[2013] CSOH 10




in the cause








Pursuers: Bain QC; McCaffery; Bonnar & Company

Defenders: Haldane QC; Waugh; HBM Sayers

18 January 2013

[1] On 18 July 2009 the late Peter McGee died in Glasgow Royal Infirmary following an accident suffered in his home two days previously, on 16 July 2009. The first pursuer, Catherine McGee, is his executrix dative, and also sues as an individual. The remaining pursuers are members of his family. The third and fourth pursuers, Susan Todd and Catherine MacInnes, are his daughters. Catherine MacInnes also sues as fifth pursuer on behalf of her daughter, Sophie MacInnes, who was nine years old at the time of her grandfather's death. The sixth pursuer is Declan Todd, the son of Susan Todd, who was 17 at the date of his grandfather's death. The deceased's son, Peter McGee, sues as seventh pursuer in his own right and as eighth and ninth pursuer on behalf of his daughters, Beth McGee and Leah McGee, who were respectively aged 10 and 13 at the date of their grandfather's death. The deceased lived with his wife in a house at 22 Mosesfield Street, Glasgow; they had lived there for about 36 years.

[2] In April 2008 the defenders, who are a company which carries out building and small contract works, were instructed by Glasgow City Council to erect bilateral internal handrails within the staircase in the deceased's house at 22 Mosesfield Street. The staircase comprised 13 steps. The handrails were installed on 5 May 2008. The defenders accept that the manner in which they were installed was negligent; I return to this matter below at paragraph [5].

The deceased's accident

[3] On 17 July 2009 the deceased and his wife attended a bingo evening at the Morven Public House in Springburn. This was a regular social event for them, and the deceased acted as one of the bingo callers. The deceased and his wife returned home after 11 pm and thereafter he and his wife went to bed. Their bedroom was on the first floor of the house. At about 2.30 am the following morning the deceased got up, and shortly thereafter he fell downstairs. His wife found him at the bottom of the stairs. The handrail fixed by the defenders had come away entirely from the wall. Mrs McGee immediately telephoned her son Peter, who lived nearby. Peter McGee arrived at the house about five minutes after that. By then the deceased was sitting on a chair in the living room. Mrs McGee told Peter McGee that his father had fallen downstairs, and he noticed that the handrail had come off the wall and that a photograph in a frame approximately 600 mm square had fallen to the ground and smashed. Mr McGee was a qualified first aider, and he examined his father and asked questions to discover whether he had any injuries. He asked his father what had happened. The deceased replied that he had gone downstairs for a glass of water. When he got to the top of the stairs he had put his hand on the banister and started down, and the next thing that he knew was that he was on the ground at the bottom of the stairs. The deceased said that he had felt the banister coming away from the wall. Mr McGee then touched the area of the deceased's ribs and his father screamed. Mr McGee immediately realised that the situation was serious and that an ambulance had to be called. He called an ambulance, the call being timed at 3.06. Mr McGee estimated that the call would have been made about 10 or 15 minutes after he arrived at his parents' house. On that basis I estimate that the time of the deceased's accident was at about 2:30 am. Mr McGee was asked in cross-examination and re-examination about his father's consumption of alcohol the previous evening. He stated that he could not smell drink on his father's breath, and that he had no impression that he had been drinking; the way he spoke was "very lucid". I should note that I found Mr McGee to be a wholly reliable witness and I have no hesitation in accepting his account of what his father said regarding the accident.

[4] The deceased was taken to Glasgow Royal infirmary in the ambulance, and both Mrs McGee and Mr Peter McGee went there as well. At Glasgow Royal Infirmary an account was taken from the deceased of what had happened on two occasions (6/4 of process, pages 38 and 41). On the first occasion, at 7 am, it was recorded that the deceased had said that he woke from sleep to go to the toilet. Somehow he had not made it there and had fallen down 13 stairs. He did not remember falling. His wife had woken and found him standing at the bottom of the stairs. He had pulled off the banister. On the second occasion, later the same day, it was recorded that the deceased had fallen down 13 stairs while trying to go to the toilet at about 2 am. His wife had woken up due to the noise and found the deceased standing at the bottom of the stairs. It was further recorded that the deceased had drunk 5 pints of Guinness, stopping drinking at around 11 pm. These accounts differ slightly from the account given by Mr Peter McGee of what the deceased said. On this matter I prefer Mr McGee's account. He gave an account, which appeared to me to be wholly credible and reliable, of what his father had said to him very shortly after his accident. Mr McGee was obviously concerned to know exactly what had happened to his father. The doctors who examined the deceased, by contrast, were rather concerned to obtain sufficient information to treat his injuries. From that perspective, what mattered was that he had fallen down 13 stairs; what he was doing at the time is plainly less material. Moreover, Mr McGee gave evidence that it was his parents' normal practice to obtain drinking water from the tap in the kitchen, which was supplied from the water main, and not from the tap in the bathroom, where the water came from a rather antiquated tank within the house. That would explain why he had tried to descend the stairs and had fallen down them.

