HENRY WYSE RODGER (AP) v. C & J CONTRACTS LIMITED
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 47 |
| A103/00 | OPINION OF LORD EMSLIE in the cause HENRY WYSE RODGER (AP) Pursuer; against C & J CONTRACTS LTD Defenders: ________________ |
Pursuer: Di Rollo, Q.C., Haldane; Balfour & Manson (for McKenzies, Kirkcaldy)
Defenders: J.L. Mitchell, Q.C., Young; Simpson & Marwick, W.S.
30 March 2005
Introduction
[1]On 3 October 1997 the pursuer, who was then aged 48, accidentally fell some 4.5 metres through the fragile roof of a partially-constructed farm building near Pencaitland, East Lothian. He landed on a concrete floor below, and was badly injured. In the present action, he claims damages from the company by which he maintains he was employed at the material time. The fact of the pursuer's fall and the severity of his injuries are not in doubt, nor is there any live dispute between the parties as to the absence of safety measures at the locus which might have avoided or reduced the risk of such an accident occurring,. However, the parties are severely at odds regarding (a) the nature of the work which the pursuer was doing at the time of his accident; and (b) the veracity of his claim to have been an employee of the defender company. As more fully discussed below, the defenders maintain that at that time of the accident, and for several days previously, the pursuer had been engaged in the manual task of fixing roofing sheets, and that his claim to have been on the roof in a supervisory capacity is untrue. More seriously, the defenders maintain that the pursuer and his son, Craig Rodger (the former managing director and principal of the defender company), have fraudulently asserted the existence of a formal contract of employment in the pursuer's favour. In both respects, according to the defenders, the pursuer has dishonestly sought to bring himself within the scope of the company's employer's liability insurance policy, and to deceive the Court into awarding damages on that footing. The pursuer vehemently denies these allegations.
[2]The action was raised in January 2000 and, after sundry procedure, I heard a Proof before Answer over a total of 16 days in September/October 2003 and October/November 2004. On either side of the extended break between the main parts of the proof, I allowed both parties to adduce further witnesses and productions relative to the principal issues in controversy between them.
[3]The general background against which these principal issues fall to be judged was not materially in dispute during the proof, and is summarised at paragraphs [4] to [8] below.
Background circumstances
[4]After some two decades as the principal of Fife Metal Structures Ltd, a company specialising in inter alia steel-frame building construction, the pursuer was struck down by anxiety and depressive illness from 1993/94 onwards. Shortly after the onset of this illness, his company went into receivership. In the period which followed, the pursuer's son (who was then only in his mid-20s) started up a business in the same general field of activity under the name "C & J Contracts". From time to time between 1995 and 1997, as and when he felt up to it, the pursuer would help out in his son's business in what he saw as a relatively stress-free role. This involvement was occasional, informal and unpaid. He would, for example, assist with the checking of estimates, answer the telephone in the office, and sometimes also provide general advice and guidance to sub-contracted personnel on site. However, the pursuer and his son did not always see eye-to-eye on business matters; work-related stresses continued to affect the pursuer on an intermittent basis, particularly during 1996; and even though he maintained that, by 1997, his condition had improved, it is clear that he was still far short of making a full recovery. He continued to make frequent visits to his doctor with a variety of complaints and, although remaining unaware of some of these visits, his wife Mrs Linda Rodger was unhappy about the degree to which he had again allowed stress levels to build up. In the autumn of 1997, she reacted unfavourably to the suggestion that he might return to work for their son on a more formal basis, and her anxiety in this regard was understandable when set against the nature and frequency of the pursuer's visits to his doctor over the preceding three months. As evidenced by entries in the doctor's records No. 7/3 of process, the pursuer attended the surgery on 17 June 1997 requiring medication for anxiety and depression; on 17 July 1997 with skin rashes; on 21 August 1997 for a prescription of Diazepam; and on 24 September 1997 for further support in connection with "general nerves". On the last of these occasions, he was recorded as "going to bed at night and not wanting to wake up", and as being "in a bit of a state" and unable to speak. By this time he had been formally signed off work, and in receipt of incapacity benefit, for nearly four years, and his doctor does not appear to have been made aware of any imminent plan to return to work.
[5]By the autumn of 1997, apparently without the knowledge of any other member of the family, the pursuer's son's business was in serious difficulty. Only one job was on the books, namely the erection of the second of two sheds at Nisbet Farm, Pencaitland. In addition, there were two prefabricated buildings in the yard that could potentially be sold, and Craig Rodger was still actively looking for further work although without any obvious success. As a result, debts to trade and other creditors were mounting up, and the business had no liquid funds with which to pay employed or sub-contracted personnel. Shortly before the pursuer's accident it seems that Harry Biggar, the sub-contractor engaged on the Nisbet Farm job, walked out over a financial dispute. In response to such pressures Craig Rodger, without the benefit of legal or other professional advice, decided to incorporate the business as a limited company. He appears to have believed that this would somehow divest him of his personal liability for the claims of creditors, although he still intended to trade out of the crisis if he could, and the formal steps necessary to achieve the incorporation of a company were taken within about the first ten days of September 1997. Thereafter, he set about advising third parties in writing of this business change, with many (but not all) letters and faxes being sent out on pre-incorporation business notepaper with typed additions comprising the name, address and registration details of the new company. Some of these were typed in the office by the pursuer's daughter, Mrs Kelly Taylor, while others appear to have been prepared by inter alios the pursuer's son himself. Examples of such communications were Nos. 7/34 and 7/35 of process, addressed to a farmer near Peebles in October 1997; and No. 7/39 of process, addressed to the Finance Department of Fife Council on 24 September 1997.
[6]Up until this point, all site construction work was entrusted by the pursuer's son to independent contractors. No-one was employed in the business to do anything other than administrative or supervisory work, and accordingly the relevant employer's liability insurance cover did not extend to manual labour. In consequence of this restriction, a reduced premium was payable. Any claim upon the policy would thus require to relate to an employee carrying out work of a non-manual nature or at least engaged in a non-manual capacity. Regrettably, however, with the exception of a standard form schedule No. 7/23 of process, the policy documents were not lodged as productions in this case, and their precise terms must therefore remain a matter of speculation.
Uncontentious features of the pursuer's accident
[7]It was not in dispute that on the morning of Friday 3 October 1997 the pursuer fell through fragile roof sheeting on to a concrete floor below. Immediately prior to his fall he somehow lost his balance, or his footing, on the narrow horizontal valley gutter which lay, at eaves level, between the adjacent sloping roofs of two steel-framed farm buildings positioned side by side. One of these buildings had been completed some months earlier, and the other was still in course of construction, with a proportion of one slope of the roof yet to be sheeted over. As a result of his fall, the pursuer sustained very severe spinal, pelvic and other injuries which rendered him permanently disabled and unfit for anything more than therapeutic part-time work in the future. Joint Minutes entered into between the parties (Nos. 37 and 38 of process) not only agreed the principal medical evidence relative to the pursuer's injuries, but also helpfully went on to agree the valuation, inclusive of interest to 15 October 2004, of all aspects of the pursuer's present claim other than loss of earnings. On that basis, solatium was valued at £65,000; past and future services in terms of section 8 of the Administration of Justice Act 1982 at £43,000 and £58,000 respectively; and past and future equipment and outlays at £10,000 and £25,000.
[8]In addition, the defenders did not take issue with evidence tending to show that the precautions taken at the locus to avoid or prevent falls through fragile roof sheeting were inadequate and deficient. In substantially unchallenged testimony on Day 4 of the proof Andrew Wyles, a safety consultant led on behalf of the pursuer, described how the provision of protective boards or barriers was essential, both at common law and under the Construction (Safety, Health and Welfare) Regulations 1996, if the known and obvious risk of such falls was to be addressed. Such precautions were simple, practicable and effective, and were entirely absent in this instance. Accordingly, the organisation under whose direction and control the relevant work was being carried on would incur liability to an employee or other individual to whom the applicable common law and statutory duties were owed.
