to the well-known case of Paris v Stepney Borough Council [1951] A.C.367 as authority for the same proposition.

[22] I accept the principles there set out. But it is not clear to me what the defenders were supposed to do which they did not do. I note that, at page 565, Walker states that if the employee knows there is a risk and decides to take it, there is no breach of duty by the employer if the employee suffers injury. This seems to me also to be correct. According to the pursuer's case, the position here was that the pursuer knew that he was unsuited for heavy work. He told the defenders that he was unsuited for heavy work. The defenders said, perhaps not surprisingly given that they are a firm of builders, this is the only work we have got. In those circumstances, if the pursuer says that he will do the work, knowing that it is work for which he is physically unsuited because of his pre-existing condition, I cannot see how the defenders can be criticised. Mr Stuart submitted that the proper interpretation of what Mr Jones told the pursuer was, in effect, that if he did not agree to do that work he would be sacked. This may be correct, although another interpretation might be that Mr Jones was saying: "If you cannot do this work then go back and consult your GP and get another sick note". On balance I do not think that what Mr Jones is reported to have said carries with it the implication for which Mr Stuart contends. However, assuming that it does, so what? I do not see that the position is any different from that of a man who, in applying for work for the first time, seeks employment with a firm of builders who offer him a job doing heavy work for which he is physically unsuited. If he tells them that he is unsuited for that work, why should they not say: "Then there is no job for you here". It seems to me that the pursuer's case against the defenders has become confused as a result of the fact that he was originally suing also in respect of the incident on 15 June. If he had a good claim in respect of that incident, and that incident had caused the back trouble which made him unsuited to the subsequent heavy work, he could properly say that he should not be in a position of being dismissed because of his inability to do the heavy work to which he was assigned at the end of July. But his complaint would then be based upon the defenders' fault in respect of the incident of 15 June which had made him unsuitable for that work. Since he cannot sue in respect of that incident, the better analysis is that he comes to the events of late July onwards on the basis of having suffered an injury through no fault of the defenders. They can offer him work. If he thinks he is unsuitable for it he need not do it, but he cannot complain if they say there is no other work. If he tells them he is unsuited for it, but agrees to do it nonetheless, they cannot be criticised.

[23] Those considerations are sufficient, in my view, to lead me to the conclusion that the pursuer's case against the defenders must fail. But in case the matter should go further, I should deal with other matters that arose during the course of the evidence and submissions. I shall do so briefly.

Causation

[24] The GP records confirmed that the pursuer was visited at home on 28 September 2001 by his doctor. That is consistent with his evidence that he woke up that morning and was unable to get out of bed because of back pain. It is the pursuer's case that he was unable to work from that time until the present day. I am prepared to accept that that is correct. But the question has to be resolved whether that condition resulted from the incident of 15 June 2001, or from the work between late July and late September 2001, or from a combination of both and, if so, to what extent each was contributory. The GP records did not help on this, though they cast some incidental light on matters.

[25] Before looking at those records, it is important to note that the pursuer told me in evidence, and had also told Mr Russell when he was interviewed by him, that he had experienced pain in the lower back some five times over the past twenty years, on each occasion having to go off work for approximately six weeks. The two most recent occasions, at least so far as the GP records revealed, were in 1990 and 1999. Against this background, it is instructive to look at certain entries in the GP and hospital records.

[26] The entry in the GP records for 20 June 2001, when the pursuer first attended the health centre after the incident of 15 June, referred not only to the sudden onset of back pain but also to his left shoulder giving him trouble as a result of his work in lifting and levelling slabs. It contains a remark that the pursuer thinks he has been referred to neurology regarding the numbness and cramps in his legs and knees over the last two years. The entry for 2 July 2001 notes that the appointment with neurology is now fixed for May (2002) but that the doctor would try and bring it forward. There was a discussion about there being no record of the referral in November. This somewhat oblique entry is a reference to the fact that although his GP intended in November 2000 to refer him to the neuro-surgical unit at the Victoria Hospital, she had failed to do so. She therefore wrote to the hospital on 20 June asking for an assessment of the pursuer, and explaining that he has for several months been complaining of numbness in the lower legs and feet and getting some cramps as well as episodes of lower back pain. An accompanying handwritten note asks if the pursuer could be seen fairly quickly, because the earlier failure to refer him had only come to light when the pursuer presented himself at the surgery with his further incident of back pain.