Expert evidence

[5] For the pursuers, expert evidence as to the cause of the deceased's accident was led from Dr Stirling Howieson. Dr Howieson is a Chartered Architect and Chartered Engineer, with extensive academic and professional qualifications and lengthy professional experience. He had been instructed to visit the deceased's house and to prepare a report on his findings following an examination of the locus of the accident. In the course of his visit he took photographs of the locus, which were helpful in understanding what had happened. Following his visit he had prepared a report (no 6/6 of process). Dr Howieson's immediate reaction had been one of surprise that the handrail was attached to the plasterboard wall using small spiral fixings. He considered that this was "wholly inadequate" method of fixing the handrail. The type of screws were used were appropriate for such items as mirrors or pictures, but not for a handrail.

[6] In his report Dr Howieson indicated that several factors had combined in such a way that the handrail came loose from the wall. First, the wall was constructed of plasterboard fixed to brickwork using plaster adhesive "dabs". The plasterboard had no mechanical fixings and was simply glued to the wall using plaster "dot and dabs" of approximately 100 mm diameter. Crucially, there were no timber battens available to take the screw fixings that would support the wall plate. The employees of the defenders who fitted the handrail used metal self drill plasterboard fixings approximately 26 mm in length. 16 of these were screwed into the plasterboard along the entire length of the handrail. Of these fixings, three were located in plaster dabs. The sturdiness of the handrail was thus entirely reliant on the friction hold generated between the metal screws and the plasterboard. This was completely inadequate. In his evidence, Dr Howieson expressed the opinion that, because the wrong type of fixing had been used, it was almost inevitable that the handrail would collapse. Every time that weight was placed on the handrail the sharp spiral edges of the fixings dug into the soft exposed edge of the plasterboard, and he would have predicted that any handrail fixed in this way would come away from the wall. At this point I should record that the defenders accepted that the method of fixing was inadequate.

[7] Dr Howieson further considered whether the method of fixing adopted by the defenders' employees complied with the relevant British Standard, BS 6399 Part 1 1996 (Loading for Buildings - Code of Practice). This British Standard specifies (Parts 10 and 12 and Table 4) that a domestic handrail should be able to resist a uniformly distributed load of 0.36 kN per linear metre and a point load of 0.25 kN. Dr Howieson was unable to find any relevant data, and accordingly he set up a test rig to replicate the fixing method that had been used. In the test rig he used a 1200 mm length of handrail, which was fixed to an area of plasterboard 12.7 mm thick; the area of plasterboard measured approximately 500 x 1800 mm. The length of handrail was fixed using five metal fixings. The dimensions and positions were designed to replicate the conditions on site. The loading on the handrail in use would be both vertical and horizontal, and Dr Howieson considered that the resultant line of thrust should be considered as a combination of these loading conditions; consequently he tested the handrail at an angle of 45°. Dr Howieson also carried out a final test which involved loading the handrail after it had been pre-stressed by intermittent loading over 100 cycles with a 5 kg weight. This was an attempt to mimic the probability that repeated loading of the handrail would result in the sharp edges of the fixings' biting into the relatively soft gypsum plasterboard edges, thus progressively reducing the traction connection. The test results indicated that in a vertical loading scenario newly applied fixings were able to provide resistance that met the current British Standard. This would explain why the handrail appeared to be sturdy immediately after fixing. As the test progressed, however, it became clear that the handrail failed at a much lower loading point, particularly when the loading was at 45° and the handrail had been pre-stressed. This supported the hypothesis that repeated loading had progressively weakened the fixing resistance between the screws and the plasterboard.