[9]In the context of liability, the defenders' fourth and fifth pleas-in-law respectively alleged sole fault and contributory negligence against the pursuer. However, the defenders did not at any stage seek to contend that, esto the pursuer was employed as general manager of the company as he claimed, he should be held wholly or partly responsible for the obvious lack of safety precautions on the roof at the time of his accident. Their averments in Answer 3 were directed only to the manner in which the pursuer contrived to fall but, in the event, even these were not followed up in the course of the proof and I was not asked to consider sustaining either of the relevant pleas. In these circumstances, neither sole fault nor contributory negligence on the part of the pursuer remains a live issue for determination in this case.
Principal disputed issues
[10]The pursuer's case was simple. According to him, he was employed as general manager of the defender company within a short time after its incorporation in September 1997. This claimed employment formally took effect from 1 October 1997, and followed repeated invitations to return to work for his son full-time. In the days leading up to the accident, therefore, his visits to the Nisbet Farm site were in an employed managerial/supervisory capacity, although this would also involve him in giving incidental assistance with physical work from time to time. In any event, according to the pursuer's senior counsel, the relevant Regulations applied, not only to employees, but to all individuals performing work under the direction and control of a responsible organisation. In that connection, he referred me to the terms of the Regulations themselves and also to the case of Lane v Shire Roofing Co (Oxford) Ltd 1995 IRLR 493. It was submitted that whatever might be said of the pursuer's status, his presence at the locus was clearly not as the proprietor of a business or as a self-employed person. On the contrary, the work was being carried out by the defender company, and in fact and in law it was the company which exercised direction and control over all aspects of that work.
[11]As previously indicated, the defenders' main contention was that the pursuer's alleged contract of employment was fictitious and did not exist as at the date of the accident. According to them, the pursuer's claim to have been employed as general manager of the defender company was part of a fraudulent scheme between him and his son to deceive the Court and thereby dishonestly obtain the benefit of the company's employer's liability insurance policy. In particular, the supposed documentation to vouch the pursuer's claimed employment had been prepared on company-headed notepaper which was not even ordered until December 1997. Over and above that, the defenders maintained that on the day of the accident, and indeed for some days previously, the pursuer had been working on the partially-sheeted roof in a manual capacity along with an independent contractor, Thomas Birrell. If these contentions were right, it was argued, then the pursuer had failed to prove the fundamental basis of his claim on Record and was in no position to found on the theoretically wide ambit of the relevant Regulations. Broad issues of direction and control had neither been averred nor explored in evidence on either side, and the Court was not entitled to reach a decision on such a basis in the pursuer's favour. Senior counsel went on to submit that these two principal issues concerning the pursuer's employment and the nature of his work on site were critically inter-connected, in the sense that a conclusion adverse to the pursuer on either issue should almost inevitably lead to an adverse conclusion on the other.
[12]According to the defenders, the true position regarding the work at Nisbet Farm was (i) that after recently losing their regular sub-contractor Harry Biggar, the defenders were having difficulty in finding a suitable replacement; (ii) that although another sub-contractor, Thomas Birrell, had been engaged he had no assistant to work with him; (iii) that the need to provide someone to work with Thomas Birrell explained the pursuer's urgent deployment on the site in the days before the accident; (iv) that (as reflected in a signed statement by Thomas Birrell to an insurance claims superintendent on 24 April 1998) the pursuer was actually fixing the roofing sheets in position while Thomas Birrell fetched and carried them; and (v) that the accident occurred as the pursuer walked along the valley gutter preparatory to receiving a fresh load of sheets which were being raised to roof level by a forklift truck driven by the farmer's son, Charles Young. The defenders thus contended that, on a proper evaluation of the evidence, the pursuer was engaged full-time, or to a substantial extent, in manual work during the course of that week, and that any witness purporting to say otherwise was either lying or mistaken.
Evaluation of the principal witnesses
[13]It can be said at once that evaluating the evidence in this case has proved to be an unusually difficult exercise. Evidential problems arose in connection with all of the key disputed issues, and virtually every witness was subjected to searching criticism by senior counsel for the defenders at the close of the proof.
[14]In particular, I have found the pursuer an extremely difficult witness to assess. Not only was he badly disabled by the injuries sustained in the accident, but he must also have been affected, to some material degree, by the variety of drugs, including methadone, which were still being prescribed for him. Throughout much of his evidence his speech and responses were slow and lethargic; on many occasions he complained of his memory having been adversely affected since the accident; and there were many questions to which he contrived to give a series of contradictory answers, apparently without noticing, within a short space of time. As against that, however, he managed to maintain his ability to concentrate over the best part of three days in the witness box; the periods of drowsiness referred to in various professional reports were not obviously evident; and in certain areas he appeared not to suffer from any great deficit in memory or concentration at all.
[15]At best for the pursuer, I formed the view that he was an unreliable witness whose evidence (unless supported from elsewhere) could not safely be taken at face value on contentious issues. Two illustrations of the problem may suffice. First, while he was in no doubt that the document bearing to be a contract of employment (No. 7/24 of process) had been signed by him on or about the date which it bore, his initial position was that the date itself was not in his handwriting, and did not look like his handwriting. Almost immediately thereafter, he suggested that maybe it was his handwriting, explaining that his writing and signature had "totally changed" since before the accident. In cross-examination, he volunteered that the date was in his own handwriting despite his previous doubts, but shortly thereafter qualified that by saying that he was not 100 per cent certain, that he did not know and could not say whose handwriting it was; that his figure "9" was only a wee bit like the ones in the date; that on reflection he did not do a "9" that way; and eventually that he thought the handwriting was that of his son, Craig. There was, he added, "... no great reason" why he had previously said the writing was his, and he did not write like that now.
[16]Second, when confronted with his son's letter No. 7/26 of process, dated in mid-September 1997 and referring to a non-existent job application and interview, the pursuer's initial pointed response was that he had never seen it before. Almost immediately, however, he appeared to acknowledge having seen it among legal documentation. He then successively maintained that he had maybe seen it, but could not remember; that he had not in fact seen the document before; that he might have seen it; that he could not recall seeing it; and that he could perhaps have seen it without paying attention. Thereafter, shortly after going back to saying that he had never seen it before, he volunteered that he had actually come across the document among papers at home, but that he had not seen it at the start before commencing employment with the defender company. In answer to questions from myself, he again confirmed that he had come across the letter in recent weeks in a file at home, mentioning that he had been surprised at its terms and had not previously realised that such a document existed. Almost at once, however, he went back to saying that he might have seen it earlier, although he could not recollect this; that he could not say that he did not see it then; but that he never received the letter at that time. He finally denied the defenders' suggestion that he had not seen the letter at that time because it had simply never been sent.
[17]As I listened to the pursuer's evidence on these and other matters, I initially wondered whether his repeated changes of position might be attributable to something more sinister than the effects of memory loss and medication over a protracted period of time, such as, for instance, a deliberate intention to avoid committing himself on contentious issues on which perjury and fraud were being alleged by the defenders. As time went on, however, I came to the conclusion that that was intrinsically unlikely. The pursuer's demeanour at the relevant points of his evidence did not strike me as devious or shifty; if perjury had been his intention, he might reasonably have been expected to follow some discernible prepared line, but he certainly was not doing that; some of the statements and qualifications that he volunteered were arguably against his own interest; and ultimately, as it seemed to me, much of the apparent confusion could plausibly be put down to reluctance, on the pursuer's part, to be dogmatic about events many years ago to which he may not have given much thought at the time and on which he had no clear recollection now.
[18]For different reasons I also found the pursuer's son, Craig Rodger, a difficult witness to assess. In particular it was clear that, despite his young age and his lack of any obvious business or legal training or expertise, he had taken certain important steps in the autumn of 1997 without the benefit of professional advice in any form. These steps included the hurried incorporation of a limited company to take over his ailing business, apparently in the belief that this might cause personal debts to fly off and be transferred to the new company. According to the family witnesses, such steps also included the formal employment of the pursuer as general manager of the company, in which connection Craig Rodger was apparently influenced to some degree by pressure from his mother (the pursuer's wife) Mrs Linda Rodger. In addition, seven years on, some of Craig Rodger's evidence as to what precise role he had played in generating the critical employment documents, in incorporating the new company, or in completing the insurance claim form following the pursuer's accident, was expressed in terms of what he "would" or "must" have done as opposed to what he actually did. Craig Rodger's actings over the period in question could therefore not be judged in the same way as might have been appropriate if he had presented as a capable businessman acting on the basis of professional advice. Indeed, his apparent lack of business competence might be thought to open the door to explanations of events, and of the terms of documents, which could otherwise have been difficult to accept.