[27] On 4 July, after the pursuer's second visit to the health centre, his GP wrote to the neurology department at the hospital asking them to see the pursuer urgently since she was concerned that he has been complaining of lower back pain "which has deteriorated recently"; and was also complaining of cramping pain in his calves when he walks and numbness in both lower legs. The letter went on:

"Unfortunately he has not been allocated an appointment until 22.5.02 and tagged on to his previous referral this gentleman was to have been referred to yourselves in November of last year but we can find no record of this occurring".

In fact, the Department of Neurology at Victoria Hospital was able to see the pursuer on 8 August. The letter from the consultant neurologist reporting upon this meeting identified the problems as "probable peripheral neuropathic disturbance. Associated back pain". The letter went on to say:

"I think you are correct that there is a neurological problem affecting his lower limbs. He has predominantly a peripheral neuropathic disturbance with loss of light touch, pinprick and joint position sense below the knees bilaterally. There is no loss of strength however although the reflexes in the knees are very sluggish. Of late he has had some low back pain which might indicate some problem in the region of conus".

An MRI scan was carried out.

[28] On 25 September 2001, just before the day on which the pursuer was unable to move in the morning, his GP wrote to the Department of Neurosurgery at Ninewells Hospital asking for the pursuer to be seen. The letter explained that he had been attending the neurologist for investigation of numbness in his feet and had recently had an MRI scan. Since the MRI scan, the letter continued, the pursuer had had a considerable deterioration in his symptoms with lower back pain and right sciatic pain. It went on to say that there was a slight weakness in his right leg but he had no sphincter disturbance, and wondered whether he had a worsening of his disprolapse.

[29] He was seen at the Department of Surgical Neurology at Ninewells Hospital on 20 November 2001. The letter from the Department to his GP identified his "current problem" as "a four week history of right leg pain and associated back pain". This period of four weeks would take the matter back to approximately the time when the pursuer was unable to work at the end of September. The letter continued that "the pain radiates down the anterior thigh and he has felt that he is dragging his legs". It noted that he was being examined for neurological problems. It concluded that he was "being appropriately investigated" by the consultant neurologist.

[30] A letter of 21 November 2001 from the consultant neurologist gave the results of an EMG study on the pursuer. It diagnosed a fairly severe lumbosacral polyradiculopathy. It suggested that the main problems lay at the level of the nerve roots rather than a diffuse peripheral neuropathy, which was the consultant's original suggestion when he saw him in August. It was recommended that the neurosurgeons should be made aware of the problem.

[31] There is no hint in any of the medical records that the pain which the pursuer was experiencing at that time was connected in any way with the work to which he was assigned between July and September 2001. It is clear that he never suggested to his GP that it was anything to do with this.

[32] The only expert medical evidence led was that of Mr Russell, who is a consultant neurosurgeon. As I have said earlier, his report, which the pursuer lodged in process, focused on the pursuer's present condition insofar as it related to the incident of 15 June 2001. The condition of which the pursuer complained to Mr Russell was a low back pain which was constant and nagging in nature and which was improved by analgesia but made worse by sneezing and bending. However, Mr Russell's conclusion in his report was that the pursuer had an exacerbation of low back pain as a direct result of the incident in June 2001. He concluded that there was no acute nerve root damage accompanying that pain and that the pain was entirely mechanical in origin. He said that it was his opinion that the pursuer's present attack of low back pain was merely a continuation of his known problems with his lower back. He added this:

"For someone with a significant history of low back pain, Mr Quigley was working at the wrong job and it is my opinion that sooner or later he would have had to give up his occupation as slab layer because of low back problems".