[8] The final test carried out by Dr Howieson appeared to me to be particularly significant. This involved a 45° loading at the end point, following pre-stressing over 100 cycles with a 5 kg weight. On this occasion, the handrail failed with a load of 0.2 kN per metre, by comparison with a British Standard of 0.36 kN per metre. If the deceased had attempted to descend the stairs and suddenly found himself falling to the bottom, as described to his son, this is almost precisely the scenario that would have occurred. Dr Howieson's tests indicated that, following repeated loading, failure could be expected in that event. In his report, Dr Howieson expressed the opinion that the handrail had not been competently fitted. On the basis of the tests carried out in laboratory it was highly likely that the metal fixings holding the wall plate of the handrail had become progressively loose and were unable to support the load applied by the deceased. The handrail would have detached from the wall as the point load applied by the deceased produced progressive and rapid collapse along its length due to loss of resistance friction between the plasterboard wall and the metal fixing spirals. The fixings would rip from the wall initially at the top of the handrail. The middle fixings, with a lesser load, might stay in place, with the result that the handrail would rotate around its mid-point, with the bottom rising and knocking the picture of the wall. Dr Howieson explained that that opinion was based both on his experiments on the test rig and what he observed on the site visit. The wallpaper on the staircase showed that the handrail had ripped out horizontally from the top and then progressively down the wall. The appropriate method of fixing the handrail would have been to provide a secure fixing into the brickwork of the wall, making a hole right through the plaster and into the brickwork and inserting a resin capsule to take the screw. Had that happened the handrail would not have failed.

[9] In cross-examination Dr Howieson was asked about the applicability of BS 6399 to banisters; he indicated that it applied to "balustrades", as indicated in the headings to Part 10 and Table 4, and that word included banisters. He was asked about the fact that no difficulty with the banister had been observed before the deceased's accident; he replied that a visible gap would only have appeared when loading was applied to the banister. It was suggested that the deceased might simply have fallen, but Dr Howieson thought it more likely that the failure occurred at the top, close to the end of the handrail, where the force on it would be most concentrated. In a re-examination Dr Howieson stated that, if the deceased had lost his footing and grabbed the handrail, the handrail would have failed. If it had been constructed in accordance with the relevant British Standard, failure would require the deceased to apply almost the whole of his body weight, which would need extraordinary athletic agility. Consequently, if the British Standard had been adhered to, and the deceased grabbed the handrail as he fell, it was probable that the handrail would not have failed. In that event, it would be highly unlikely that it would have ripped off the wall; as it was built, it would not resist the force of someone falling.

[10] Expert evidence as to the cause of the deceased's evidence was led by the defenders from Mr William O'Britis. Mr O'Britis was a civil and structural engineer with considerable experience in the public and private sectors. He is currently employed by Cadogans, a firm which provides expert engineering evidence. Mr O'Britis had visited the locus during the summer of 2012 and had carried out an inspection of the handrail and its previous location on the wall of the staircase. He had been assured that matters remained as they were following the accident. He accepted that the wrong fixtures had been used in this case. He thought, however, that the physical evidence on the wall of the property was not consistent with a static force; it rather indicated a dynamic force consistent with the sudden impact of a heavy load. In particular, a significant amount of material had been pulled out around the fixings. I should observe, however, that a dynamic loading is entirely consistent with the pursuers' case and with the evidence of Dr Howieson, who accepted that all of the forces considered by him were to some extent dynamic.

[11] Mr O'Britis further gave evidence that, if a dynamic force had been applied, that was likely to be because the deceased fell and then hit the handrail. In that event, even if it had been fixed to the standards of BS 6399, it would have come off the wall in any event. This was based on the weights given for the deceased in his hospital records and in the post-mortem report; he had been a fairly heavy man. In any event, Mr O'Britis thought that BS 6399 did not apply to banisters but rather to balustrades, which consisted of a handrail with vertical posts. In cross-examination, Mr O'Britis described his visit to the locus. He was asked in particular whether anything had changed since the accident, and he replied that he had asked the solicitor who appeared on behalf of the defenders if anything had been done by way of repairs to the wall or to change the handrail. He was told that nothing had been done. He further understood that the handrail had never been moved from the locus. He accepted that the proposition that nothing had been done to the locus was an important part of his opinion to the court; that applied in particular to the position of the handrail. I should observe that I was surprised at this passage in his evidence. It seemed to me to be very obvious that the handrail must have been moved during the two years since the accident, and it was straining credulity to believe that it was in exactly the same place. In response to further questioning, Mr O'Britis accepted that some movement of the handrail, for example moving it from a diagonal position, might not affect his opinion. Nevertheless, it seemed clear to me that Mr O'Britis' views were based almost entirely on the observations that he made at the locus, and that it could not be guaranteed that no changes had occurred during the intervening two years.