[19]In the latter context, one of the principal causes for concern was the bizarre nature of the documentation which was said to embody the pursuer's employment arrangements with the defender company. No. 7/24 of process bore to be a formal contract of employment signed and dated on 30 September 1997, and No. 7/26 of process bore to be an earlier letter confirming the pursuer's success in securing employment with the company, and purporting to enclose a draft contract for his consideration. However, the former document included reference to a salary of £25,000 plus bonuses which, at that time, the company was in no financial position to afford. It also contained multiple detailed clauses regulating inter alia holiday entitlement, sick pay, pension rights and grievance procedures, none of which appeared to have any obvious relevance to the special position of the pursuer. Several clauses, for example, bore to oblige him to raise matters with his "manager", despite the fact that, as general manager of the company, there could have been no-one to fit that description. As regards the latter document, it appeared to compound the problem by referring to a non-existent job application and interview; by mentioning the enclosure of a draft contract when, according to the family witnesses, that was first produced at a meeting in the pursuer's house; and by being expressed in terms more suited to an arm's length transaction between strangers than to an arrangement between father and son. Its date was also hard to reconcile with the recollection of members of the family that the two documents were more or less contemporaneous.
[20]As previously noted, the pursuer's evidence was confused and unsatisfactory on the subject of these documents. For his part, Craig Rodger explained that he had produced them himself without professional assistance, and that their terms reflected his impression of what employment documents ought to contain in order to do things "... in the correct formal manner" or "... on the right footing". In producing No. 7/24 of process, however, he had relied heavily on a style or specimen provided by a friend. The pursuer's wife, Mrs Linda Rodger, appeared somewhat reluctant to discuss these documents, claiming that although she had filed the contract of employment she did not actually remember seeing it signed, and also that she had not examined either document or checked its terms. She did, however, appear to be aware that the contract of employment contained some inappropriate provisions, and conceded that the earlier letter made no sense and did not fit in with her recollection of events at that time. The pursuer's daughter, for her part, merely denied that she had had any hand in the typing of either document.
[21]Against that background, it is perhaps not difficult to understand how the defenders could have come to regard this aspect of the case with a sceptical eye. At first sight, there are many questionable features which may be thought to call for explanation. However, the real question is whether the evidence led at the proof, taken as a whole, is sufficiently clear and cogent to take me beyond feelings of unease and suspicion in this fiercely contested area, and to persuade me that the pursuer and his son are guilty of carrying through a fraudulent scheme designed to deceive the Court and dishonestly obtain damages from the defenders' insurers.
The employment issue
[22]In my judgment the pursuer has succeeded in proving, on the balance of probabilities, that he was employed by the defender company shortly before the accident to which this action relates, and that his presence on the partially-sheeted roof at Nisbet Farm on 3 October 1997 was in that employed capacity. The averments which lie at the heart of his claim for damages from the defenders are accordingly made out. Correspondingly, I hold that the defenders have failed to establish their contention that the pursuer's account of having been employed by the company was deliberately false, forming part of a scheme to deceive the Court into making an award against the company's insurers. Clearly the onus lies on the pursuer to establish employment as an essential element of his claim on Record. By contrast, the serious allegation of fraudulent conduct on the part of the pursuer and his son is a matter which the defenders have raised, and on which (as I understood them to concede) the burden of proof must necessarily fall on them. On all aspects of a civil case such as this one, the relevant standard of proof is the balance of probabilities, but it is well settled that where fraud or other criminal conduct is put in issue, that standard can only be satisfied by evidence which is of particular strength and cogency: First Indian Cavalry Club v HM Customs & Excise 1998 SC 126 (esp. per Lord Hamilton at 137H - 138B); and Mullan v Anderson 1993 SLT 835. In the last-mentioned case Lord Penrose (at 851E - F) recognised that to establish certain facts may require evidence of particular weight, and by way of illustration suggested that "careful and precise" proof would be required to rebut certain presumptions. He then continued:
"In some cases one may have an allegation which, of its very nature is, or appears to be, improbable. It would require evidence of more significant weight to persuade one that a fact of that nature was probably true than it would to persuade one to the same standard that a commonplace event had occurred".
[23]The evidence on which the pursuer relied on this part of the case came, in the first place, from himself and his wife, son and daughter, all of whom broadly confirmed that his employed status predated the accident on 3 October 1997. In the second place, reliance was placed on evidence from Thomas Mitchell and Thomas Ness, both local farmers and businessmen who spoke to the receipt of correspondence, in September and October 1997 respectively, on company-headed notepaper similar to that on which the pursuer's contract of employment No. 7/24 of process was printed. The defenders, on the other hand, invited me to reject all of that evidence as incredible and unreliable, maintaining (i) that in various respects the surrounding circumstances were not consistent with the claimed employment of the pursuer at the material time; (ii) that the relevant company-headed notepaper did not exist in September and October 1997, the order having been placed by Craig Rodger with the printers on or about 1 December of that year; and (iii) that the pursuer's claim to employed status at the time of his accident was thus a deliberate fraud on the Court and on the defenders' insurers.
[24]As previously mentioned, the pursuer himself struck me as a generally unsatisfactory witness whose evidence in places raised questions as to his credibility and reliability. His evidence concerning the documentation surrounding his claimed employment was particularly unimpressive. However, it is fair to say that he was quite clear and consistent on the matter of his change to employed status having predated the accident. What he said on that score was broadly supported by his wife who, albeit with some reluctance, confirmed that it was she who had pressed for a formal arrangement in order to avoid any repetition of the trouble which her husband had encountered shortly after the demise of Fife Metal Structures Ltd. At that time, the absence of a formal contract of employment had created unnecessary difficulty in the pursuit of employment tribunal proceedings. Mrs Rodger also gave some evidence of steps which she claimed to have taken, both before and after the date of the pursuer's accident, to advise the DSS of his new employed status. However, as indicated in paragraph [20] above, she was clearly unwilling to accept that she had seen the contract of employment signed or had any opportunity to examine its terms. The defenders did not aver that Mrs Rodger was part of the fraudulent scheme which they alleged, nor do I think that it was directly put to her in the witness box that she was lying on all of these aspects of her evidence. And while it is true that, at the conclusion of the proof, senior counsel for the defenders invited me to consider finding Mrs Rodger guilty of perjury in connection with the pursuer's alleged employment prior to the accident, he also sought to place "great reliance" on her recollection to the effect that the pursuer had been employed as a matter of urgency because a contractor had let Craig Rodger down.
[25]In all the circumstances, I am not persuaded that I should hold Mrs Rodger to be a generally incredible or unreliable witness. On the contrary, it seems to me (i) that she may truly have had little or no involvement with Nos. 7/24 and 7/26 of process at the material time, thus explaining her reluctance to accept otherwise in the witness box: (ii) that another area in which she appeared reluctant to commit herself in evidence concerned a matter of emphasis, namely whether she had positively insisted on the execution of a formal written contract, as opposed to merely having made her views known in that connection; (iii) that although her evidence about notifying the DSS sounded unconvincing, there was no evidence from any other source to confirm the true position and (iv) that, even accepting at face value her evidence about the urgency of the pursuer's employment, I do not consider that that is necessarily inconsistent with the pursuer having been engaged as general manager in circumstances where a new sub-contractor might need more than the usual degree of supervision. Moreover, because of the late stage at which the defenders sought to introduce their suggestion that the company-headed notepaper did not exist at the relevant time, and because of the absence of any application to recall the pursuer or Mrs Rodger in that connection, I am left in the dark as to whether, and if so to what extent, this issue might have impacted upon the tenor of their evidence.
[26]The pursuer's son Craig Rodger also confirmed, in clear and positive terms, that his father's employment predated the accident, and the evidence of Mrs Kelly Taylor, the pursuer's daughter, was emphatically to the same effect. In order to reject this fundamental aspect of the pursuer's claim, it would thus be necessary for me to reject the relevant evidence, not merely of the pursuer and his wife, but also of both of these witnesses as incredible or at least unreliable. However, on a careful assessment of what they said, and of their demeanour in the witness box, I am not persuaded that I would be justified in doing so.