[33] In view of the ruling that he could not examine Mr Russell in relation to back pain caused by the work which the pursuer undertook between late July and late September 2001, Mr. Stuart sought to lead Mr Russell on the question of "acceleration" of his injuries. However, there was inevitably a difficulty in the questions being so confined, and in the course of the examination in chief I upheld an objection to Mr Russell being referred to the averments in Article 5 concerning the work in the period July to September 2001. As I understood his evidence, Mr Russell confirmed his evidence that the pursuer's present back pain could be dated back to the events of 2001, by which I took him to mean the events of June 2001 which he had covered in his report, and that it was also a continuation of his known history of multiple attacks. As he emphasised again, people with a history of back pain should avoid heavy work because heavy work will pre-dispose them to another attack. Mr Russell said that a person in that condition and with that history of back pain might work for several years before doing something "silly" so as to trigger another attack. I understood this to be in answer to a question about his past record of back pain and the significant gap between 1990 and 1999; rather than a prognosis that but for something happening after June 2001 Mr Russell could have been expected to work for a considerable period without further back pain. Mr Russell was asked whether the pursuer was likely to recover from the episode of pain if there was no further insult. There was an objection to this line, but before that objection was made my note of Mr. Russell's evidence, and those of parties in Court, was that it rather depended upon what was meant by "light duties". That led, of course, directly into the averments relating to the events of July to September 2001, which were off-limits for the pursuer in respect of Mr Russell's evidence.

[34] From this inevitably limited evidence, Mr Stuart sought to construct a case to the effect that the work which the pursuer was required to undertake between July and September 2001 had accelerated the pursuer's injuries. He accepted that the pursuer would not have worked until the age of 65. But he sought to suggest that despite the back pain suffered as a result of the June 2001 incident, the pursuer might have worked for several years but for the later heavy duties to which he was assigned in July to September that year. For this he founded upon the answers from Mr Russell to which I have referred. But for being put back on heavy work, he submitted, the pursuer was good for another several years. He said the question for the Court to assess was: how long would the pursuer have managed to work but for having been assigned to heavy duties in July to September 2001?

[35] This is a question which, to my mind, is incapable of answer on the present state of the evidence. There was no expert evidence linking the heavy duties to which the pursuer was assigned in July to September 2001 with any exacerbation or acceleration of his back pain. The contemporaneous medical records suggest no such link. In terms of the referrals by his GPs, the suggestion is that they were regarding it as part of a long-term problem with either neurological or neurosurgical implications. Mr Russell, who gave the only expert evidence, gave no evidence at all causatively linking the work on which the pursuer was engaged during that period to the injuries of which he presently complains. He could, however, link those injuries to the incident alleged to have happened on 15 June 2001. The only matter upon which Mr Stuart could rely was an answer to the effect that the pursuer was likely to recover from his injuries to some extent if there was no further insult. But it is going much too far to derive from this a finding that, by inference, it must have been the work between July and September 2001 which brought on the further pain. I simply cannot accept that such a case is made out on the evidence.

[36] On this basis I am not prepared to make the findings sought by Mr Stuart. On the evidence as it stands, I cannot find that the pursuer's current problems were caused or contributed to by him undertaking the duties to which he was assigned during the period from July to September 2001. It follows, therefore, that even if I had held that the defenders were negligent in assigning those duties to him, I would have held that that negligence was not shown to have caused any loss or damage.

Quantum

[37] In those circumstances it is unnecessary for me to deal with the issues of quantum raised in argument. Parties helpfully agreed a joint minute dealing with the pursuer's earnings so that, if the matter should go further, there is material upon which agreement can be reached or a judgment made about these matters. I was treated to an interesting argument as to how one should approach a case where a person with a pre-disposition to injury had that injury "accelerated" by a breach of duty on the part of the defenders. In that context, I was referred not only to the valuation for an award in respect of back pain, but also to the approach of Mustill, J. in Thompson v Smith's Ship Repairers (North Shields) Limited [1984] Q.B. 405 at 437-448; and that of the Court of Appeal in Rugby Joinery UK Limited v Pamela Whitfield [2005] EWCA Civ. 561. Had I reached this stage of my decision-making, I would have adopted an approach which endeavoured to reflect the additional injury caused by the events in July to September, that additional injury being the acceleration, rather than the increase in gravity, of the back pain. However, I do not need to say any more about this matter.

Conclusion

[38] In the circumstances, since the pursuer has not proved his case, I shall simply grant decree of absolvitor.