[12] Mr O'Britis was cross-examined about his view that the deceased must have fallen first, and he replied that he thought that the handrail had come off the wall because a significant load had been applied to it. He accepted, however, that matters might be different if the handrail had been weakened in the past, but he thought that in that event a problem would have been reported. I observe at this point that I found the witness's answers in this area to be poor and largely speculative; I made a contemporaneous note to that effect. The witness further explained that if a vertical load were applied to the handrail the effect of torque would be to cause it to rotate, which would pull the fixings from the wall in a horizontal direction. I asked the witness about the possibility that the deceased might have held on to the handrail in order to steady himself as he was falling. The witness replied that in that event most of the deceased's body would be starting to touch the ground, or almost touching the ground, which would take his weight. I thought this a poor answer. If the deceased found himself falling (which was exactly the sort of event that the construction of such a handrail is designed to deal with) it is obviously likely that he would try to use the handrail to support himself. In that event, his weight would bear on the handrail, and if the handrail failed he would not be able to arrest his fall. Mr O'Britis did not appear to face that scenario; instead, he appeared to suggest that the deceased would in some manner be suspended from the handrail and thus close to touching the stairs. I had great difficulty in envisaging how that could happen in practice. The scenario that I put to Mr O'Britis was one that on the basis of the evidence of Dr Howieson and Mr Peter McGee seemed to me to be very likely.

[13] Mr O'Britis was further asked in court cross-examination about whether it would make any difference to his evidence if the screw fixings were loose. He replied that he could not say. Counsel then put to him the proposition, based on Dr Howieson's evidence, that if a vertical load were applied to the top of the handrail it could have pulled away there and progressively continued to the bottom. The witness agreed that that might be so if the handrail were loose, but added that if that had occurred in his house he would have had it tightened. That answer appeared to involve an acceptance that, if the fixings had worked loose, his evidence would change materially. Moreover, it is not at all clear that the deceased and his wife would have had occasion to notice that the handrail was working itself loose; reliance on that point appears to me to be wholly speculative. Counsel for the pursuers then asked the witness about the deceased's statement to his son, and whether that might be relevant to a reconstruction of what happened. The witness replied that he was not qualified to answer. It appeared that he had not taken that statement into account in formulating the views that he advanced in evidence. These features, the dismissal of the possibility that the handrail was already somewhat loose and the failure to take proper account of the deceased's own statements, seemed to me to emphasize the distinctly abstract and theoretical nature of Mr O'Britis' evidence. In general, I did not find him to be a satisfactory witness.

Assessment of expert evidence on the deceased's accident

[14] On the question of the causal mechanism that led to the deceased's accident, therefore, I have no hesitation in preferring the account given by Dr Howieson. In this connection, I make the following findings. First, I accept Dr Howieson's evidence that the figures in BS 6399 apply to handrails. The function of a handrail or banister or balustrade is essentially the same, to take weight so that someone does not fall. I cannot therefore conceive of any reason why different figures should apply to a handrail. Moreover, the handrail had been fitted on the instructions of Glasgow City Council for the specific purpose of providing support for elderly people. Such a handrail must obviously be able to take weight in the same manner as a banister or balustrade. For this purpose it is not of great importance whether BS 6399 was expressly designed to apply to handrails such as that involved in the present case: the critical point is that the standards contained in the British Standard are relevant. Secondly, Dr Howieson's tests were criticised by counsel for the defenders on the basis that they were not performed upon the handrail itself and did not fully replicate the situation at the house, where at least some of the fixings had been inserted into plaster dabs. I reject this criticism. It seemed to me that the test did involve a reasonable replication of the actual handrail, and given the nature of the plaster dabs I do not believe that the failure to consider those would have made any difference; in his evidence Dr Howieson stated that any effect would be "marginal", as they were still plasterwork, and he would have expected the handrail to fail even if all of the fixings had been through dabs. On the basis of those tests, I consider it to be established that the handrail was inherently likely to have become loose over the period of a year or so since it was installed, and was also likely to have given way in the event that the deceased put weight on it or stumbled and attempted to grab it; this was precisely the sort of situation that the handrail was designed to deal with. For the defenders, significant reliance was placed on the lack of complaints that the handrail had become loose or had seemed to be coming off the wall. I do not regard this as relevant. It is not obvious that elderly people will pay close attention to what is happening to the handrail as they use it, and in any event, as Dr Howieson observed, the fact that it was becoming loose would only be apparent when weight was brought to bear on it.