[27]Mrs Taylor in particular struck me as a straightforward and forthright witness with business experience. She had held employment with the Bank of Scotland in a responsible capacity for the last seven years, and had worked for the pursuer when he previously traded as Fife Metal Structures Ltd. In 1996/7 she regularly helped out with office work in her brother's business, and agreed to become a director of his new company. According to her, she was aware of employment discussions between her parents and brother in the period before the pursuer started work with the defender company. She also recalled having refused to type out a formal contract of employment at that time when asked to do so by her brother Craig in terms of a draft in his possession. Moreover, she had personally sent out letters in and after September 1997 advising business customers of the change of status, both on new company-headed notepaper and on pre-existing paper with typed alterations. In the face of vigorous cross-examination, she spoke calmly, clearly and emphatically to (i) the existence and availability of samples of the company-headed paper at about the time when the company was first incorporated, mentioning that she recalled them being contained in a small box; (ii) the way in which both old and new forms of notepaper were thereafter used interchangeably in correspondence; and (iii) the fact of the discussions regarding the pursuer working for the company having taken place before, and not after, the accident. She also confirmed that her mother was not keen on the idea of the pursuer and her brother Craig working together on a formal basis, although the pursuer had obviously been helping out informally for some time already. In these various respects I considered Mrs Taylor to be an impressive witness who appeared to be telling the truth to the best of her ability, and in the absence of positive proof to demonstrate that her account of events must be either untrue or mistaken I have no reason to disbelieve what she said. Once again the defenders ended up inviting me to consider finding Mrs Taylor guilty of perjury without having directly put that allegation to her in cross-examination.
[28]Thomas Mitchell and Thomas Ness were led as additional witnesses for the pursuer during the second part of the proof in October/November 2004. The general tenor of their evidence was along the lines that, when recently asked for assistance by either the pursuer or Craig Rodger, they had searched their business records and discovered apparent communications, addressed to them in September and October 1997, which were printed on the same company-headed notepaper as had been used for the pursuer's employment documentation. Mr Mitchell was a former landlord of C & J Contracts, and was particularly clear about having found the letter No. 6/19(i) of process in his filing cabinet after having been asked by the pursuer to see if he still had any documentation from that time. Not surprisingly, Mr Mitchell could not actually recall the date on which that letter was received, and no receipt date was marked on it, but he insisted that it came from his filing cabinet and that he had no reason to think that it had not been received in the ordinary course of post. According to him, it was the pursuer and not Craig Rodger who had approached him with the initial request, whereas Craig Rodger's recollection in the witness box was that he personally had taken that step. Be that as it may, I do not regard such a peripheral disagreement as sufficient to indicate that Mr Mitchell was deliberately lying about the provenance of the letter in question, nor as materially damaging Craig Rodger's credibility and reliability on the principal disputed issues in this case. And since this evidence materialised long after the pursuer had left the witness box, I do not think that it damaged his credibility and reliability either.
[29]Mr Ness was a retired poultry and pig farmer who spoke to having sought and obtained a quotation from Craig Rodger in 1997 for repair work on one of his farm buildings. He claimed to recall that this had occurred either before or after his usual holiday in late September/early October, and went on to identify No. 6/20 of process as the quotation in question. According to him, Craig Rodger had recently telephoned to ask if he still had any documentation from the relevant year, and it was fortunate that his records for 1996 and 1997 had not yet been shredded following the closure of his business. His wife had found the quotation, and he thought that it had then been passed to Craig Rodger. The quotation had not in fact come to anything at the material time, and after so many years Mr Ness could not recall the precise extent of the work to be performed, but he insisted that the document genuinely came from his files and that he had no reason to believe that it had not arrived in the ordinary course of post. All of his other records for 1997 had, he said, now been destroyed. It is true to say that Mr Ness was at times an uncooperative witness, reacting unfavourably to being quizzed about the circumstances in which the quotation came to light and about the nature of the work to which it related. He also gave the impression of having little recollection, not just of the events in 1997 to which he was being referred, but also of exactly what had happened in 2003/4 when Craig Rodger's request was received out of the blue. For example he appeared unable to say what reason, if any, Craig Rodger had given for his request, or whether he had identified any specific document to be searched for. Moreover, he was not 100 per cent sure that it was his wife who had found the quotation, nor if he himself had seen it before she (as he assumed) passed it to Craig Rodger. According to him, however, his memory was generally poor and he was hard of hearing; the primary impression which he gave in the witness box was one of lack of co-operation rather than dishonesty; and in all the circumstances I do not consider that there is any valid reason to disbelieve him on the key issues, namely the genuineness of the quotation and the fact that it emerged from his business records for 1997.
[30]Once again I am conscious of the fact that, in order to reject this fundamental aspect of the pursuer's claim or, more accurately, to uphold the defenders' allegation of a fraudulent scheme, it would be necessary for me to reject the evidence of both Mr Mitchell and Mr Ness as incredible, or at least unreliable. In all the circumstances, however, I am not persuaded that there is any sound reason for taking that course. If the relevant communications had not been sent until December 1997 or later, when the defenders maintained that the company-headed notepaper first came into existence, they would have appeared materially mis-dated. In my view it is highly improbable either that Craig Rodger would have adopted such a risky and unpropitious strategy or, if he did, that neither Mr Mitchell nor Mr Ness would have noticed. Another possibility, of course, is that the communications in question were entirely false, having been generated during the adjournment of the proof between October 2003 and October 2004, but I am not prepared to hold that both Mr Mitchell and Mr Ness were parties to such a serious and deliberate fraud on the Court. Significantly, this possibility was not expressly put to either witness in cross-examination.
[31]Accordingly, so far as the evidence led for the pursuer on the employment issue is concerned, I regard it as sufficient to establish, on the balance of probabilities, that he was formally employed in his son's business prior to the accident, and that the employment documents Nos. 7/24 and 7/26 of process were brought into existence at the relevant time.
[32]The defenders' witnesses on this branch of the case were (i) Ms Martine Koops, the current manager of the printing firm in Kirkcaldy from which notepaper was ordered by Craig Rodger, and (ii) Andrew Sinclair, the managing director of the insurance brokers in Kirkcaldy through whom the defender company's insurance was arranged. The defenders' main aim in leading these witnesses was plainly to show that the company-headed notepaper used for the pursuer's employment documents Nos. 7/24 and 7/26 of process was ordered on 1 December 1997 - a day on which Craig Rodger was in Kirkcaldy to see Andrew Sinclair in connection with the company's insurance arrangements - and therefore did not exist in September/October 1997 as the pursuer and others claimed. A further aim was to prove that the account of the pursuer's accident on the insurance claim form No. 7/27 of process must have been typed in by Craig Rodger, or by someone else within the family, in the period prior to 1 December 1997. According to the defenders, this would reflect adversely on the credibility and reliability of all family members who denied responsibility for that entry, and in addition the terms of the entry were said to be significant in the context of the dispute as to what the pursuer was doing on the roof at Nisbet Farm at the time of his accident.
[33]The defenders also laid stress on a range of surrounding facts and circumstances which they contended made it intrinsically unlikely that the pursuer was formally employed by the company at that time. In particular they pointed to (a) the absence of any convincing reason for the pursuer to have been employed at all, given the company's financial problems, the lack of available work and the fact that hitherto the pursuer had been content to assist his son on an informal and unpaid basis; (b) the lack of any obvious reason to employ a general manager in a business which had not apparently needed one before; (c) the fact that the pursuer was not in any event fit for full-time work in September 1997; (d) the inappropriate terms of the contract and letter Nos. 7/24 and 7/26 of process, and the failure to implement ostensible sick pay and other obligations following the accident; (e) the likelihood that neither the DSS nor the Inland Revenue were advised of the pursuer's alleged change of status; (f) the cash payment of £200, without deduction of PAYE, which was made by Craig Rodger to the pursuer following the accident; (g) the apparent lack of employment details on the insurance claim form completed in December 1997 (No. 7/27 of process); (h) the apparent absence of any sound commercial reason for an ailing company to have ordered 1000 sheets of new notepaper in December 1997; and (i) the admission note in the records of Edinburgh Royal Infirmary following the pursuer's accident (No. 7/13 of process) to the effect that he was "... assisting in his son's roofing business."