[15] Thirdly, the evidence of Mr O'Britis proceeded largely on a distinction between static and dynamic loads. Nevertheless, the evidence of Dr Howieson appear to me to proceed on the basis that the loadings would be essentially dynamic. I accordingly reject this as a criterion for rejecting the latter's evidence. Fourthly, as indicated in paragraph [13], I considered Mr O'Britis' evidence to be abstract and theoretical in nature. It was based on an examination of the locus, but it was clear that, at least in its original form, it was heavily dependent on the proposition that nothing had changed since the time of the accident. I thought this most improbable. Mr O'Britis changed his position to some extent by accepting that some changes in the position of the handrail might not matter, but this seemed to me to amount to a recognition that his original position was quite untenable. Furthermore, and very importantly, Mr O'Britis' evidence did not take account of the statement that the deceased made to his son immediately after the accident, which I regard as a crucial guide to what happened. Mr O'Britis did not provide detailed written calculations, which of itself inevitably limits the significance of his evidence. I should also observe that I found his answers in cross examination to be poor; he frequently failed to answer a question, or did not give a straightforward answer. Fifthly, I reject Mr O'Britis' evidence on weight loading. The scenario that he considered appeared to be essentially abstract, unrelated to any account of what happened to the deceased, and unrelated in particular to the account that the deceased gave to his son immediately after the accident. On this matter, I accept Dr Howieson's evidence that, if the handrail had been constructed to the standards set out in BS 6399, it would not have given way when the deceased put his weight on it.

Conclusions on the deceased's accident

[16] For the foregoing reasons, I conclude that on the balance of probabilities the deceased's accident occurred as follows. At approximately 2.30 am he attempted to go downstairs to the kitchen to obtain a drink of water. When he reached the top of the stairs he took hold of the handrail with the intention of using it to help him descend and to steady himself. That was the essential purpose of fitting the handrail. The handrail had been fitted in a wholly inadequate manner; I have no hesitation in accepting Dr Howieson's evidence in that regard, and indeed that was accepted by the defenders. Moreover, the handrail had been weakened by repeated use over a period in excess of a year; that is in accordance with Dr Howieson's evidence, and is strongly supported by the tests that he carried out. The result was that when the deceased put his weight on the handrail it gave way, starting at the top and moving downwards. It is quite likely, although this finding is not critical, that it rotated about the mid point and thus caught the picture on the wall. In any event, it completely failed to bear the deceased's weight, and in consequence he fell downstairs. Thus his accident was a direct consequence of the defective fitting of the handrail. Had it been properly fitted, I accept Dr Howieson's evidence that it would not have given way. I should emphasize that I consider what happened to be essentially very simple: an elderly man attempted to use a handrail to descend stairs; that handrail was designed to bear his weight; when he put his weight on it it failed, and it did so because it had been inadequately fitted. I should also record that there was no evidence that the deceased had lost his footing, or had been disorientated, or fell and then struck the handrail. Those suggestions seem quite inconsistent with the account that he gave to his son immediately after the accident, which I have accepted as the probable version of what happened.