[34]In the witness box Mr Sinclair duly confirmed that, on 1 December 1997, Craig Rodger visited his office in connection with an insurance claim form regarding the pursuer's accident. Ms Koops also confirmed, by reference to her firm's completed order form No. 7/30 of process, that on the same date 1,000 sheets of headed notepaper were ordered on the company's behalf. In my judgment, however, the evidence of Ms Koops fell well short of what would have been required to prove that this was the only such order, or that sample quantities of such notepaper could not have been in Craig Rodger's possession, as he claimed, some 9 or 10 weeks earlier. According to her, there were several features of the order form which suggested that this was a one-off transaction without any parallel in the firm's records. For instance, (i) a cross had been inserted in the box opposite the heading "Multijob"; (ii) the word "No" had been written opposite the heading "Camera ready", suggesting the absence of any prior artwork on the file; and (iii) there was no reference to a "Repeat order", which might have been expected if paper of identical design had previously been issued. In addition, Ms Koops explained that the firm's normal practice today would not extend to the printing of samples, although proof prints would usually be made up for the customer's approval. As against that, however, it emerged that Ms Koops' first contact with the firm was on commencing employment there in June 2003, and that she had no knowledge of working practices as far back as 1997. She was therefore not in a position to interpret the entries made by an unknown employee on the relevant order form, and unable to say precisely how a new or repeat order would then have been indicated. It was quite possible, she conceded, that the practice in 1997 was different from what she could describe; that the entry "Proof Req.: No" suggested that the customer may already have had a clear idea of what the paper looked like; and that, for all she knew, the customer could have obtained relevant artwork and paper prior to 1 December 1997. She also agreed that it was technically possible to provide small, or sample, quantities of paper for a customer; that this might occasionally happen; and furthermore that there might be some significance in the absence of any indication on the order form as to how the "artwork on file" was to be changed. Perhaps most telling of all, Ms Koops was unable to say whether or not the firm's file contained records of any earlier order from the defenders or their predecessors, and she could not recollect what other documents from the file she might have given to those representing the defenders.
[35]Accordingly, given these striking deficiencies in Ms Koops' evidence, and in particular (i) the fact that she could not speak to the working practices of the firm's staff at any date prior to June 2003, and (ii) her inability to say whether any record of a prior order in 1997 appeared in the firm's file, I decline to hold it proved, even on the balance of probabilities, that Craig Rodger could not have had proofs or samples of the company-headed notepaper prior to December 1997 as he claimed. It is perhaps surprising that, notwithstanding the obvious importance of this issue to their allegation of a fraudulent scheme, the defenders did not seek to lead any witness capable of speaking to the normal practice of the firm in 1997 regarding new and repeat orders, the printing of samples and proofs, or the completion of forms, nor had they ensured that Ms Koops (or anyone else) could categorically state, one way or the other, whether the firm's file contained any record of the order or supply of notepaper prior to 1 December 1997.
[36]In this context I should also mention that on 2 November 2004, after a final adjournment of around three weeks which I granted to enable evidence to be led from the company's insurance broker Andrew Sinclair, the defenders for the first time sought leave to lead an additional witness and production relative to the point at which the registration number of a new company would be issued. According to their senior counsel, this further evidence would be relevant to the question whether the registration number of the defender company could have been available in time to appear on company-headed notepaper on or prior to 12 September 1997, the date on which a letter on such paper bore to have been sent to the pursuer. That letter, it was said, had only been lodged as a production in October 2004, and the need for additional evidence had only then become apparent. This motion was strongly opposed, on the ground that the pursuer's proof had been closed long ago; that the defenders had already been allowed to lead additional witnesses and productions on a significant new matter during the course of the proof, namely the date on which the new company-headed notepaper came into existence; and that the pursuer would be significantly prejudiced if, at this late stage, the defenders were allowed to lead yet more additional evidence on another highly contentious issue. Neither the pursuer nor any of his witnesses had had an opportunity to comment on the alleged subject-matter of this new evidence, and in all the circumstances the defenders' motion should be refused.
[37]Having considered the competing submissions, I refused the defenders' motion for leave to lodge the proposed further copy production at that stage. I did so on the basis that no sufficient cause had been shown for the purposes of Rule of Court 36.3. In my view the defenders had had ample opportunity since the adjournment of the proof in October 2003, and a fortiori since the proof resumed in early October 2004, to recognise the potential significance of the inclusion of the company's reference number on the notepaper, and to bring forward any relevant motion at an earlier date. The pursuer's proof was now long since closed; the matter was clearly contentious; the proposed new production was only a photocopy of a document which, it was said, might not even have been prepared by the proposed additional witness; and in addition I was concerned that to grant the defenders' motion would potentially create a risk (with or without further adjournment) of the pursuer and/or several of his witnesses having to be recalled, or of yet more evidence requiring to be led in replication. Taking all of these considerations into account, I determined that the defenders' attempt to introduce this copy document in evidence came too late, and without adequate cause being shown, and that their motion in that regard must be refused. However, given the more permissive terms of Practice Note No. 8 of 1994, I indicated that I would be willing to allow the defenders' proposed additional witness to be led, although he could only be asked to consider such productions as were already before the Court. Senior counsel for the defenders thereupon stated that he did not intend to pursue this matter further, and that his only remaining witness would (as previously understood) be the insurance broker Andrew Sinclair.
[38]As regards the claim form No. 7/27 of process, Andrew Sinclair's position was (i) that the handwritten entries were completed by him in discussion with Craig Rodger between 4 and 6 weeks after the pursuer's accident; (ii) that despite their terms Craig Rodger had actually advised him of the incorporation of his business long before 1 December 1997; (iii) that he could not now remember if he had also been told of any employment changes within that business; (iv) that to his recollection Craig Rodger had then taken the form away to complete the entry relative to the accident; (v) that the completed form (including the typed entry on the second page) was returned to him by Craig Rodger and signed in his office on 1 December 1997; and (vi) that he was fairly certain that his own office had had nothing to do with the typed entry, either before or after that date. This latter evidence was in conflict with that of the pursuer, Craig Rodger and Kelly Taylor, all of whom denied having had any hand in the typed entry. On balance, I am inclined to accept Andrew Sinclair's evidence in this context, bearing in mind (a) that the entry was expressed in the first person singular, which would have been contrary to Mr Sinclair's normal practice; and (b) that it is in my view inherently much more likely that the main substance of such an insurance claim should have come from the insured rather than from a broker. On the other hand, I am not convinced that this takes the defenders very far in any direction. For one thing, it is not clear who did in fact generate the typed entry and, for another, the terms of that entry are not significantly at odds with the pursuer's evidence as to what he was doing on the roof in the period prior to the accident.
[39]In the foregoing circumstances I am not persuaded, even on the balance of probabilities, that the defenders have made out their allegation of a fraudulent scheme on the part of the pursuer and his son concerning the pursuer's claimed employment with the company prior to the accident. Had the defenders succeeded in proving the impossibility of company-headed notepaper being available prior to December 1997, I would have had to revise my view of the credibility and reliability of the Rodger family witnesses, and of Messrs Mitchell and Ness, on critical matters having a bearing on what I have termed the employment issue. However, in my judgment, the defenders have altogether failed in that connection, and that failure is consistent with the evidence which I am prepared to accept from the Rodger family and from the other two independent witnesses.
[40]Moreover, in my view, the various factors relied on by the defenders and summarised in paragraph [33] above are not sufficient to persuade me that I should reach the opposite conclusion. Taking account of the circumstances in which the pursuer's change to employed status took place, including Mrs Rodger's views on the desirability of having a formal written contract, factors (a), (b) and (c) seem to me to be of limited significance. Judged from an objective and purely commercial standpoint, employing the pursuer may seem a questionable step for Craig Rodger to have taken in the autumn of 1997, but for the reasons discussed in paragraph [18] above I do not consider that his actions at that time, as he (perhaps irrationally) hoped to trade out of a serious business crisis, can properly be judged from that standpoint at all. Having seen and heard Craig Rodger for a substantial period in the witness box, the apparent strangeness of some of his behaviour in 1997 does not convince me, even on the balance of probabilities, that he did not in fact take the step of employing the pursuer shortly before the accident. Factors (d), (e), (f) and (g) are in my view also consistent with Craig Rodger's generally inept approach to business matters. Further, as regards factor (g), I am not inclined to attach undue importance to the terms in which parts of a form were filled in by an insurance broker, especially in view of the fact that some of the blanks to which the defenders drew attention related to routine and uncontroversial matters of which Craig Rodger and Andrew Sinclair would have had full knowledge. Factor (h) appears to me to be without substance, bearing in mind not only Craig Rodger's determination to carry on trading at that time, but also the much greater improbability of his having ordered 1000 sheets of notepaper for the fraudulent scheme alleged by the defenders. And in my view factor (i) can be discounted on the basis that the relevant entry could not have come from the pursuer himself, since he was unconscious following his fall, and that there was no evidence as to who else might have provided such information or as to whether it was accurately recorded.
[41]On the contrary, as it seems to me, there are a number of broad considerations which point towards the likelihood of the pursuer's position on the employment issue being correct. First, there can be no doubt that Craig Rodger's business was trading as a limited company well before the end of September 1997, as evidenced by the various letters (on both old and new paper) sent out to customers at that time. Having heard the evidence of Mrs Taylor, the pursuer's daughter, as to the way in which some of the old paper was used up in conjunction with the new, I do not think that any sinister significance can be attached to that fact. Accordingly, if the pursuer was employed by anyone at the end of September 1997, it was the defender company which employed him. Equally, whether formally sanctioned by the clients or not, the defender company was de facto undertaking the work at Nisbet Farm by the time of the pursuer's accident. Second, if the pursuer's claim to employment was entirely false, it is hard to see why he or his son should have embarked on a detailed and elaborate scheme which would inevitably expose other members of the family, and at least two further witnesses, to the risk of prosecution for perjury or worse. Third, if a written contract of employment was going to be fabricated, it could easily have been dated earlier than 30 September 1997 so as to avoid any suspicious proximity to the date of the accident. Fourth, as regards the employment documents Nos. 7/24 and 7/26 of process, there could have been no credible reason to fabricate these on company-headed notepaper if that was known (and could be proved) to have been ordered in December 1997. Similarly, fifth, there could have been no plausible reason to fabricate these documents on company-headed paper if all communications in the post-incorporation period had been on the old notepaper with typed amendments. Sixth, if embarking on a scheme to defraud insurers and deceive the Court, it is hard to imagine anyone fabricating employment documents containing the glaringly inappropriate provisions discussed at paragraph [19] above. Seventh, what possible reason could there have been for fabricating a letter to the pursuer bearing the date 12 September 1997, and thereby inviting challenge on the ground of its undue proximity to the date of incorporation? It is not easy to see why anyone should have wished to fabricate this letter at all, far less one bearing a date several weeks earlier than necessary. Eighth, I consider it inherently unlikely that those responsible for an elaborate fraudulent scheme in or after 1997 would have failed to act consistently with it, for example by notifying the DSS (albeit belatedly), by deducting PAYE from any payment made to the pursuer, or by including relevant details on the insurance claim form No. 7/27 of process. And ninth, it is in my view a striking feature of this case that the challenged employment documents Nos. 7/24 and 7/26 of process were not at any stage used, or communicated to any third party, by the pursuer or by any member of his family. They were merely filed away at the time, and might never have seen the light of day if the defenders' insurers had not unearthed them in the possession of the liquidator. It is hard to reconcile such a situation with the defenders' theory of a fraudulent scheme.
[42]The demeanour of the pursuer and his various witnesses is in my view a further important consideration in this case. Although it is true that material criticisms could be levelled at the evidence of several of these individuals, I did not end up with the impression that any of them was being deliberately devious or dishonest. Perhaps the most striking illustration of this came on Day 6 of the proof when, without averments and without prior warning, the defenders sprang on Craig Rodger the allegation that the company-headed notepaper on which Nos. 7/24 and 7/26 of process were printed had not in fact been ordered from the printers until 1 December 1997. After a short initial period of uncertainty as he sought to come to terms with this new line of questioning, Craig Rodger calmly adopted the position that while the paper in question had almost certainly come from Express Print in Kirkcaldy, he was sure that a small amount of artwork/samples had preceded the bulk order to which he was being referred. My impression at the time was that Craig Rodger remained astonishingly unflustered for a man who, on the defenders' approach, must have realised that he was on the point of being caught out in a series of massive lies on oath. In the event, of course, Craig Rodger maintained his stance when the proof resumed one year later; his account was broadly supported by his sister, Mrs Taylor, when she came to give evidence; and the existence of company-headed notepaper in September and October 1997 was further confirmed by the evidence of Thomas Mitchell and Thomas Ness.
[43]For all of these reasons I conclude that, on the evidence before me, the defenders' initial suspicions, however understandable they may have been, have come to nothing. There is no clear and cogent proof of facts and circumstances capable of demonstrating that the pursuer's claimed employment was a sham, or that the relevant documentation was fabricated after the event. On the contrary I am satisfied, on the balance of probabilities, that the pursuer was indeed employed by the defender company in the days prior to his accident, and that the relevant documents (whatever their faults) came into existence at around that time.
The pursuer's work at Nisbet Farm
[44]This is another area of the case where the evidence was conflicting and unsatisfactory. The critical issue is whether, on the day of his accident and/or on the preceding days, the pursuer was substantially engaged in the manual work of sheeting the roof through which he fell, as opposed to having been on site from time to time in a managerial/supervisory capacity as he claimed.
[45]At one extreme, the pursuer began by trying to maintain that he had never done any work of a manual nature at Nisbet Farm prior to his accident. According to him he had merely explained to others how things should be done, and he even went so far as to suggest that this had also been the case when he was the principal of Fife Metal Structures Ltd. This evidence simply did not ring true, and it came as no surprise when the pursuer soon conceded, in line with his pleadings, that he had in fact engaged in manual activity to a limited degree. He had, he said, given Thomas Birrell, the sub-contractor, a hand to lift certain sheets along the roof to the point where they were to be fixed. The sheets were heavy, and it was really a job for two or three men. By the time of the accident, however, he was on the point of coming down from the roof, although as he walked away Birrell had shouted for him to tell the forklift driver to raise the next load of materials. In addition, he had not physically helped with the fixing or re-alignment of any sheets, but had merely told Birrell how to do it. On the third day of his evidence, however, he volunteered that his previous recollection had been wrong regarding the amount of sheeting which remained to be done. In addition, as regards the realignment of sheets, he conceded that he could not deny having given Birrell a hand. After reverting to the position that he did not put his hand on a single sheet, he then agreed that he might have given sheets, or at least the first one, "a wee push". As he put it, he could not see himself not giving some sort of help. According to him, sheets had also been realigned on the Tuesday, three days before his accident, but he vehemently denied that he had been working with Birrell on the roof, fixing sheets, for the whole of the intervening period. Speaking generally, however, he might have leant down to hold something if that was required. Against that background, he could give no satisfactory explanation for having told the employment consultant, Andrew Wyles, that at the time of the accident he was on his way "... to assist with (the loading of) sheets" which were being raised to roof level. Equally, he could not explain why the averments on his behalf in the Closed Record stated that he was "involved in affixing cladding to the roof", and that he was "assisting Birrell from time to time".
[46]In these circumstances, looking at the pursuer's position on its own for the moment, I am simply not prepared to believe those parts of his evidence in which he asserted that he did not do any manual work but only advised others how it should be done. As in other contexts, his evidence in this area was contradictory and unimpressive, and I gained the impression that he was seeking to play down the true extent of his physical work on site in the days leading up to the accident. Having said that, however, the concessions which he made all involved limited assistance being offered from time to time when he was actually on the roof in a supervisory capacity, and this broadly coincided with the typed entry on the insurance claim form No. 7/27 of process to the effect that he was on the roof "... to inspect some cladding work which had been carried out by a sub-contracting squad." Since in my view the pursuer was, at best, an unreliable witness whose evidence (unless supported from elsewhere) could not safely be taken at face value on contentious issues, it is necessary to look for assistance to the evidence of the three other individuals who could speak to what was going on at that time.