[17] In the course of submissions I was referred to a number of authorities on the analysis of expert evidence: Davie v Magistrates of Edinburgh, 1953 SC 34, per LP Cooper at 40; Dingley v Chief Constable, Strathclyde Police, 1998 SC 458; 2000 SC (HL) 77; McTear v Imperial Tobacco Ltd, 2005 2 SC 140, per Lord Nimmo Smith at paragraph 5.17; and Loveday v Renton, 1989 1 Med LR 117, at 125. The principles laid down in these cases are well known; essentially, expert evidence must be examined critically, and a witness's ipse dixit will not suffice. That is the approach that I have attempted to follow in this case. I find that Dr Howieson's evidence stood up to critical examination; the same could not, however, be said for the evidence of Mr O'Britis. I was also referred to authorities on the issue of causation and the burden of proof. It was submitted for the defenders that the pursuers had failed to prove on a balance of probabilities the case averred by them, namely that the deceased had started to descend, holding on to the handrail with his left hand, and that almost immediately the banister came away from the wall, causing him to fall. I was quite unpersuaded by that submission. It was suggested that the deceased's injuries (which I discussed below) were consistent with a fall down the full length of the stairs, and not down part of the length, as would be the case if the deceased had descended some way. As I understood the deceased's statement to his son, however, the deceased recalled starting to descend the stairs and then the banister giving way. It seems clear that it was at or near the top of the stairs that this occurred. For that reason I reject any inference based on the severity of his injuries. Counsel for the defenders also referred to the deceased's attempting a "controlled descent". No doubt that is so, but when the handrail gave way the deceased lost control, for obvious reasons. Reference was made by counsel for the defenders to four cases, Rhesa Shipping Co SA v Edmunds ("The Popi M"), [1985] 1 WLR 948, at 951 and 955, per Lord Brandon; Re B (Children), [2009] 1 AC 11; Re H (Minors), [1996] AC 563, at 586 per Lord Nicholls (dealing with the issue of proof on the balance of probabilities); and McGlinchey v General Motors UK Ltd, [2012] CSIH 91. These cases deal with the assessment of alternative explanations. It is not necessary for present purposes for me to consider them in detail, because it appeared to me that Mr O'Britis' evidence was unsatisfactory in a number of respects; consequently I did not find his explanation convincing. By contrast, I found the explanation put forward by Dr Howieson to be highly probable, based as it was on the account of what happened that was given by the deceased to his son.

Injuries to the deceased

[18] The evidence relating to the deceased's injuries and his subsequent death was not seriously in dispute, and I can deal with it shortly. A post mortem on the deceased was conducted by Dr Julia Bell on 23 July 2009 at the City Mortuary in Glasgow. This report was accepted as evidence without the necessity of calling Dr Bell. In the report the cause of death was certified as "1a: Coronary artery atheroma and cardiac enlargement. 2: Multiple rib fractures and fracture of the thoracic vertebrae following fall". The injuries to the deceased were recorded, and comprised bruising and abrasion on the outer aspect of the lower third of the right upper arm extending on to the back of the forearm over the elbow, bruising on the back of the left-hand, right knee, big toe, buttock and left flank. There was also internal bruising on the top of the head, and fractures to the second to eighth ribs on the right side and a fracture to one of the thoracic vertebrae, T6. The report also noted that the deceased had shown severe atheromatous narrowing of one of the main coronary arteries, and the heart was enlarged, with concentric left ventricular hypertrophy, the most common cause of which would be underlying hypertension although some of the enlargement might reflect the deceased's general large build. In keeping with the history of a recent fall was a fracture of one of the thoracic vertebrae, T6, and multiple fractures the ribs on the right side associated with haemorrhage into the intercostal tissues. Externally there were a number of bruises, but no other significant injuries elsewhere; in particular there was no evidence of a significant head injury. Given the suddenness of the death, the most likely mechanism was a cardiac arrhythmia. Nevertheless, the fact that the deceased had multiple rib fractures and a fracture of one of the thoracic vertebrae would undoubtedly have put extra strain on the heart thus potentially precipitated the cardiac arrest.