[47]Thomas Birrell, the roofing sub-contractor, was another unsatisfactory witness. After describing how, on the morning of the accident, he alone had been sheeting the roof in his son's absence, he went on to assert that the pursuer had merely explained how to deal with a problem regarding sheet angles and had then fallen through the roof as he prepared to leave. In cross-examination, he acknowledged that he had known the pursuer and his family for a very long time, having worked for Fife Metal Structures Ltd and also for Craig Rodger's new business. He then became unsure whether his son, or a now-deceased individual called Peter McDonald, had been helping him with the roofing at Nisbet Farm on previous days. On the Wednesday and the Friday, he said, the pursuer was on the roof, but not working. Against that background, he then had considerable difficulty in explaining away the terms of a signed statement which he had provided to an insurance claims superintendent who interviewed him some months after the accident. That statement was No. 7/40 of process, and although Birrell sought to affirm that it was true, to the best of his knowledge, it was clear that it contained details of how "we" had been on site for 2/3 days, with only himself and the pursuer there on the Friday; how the system involved the pursuer fixing the panels on as he supplied them; and how the accident occurred as the pursuer walked along the gutter to lift another panel. So far as the latter assertion was concerned, Birrell agreed that this could have been true, but he was adamant that the reference to a "system" related only to the Monday on which the job first started, and that (whatever his statement might seem to indicate) the pursuer had not been working with him all week. He could not explain why he had not mentioned this qualification at the time, and it is relevant to note that the pursuer himself denied having been on site before the Wednesday. All in all, my impression was of a witness whose loyalties lay with the pursuer and whose evidence could not safely be accepted at face value. Once again, however, a clear thread running through Birrell's evidence was to the effect that the pursuer's presence at Nisbet Farm was only intermittent; that the pursuer had only arrived on site on the Friday around half an hour before the accident; and that he himself had been working alone on the roof for several hours before the pursuer's arrival.
[48]Thomas Birrell's statement No. 7/40 of process was allowed to be introduced in evidence on Day 10 of the proof subject to all questions of competency and relevancy, and I was reminded of this by senior counsel for the pursuer at the hearing on evidence. According to him, the statement was capable of being regarded as a precognition, and was therefore inadmissible. Failing that, he submitted that the Court should be careful not to read too much into a statement expressed in someone else's words. In my view, however, the statement is not struck at by the general rule against the use of precognitions. It is well settled that the primary justification for that rule is the concern that a written precognition is liable to reflect the words and beliefs of the precognoscer rather than those of the witness himself: see Kerr v HMA 1958 JC 14. That risk is clearly at its highest where a statement is taken by a solicitor for the purposes of a pending litigation. In this case, however, the statement was taken for insurance purposes within months of the accident, and long before the present action was raised. It was taken by an insurance representative rather than by a solicitor. Even more importantly, it then appears to have been sent to Birrell himself, under cover of the letter No. 7/41 of process, for checking and signature. It may be that no alteration to the text was made at that stage, and that the terminology was not obviously Birrell's, but the final version was signed by him on each page and thus amounts to a "writing under his hand" which would normally be treated as admissible in evidence even without prior production. Moreover, such a statement could legitimately be used to test the credibility of its maker in terms of section 3 of the Civil Evidence (Scotland) Act 1988, and would also constitute admissible hearsay by virtue of section 2 of the same Act. In addition, Birrell in the witness box effectively adopted the terms of the statement by declaring (subject to the very significant qualifications to which reference has already been made) that it reflected the truth as he then saw it. Taking all these considerations into account, I do not consider that there is any legal basis on which I must now leave the statement, or its influence on Birrell's evidence at the proof, out of account for present purposes.
[49]The defenders' witness Charles Young was a member, along with his father, of the farming partnership which owned and ran Nisbet Farm. He had been working around the farm on the day of the accident, and on the preceding days, and had in particular been using his forklift truck to raise batches of roofing sheets to a position at one end of the valley gutter from which the pursuer fell. He confirmed that the pursuer was not on site all the time, and was only now and again on the roof. He thought that two other men had been present on the Friday, but could not be sure. His recollection was of lifting a further load of sheets to roof level, and of the pursuer and another man receiving the sheets in connection with their work. Although the pursuer was dressed in ordinary working clothes, he appeared to be "the foreman type" or "the man in charge". The pursuer, he thought, was merely helping out, although from ground level he personally could not say who was actually laying sheets. As regards the days leading up to the accident, he could not specifically say if the pursuer had been there, but confirmed that the latter would only attend occasionally, arriving independently in his own vehicle and not with the other workmen. His assumption, it appeared, was that the pursuer had been lending a hand with the roof work, on the basis that "no-one was going to stand around doing nothing".
[50]Ronnie Young, the father of the previous witness, had even less to contribute. He had not been present on the day of the accident, and could say little about the nature of the work on the roof or about who was doing it. However, he also confirmed his impression that the pursuer was there on some days, and not on others, and that he might have been a supervisor. Unless engaged in supervisory duties, he thought that anyone on the roof would have been doing roofing work, but he could not specifically say what that was or whether the pursuer had actually been doing it. Like his son, he knew the pursuer to be a working person, and assumed that, even if he was on the roof in a supervisory capacity, he would not be standing back doing nothing.
[51]Taking all of the foregoing evidence into account, I am left with a confused and contradictory picture as to what exactly the pursuer was doing on the roof, either on the day of the accident or on the days immediately preceding. On the one hand, I do not believe his own initial claim that he was not involved in manual roofing work at all. At the other extreme, the straightforward evidence given by the defenders' witnesses Charles and Ronnie Young makes it impossible to accept the most far-reaching part of Thomas Birrell's signed insurance statement (the truth of which he himself strenuously denied), namely the assertion of a "system" whereby, for 2 to 3 days, the pursuer had been fixing all the roofing sheets while he made them available. The broad thrust of the evidence as a whole was to the effect that the pursuer was not on site every day; that he would turn up occasionally, and on his own, during the course of a day while other workmen were permanently on the roof; that he appeared to be a foreman, gaffer or supervisor; and that any roofing work in which he became involved would have been in the nature of incidental assistance in that capacity. In my opinion, having regard to the limitations of the evidence before me, no better estimation can now be given of the nature and extent of the pursuer's involvement in the roof work at Nisbet Farm. I have no doubt that he gave manual assistance to others from time to time, and can accept that he was at least helping to move and/or realign roofing sheets on the morning of his accident. However, I am unable to go so far as to uphold the defenders' contention that he was engaged full-time in roofing work (and in particular the fixing of roofing sheets) for a period of days, or that he was effectively deployed, while at Nisbet Farm, in a manual capacity.
[52]The foregoing findings and observations are, of course, made in the context of the defenders' strongly-disputed allegations of fraud against the pursuer and his son. In my view these allegations of fraud are not made out, especially in circumstances where (i) the precise terms of the relevant policy are not before the Court; (ii) there is no evidence that the pursuer himself had anything to do with the defender company's insurance arrangements; and (iii) no issue arises for decision in these proceedings regarding the interpretation or scope of the defenders' insurance cover. In addition, while I have had difficulty in accepting some of the pursuer's evidence on the "roof work" aspect of the case, that does not lead me to revise or question the conclusions which I have reached on the employment issue. Accordingly, the precise scope of any physical roofing work undertaken by the pursuer at Nisbet Farm is of no more than academic interest vis-à-vis the defenders' legal liability in this case. The duties owed by the defenders at common law and under the relevant Regulations, as summarised in paragraph [8] above, were clearly owed to the pursuer as an employee at the time of his accident, and the precise nature of the work which he was doing is immaterial.
[53]In the foregoing circumstances, it is unnecessary for me to decide whether the pursuer should nevertheless be entitled to succeed in the event of his claimed employment being exposed as fictitious, and as an integral part of a fraudulent scheme perpetrated on the Court and on the defenders' insurers. Had I required to do so, however, I would have been reluctant to follow the reasoning which commended itself to the Court of Appeal in Arrow Nominees Inc v Blackledge 2000 2 BCLC 167 and thereafter to the Lord Ordinary in Shetland Sea Farms Ltd v Assuranceforeningen Skuld 2004 SLT 30. In these cases, it was held that the detection of a serious attempt to deceive the Court should not necessarily disable the guilty party from starting again on a different basis as if nothing untoward had happened. If the other party could still receive a "fair trial", it was said, it would be going too far to hold that further proceedings should be barred. With great respect, however, I have difficulty in understanding why the consequences of a calculated and deliberate fraud on the Court should be determined by reference to "fair trial" considerations at all, even in the special context of the English discovery rules which were infringed in the Arrow Nominees case. In any event, it is hard to see any general justification for allowing a second chance following detection of a gross abuse of process. Prima facie, as it seems to me, the guilty party in such a case should be presumed to forfeit any right to proceed further on alternative grounds. No doubt the Court would retain a discretion to permit such grounds to be advanced in exceptional circumstances, but the primary rule should be one calculated to discourage any material attempt to pervert the course of justice. On that approach, if I had required to reach a decision on this issue in the present case, I would have declined to hold the pursuer entitled to succeed in his claim on any basis other than the (ex hypothesi fraudulent) claim to employment which lay at the heart of his case on Record.
The defenders' liability to make reparation
[54]For the reasons given above, I hold that the pursuer's accident was caused by the fault et separatim breach of statutory duty of the defenders as his employers, and that they are accordingly liable to him in damages. I therefore turn to consider the consequences to the pursuer of the accident which he sustained in the defenders' employment on 3 October 1997.
Consequences of the pursuer's accident
[55]As previously mentioned, the valuation of all aspects of the pursuer's claim other than loss of earnings is the subject of formal agreement between the parties. As regards the claim for loss of earnings it is necessary to consider, first, the pursuer's fitness for work in the autumn of 1997 and, second, his likely employment prospects thereafter if the accident had not occurred. In approaching these issues, I begin by accepting that at around the time of the accident there were potential vacancies for a contracts manager with local businesses. Glenn Murphy, the proprietor of such a business, confirmed in evidence that he had been making enquiries in that direction at that time. In particular, as confirmed in his letter No. 6/17 of process, dated 24 July 2003, he was seeking to appoint a manager for steel erection work in September 1997. However no such job offer was, in the event, made to anyone, and according to his recollection he did not meet the pursuer in that connection. William Collier, the proprietor of several businesses, confirmed having discussed the possibility of employing the pursuer at around the same time. His recollection was set out in a letter No. 6/16 of process, dated 26 July 2003, which the pursuer himself had asked him to provide. Mr Collier's evidence was that he had in fact employed someone else in October 1997 once the pursuer, whom he regarded as a plausible candidate, disclosed that he was going to work for his son. Cross-examination of Mr Collier became a heated affair, partly on account of the fact that his recent letter had been typed on the notepaper of a haulage business which had long since gone into receivership. However, I have no reason to doubt Mr Collier's explanation that this was an inadvertent error on his part, and that the discussions with the pursuer had actually involved his farming enterprise and not the haulage business. Mr Collier seemed the sort of man to whom the separate legal existence of his various businesses might seem to be of no more than secondary importance, and, as he vehemently exclaimed in the witness box:
"Should I have just written on blank paper? ... Should I have just tore the letterhead up? It was just a letter I gave him!"
Both Mr Murphy and Mr Collier confirmed that if they had employed the pursuer as a contracts manager at that time, the salary would have been of the order of £30,000 - a figure which broadly coincided with the general salary levels spoken to by the pursuer's employment consultant, Peter Davies.
[56]However, the real question is not how much a contracts manager might theoretically have expected to earn in the autumn of 1997, but whether the pursuer was in fact fit for such employment at that time, or would thereafter have been able to hold down such employment if his accident had not occurred. In addressing these issues, Mr Davies merely expressed certain opinions on the assumption that the pursuer's mental health problems had resolved sufficiently to permit him to return to work in late 1997/ early 1998. Messrs Murphy and Collier appeared to fall within the category of potential employers at that time, but clearly neither of them employed the pursuer then or subsequently. Moreover, there was no evidence to indicate that they would seriously have contemplated employing him in any capacity if they had become aware of his true state of health, nor any evidence to suggest that the pursuer's continuing health problems could have remained unnoticed for any length of time.
[57]In the same context, it is significant that the work which the pursuer was able to do for his son's business between 1995 and 1997 was intermittent and subject to significant limitations. Moreover, by late 1997, that business was almost certainly on its last legs and had no money to pay anything approaching the open-market salary for a contracts manager. Prior to the pursuer's accident, the job at Nisbet Farm was already in trouble due to non-payment of the original contractor engaged by Craig Rodger; no other identifiable jobs were in the pipeline; and although Craig Rodger described having had old prefabricated buildings for sale in his yard, and apparently remained hopeful of securing further work, I do not consider that his expressions of optimism were realistic. Even with such assistance as the pursuer might have been expected to provide, the business was in terminal decline, and it was plainly for this reason that Craig Rodger, without the benefit of professional advice, sought what he conceived to be the benefits of incorporation in early September 1997. In all the circumstances, judging the matter on the balance of probabilities, I am not persuaded that, but for the pursuer's accident, the terminal decline of the business could have been arrested or reversed. On the contrary, I consider that the company would almost certainly have gone into liquidation or receivership within a matter of months, just as it in fact did after the date of the pursuer's fall.
[58]Against that background I have to consider whether the pursuer has proved, on the balance of probabilities, that he would have secured employment elsewhere, following the demise of his son's business, to an extent that would justify an award for past and future loss of earnings on the discounted multiplier/multiplicand basis which his senior counsel proposed. According to the defenders, no such award would be appropriate in the circumstances, the pursuer's legitimate entitlement being restricted to a moderate lump sum to compensate him for an inspecific loss of employment prospects and disadvantage on the labour market. Calculations reflecting the pursuer's approach to loss of earnings were said to bring out a total of £150,000 inclusive of interest to 24 October 2004, whereas the defenders' position was that a reasonable lump sum award should not exceed £50,000.
[59]Having carefully reviewed the evidence regarding the pursuer's state of health in the latter part of 1997, with particular reference to the extent of his recovery from the breakdown of 1994, I have reached the conclusion that he was nowhere near as fit as he claimed, and that regular open-market employment to retirement age in any capacity was an ambition which he could never have realised. As narrated at paragraph [4] above, the records of the pursuer's GP for 1997 contain entries confirming that the pursuer's medical problems were then still very much in evidence; and in that context it is perhaps not wholly without significance that the pursuer could give no rational explanation as to how he came to fall, on 3 October 1997, from an area between two roofs which, in the trade, would normally be regarded as safe. It may be, as senior counsel for the defenders conceded, that the pursuer would intermittently have been fit for site and/or office work at different levels. However, since the extent of such fitness in the longer term cannot be reliably estimated, I am not persuaded that it would be appropriate to make an award for loss of earnings on the discounted multiplier/multiplicand basis for which senior counsel for the pursuer contended. The better approach, in my opinion, is to regard the pursuer's prospects of employment in and after 1997 as variable and uncertain, and to compensate him for the loss of such prospects on a broad lump sum basis as the defenders suggested. In my view, the defenders' proposed figure of £50,000 in that connection is reasonably fair - perhaps even generous - and I conclude that justice would be done by my awarding that figure to the pursuer for general loss of employment prospects, allocating £22,500 to the past (inclusive of interest to 24 October 2004) and the remainder to the future.
[60]Accordingly, on the basis that the foregoing sum of £50,000 is aggregated with the agreed sums of £65,000, £43,000, £58,000, £10,000 and £25,000 referred to in paragraph [7] above, the total damages payable by the defenders to the pursuer are brought out in the sum of £251,000, inclusive of interest on the past elements thereof to 24 October 2004.
Conclusion
[61]In the whole circumstances, I shall sustain the second plea-in-law for the pursuer; repel the defenders' pleas-in-law; find the defenders liable to make reparation to the pursuer in respect of the accident which occurred at Nisbet Farm, Pencaitland, on 3 October 1997; and award damages against the defenders in the total sum of £251,000 inclusive of interest to 24 October 2004 as previously mentioned. In the absence of agreement between the parties as to the amount of the interest-bearing past elements of that award, I am unable to bring the interest calculation forward to the present date. In my view, however, substantial justice will be achieved if I additionally find interest payable by the defenders on the whole of the foregoing sum of £251,000 at 8 per centum per annum from 24 January 2005 until payment. As it seems to me, making such interest payable from that date on the whole award will not only (i) reflect the fact that, strictly speaking, the pursuer should be entitled to some interest on the past elements of the award between 24 October 2004 and the present date, but also (ii) on a broad approach ensure that the defenders' overall liability in interest remains at an appropriate level.