[19] The post-mortem report was commented on by two expert witnesses, both of great eminence in their respective fields. Evidence as to the nature of the injuries sustained by the deceased when he fell down the stairs at his home and their significance in understanding his death was given by Prof Anthony Busuttil, while evidence about the deceased's heart condition and its relevance to his death was given by Dr Nicholas Boon. I propose to deal first with the evidence of Dr Boon, a consultant cardiologist at Edinburgh Royal Infirmary. His opinion was that, while the deceased had died as a consequence of unexpected cardiac arrest, the exact nature of that arrest had not been documented clearly; nevertheless, Dr Boon thought it probable that a period of ventricular fibrillation (rapid and ineffective electrical activity of the ventricles) had given way to a systole (cessation of electrical activity) and electromechanical disassociation (normal electrical activity but with no mechanical output from the heart). The only positive findings at the post-mortem that could have been responsible for the cardiac arrest were left ventricular hypertrophy and coronary artery disease. Nevertheless, the pathologist had found no evidence of myocardial scarring or acute coronary thrombosis (heart attack). The suggestion in the report that cardiac arrest was due to the documented heart disease suffered by the deceased was accordingly based on a presumption and the absence of any other demonstrable cause of cardiac arrest. The lack of scarring was significant, because that was an indicator for arrhythmia, of which ventricular fibrillation is a form. The degree of stenosis (constriction of the coronary artery) was also relevant; this was mild, and consequently a lot of stress would be required for ischemia (inadequate blood flow). Dr Boon expressed the opinion that the heart disease found at post-mortem was almost certainly long-standing and not particularly severe; it would not therefore have been expected to cause cardiac arrest by itself. Nevertheless, it would have made the deceased more vulnerable to the physical effects of stress and trauma. An analogy was found in marathon races, where a small number of people drop dead. In such cases, the underlying cause is usually stenosis, but extreme physical stress places greater demands on the heart and as a result not enough blood gets to the heart. Something similar would have happened to the deceased. Dr Boon therefore thought that, while it was impossible to ascertain the exact sequence of events that led to the death of the deceased, it was likely on a balance of probabilities that he died of a cardiac arrhythmia that was triggered by the effects of his injuries. I accept that evidence. From it I conclude that, when the handrail came away from the wall, causing the deceased to lose his balance, he fell forward on the steps sustaining the injury to his spine and the frontal fractures to his ribs. As a result of those injuries, considerable strain was placed on his heart, which resulted in the cardiac arrhythmia from which he died. Thus the deceased's death was caused by the failure of the handrail.

[20] Dr Boon commented on the prognostic implications of the deceased's existing heart disease. The deceased showed evidence at post-mortem of left ventricular hypertrophy and cardiac enlargement, although this had not been detected on earlier ECGs. He also suffered from mildly elevated blood pressure. Dr Boon was of opinion that these problems would have had very little impact on the deceased's life expectancy. Disease had also been found in one of the three main coronary arteries, in the form of a 75% stenosis in the left anterior descending coronary artery. This would have restricted the flow of blood to the heart under some circumstances, but it was not a severe or critical stenosis. All the other coronary arteries were reported to be normal. Moreover, the vast majority of middle-aged and elderly Scottish men display some degree of coronary artery disease. Consequently the presence of this stenosis was neither surprising nor unusual. Coronary heart (and related) disease is the cause of death in approximately one third of all Scottish men, and consequently published life expectancy tables reflect this risk. The deceased did not have unduly severe coronary artery disease. Consequently, he would be expected to have a normal life expectancy.

[21] Dr Boon's final conclusion was that, on a balance of probabilities, the deceased died from a cardiac arrhythmia that was the consequence of unrecognized underlying heart disease and the effects of multiple injuries. The heart disease evident at post-mortem was, on a balance of probabilities, long-standing and not unduly severe. This would not have compromised the deceased's life expectancy to any great degree if he had not sustained injuries on 16 July 2009. I accept that conclusion, which was not challenged by the defenders. Consequently I hold that the deceased's life expectancy was average for his age at death (71 years). A life expectancy table for Scotland was available (no 6/84 of process). This disclosed that for a 70-year-old man in the period from 2009 to 2011 the life expectancy was 13.38 years. For a 75-year-old man life expectancy was 10.32 years. Counsel for the pursuers suggested a figure of 12 years, and I think that that is realistic.

[22] Evidence relating to the post-mortem was also available from Prof Anthony Busuttil, the emeritus Regius Professor of Forensic Medicine at Edinburgh University. Prof Busuttil explained that on matters of cardiology he would defer to the opinion of Dr Boon and on matters of forensic toxicology he would defer to the opinion of Dr Robert Anderson, whose evidence is considered below. Prof Busuttil had considered both the post-mortem report and the deceased's hospital records. It was apparent from these that the deceased had suffered a number of injuries, including a wedge fracture of the sixth thoracic vertebra anteriorly and fractures of the second to seventh ribs, which caused a shallow pneumothorax. This caused some escape the air around the lungs, and caused difficulty with breathing. The fractured ribs and fracture of the spinal column would cause significant and constant pain, which would require strong analgesics. The considerable pain and anxiety that such an incident could have caused would have added further strain on the deceased's heart function, as the adrenalin in his system would have been increased, and that would have increased his heart rate and blood pressure and added further strain on his already compromised heart.

[23] Prof Busuttil's conclusions were that the deceased sustained a heavy fall as a result of falling downstairs. The injuries were severe and indicated heavy force. The rib injuries would have resulted from an impact against a hard unyielding surface, such as the stairs, and the vertebral injury would result from the body flexing and bending on itself in the course of the fall, pushing the vertebrae against each other and causing a wedge compression of the front of one of them. This was entirely consistent with a fall down stairs such as those at the deceased's home. The injury to the spinal column would not have prevented the deceased from standing up, as the spinal cord was not damaged. Prof Busuttil further expressed the opinion that, had the deceased been able to hold on to something and break his fall, his injuries would have been much less severe and complications less likely. The sum total of the deceased's injuries was related to force and momentum. If the deceased had been able, for example by holding on to a banister, to break his fall, he might well have reduced the severity of his injuries, and complications would then be less likely. The injuries were consistent with a fall from a substantial height. On the basis of Prof Busuttil's evidence, I conclude that the serious injury suffered by the deceased, including the fractured ribs with resulting pneumothorax and the spinal fracture, were caused by a fall down substantially the whole height of the stairs in his home. I further conclude that, if the handrail on the stairs had been able to bear the deceased's weight, at the very least his fall would have been broken and the severity of his injuries would have been substantially lessened. That would in turn have made the likelihood of his subsequent death considerably less likely.

Consumption of alcohol

[24] During the evening of 16 July the deceased and his wife had attended a bingo evening at the Morven Public House. This was a regular social event for both of them. During the evening, the deceased acted as one of the callers and consumed a certain amount of Guinness. Evidence about what happened during such evenings was given by Mr John Fury, who had been a friend of the deceased for many years. Typically the deceased and Mr Fury would arrive at the Morven at about 8 pm or shortly afterwards, to set up the bingo with a view to starting at 8.30. During the evening the men would take turns as callers and would drink Guinness. Usually the deceased would call the first ten sessions and Mr Fury the second. The deceased would have a maximum of two pints of Guinness between starting at the end of the first ten sessions; during calling it was not possible to drink much as it was necessary to concentrate on the task in hand. Further drinks would be ordered during the interval between sessions. The whole evening had to finish by 11 pm. Consequently the deceased would typically have three or at most four pints of Guinness in the course of the evening. The hospital records, however, indicated that he had consumed five pints during the evening in question.

[25] The fact that the deceased had consumed alcohol in the course of the evening raised the possibility that his ability to descend the stairs might have been affected. Evidence on this aspect of the case was given by Dr Robert Anderson, an eminent forensic toxicologist, who is a Chartered Chemist working in the Department of Forensic Medicine at Glasgow University. Dr Anderson carried out a calculation of the likely blood alcohol level of the deceased at approximately 2.30 am. The calculation proceeded on the assumption that between about 8.05 and 10.50 or 11 pm the deceased had consumed 5 pints of Guinness containing 4% alcohol; the figure of 5 pints was derived from the hospital records. Dr Anderson was also given information about the deceased, to the effect that he was a heavily built man about 6 feet in height and weighed approximately 107 kg. Dr Anderson explained that he was able to calculate the likely level of alcohol using what is known as a "forward" calculation; this reflects the extent to which the alcohol in the body is metabolized over time, reducing the concentration of alcohol. Dr Anderson had performed that calculation for the deceased, and concluded that at 2.30 am the level of alcohol would be 26 mg per hundred millilitres of blood. That was approximately one third of the drink-driving limit. If the accident had happened half an hour earlier, the figure would be about 9 mg higher, as the concentration of alcohol in the blood reduces by approximately 18 mg per hour.

[26] On the basis of Dr Anderson's evidence, which I except in its entirety, I consider it highly improbable that the deceased's ability to negotiate the stairs was impaired in any way by alcohol. If he had consumed 5 pints of Guinness, his concentration of alcohol would have been approximately one third of the drink-driving limit (on the basis, which I think likely, that the accident occurred at 2.30 am). At that level, I consider that his abilities would not have been impaired to any material degree. Moreover, on the basis of Mr Fury's evidence, I consider it likely that the amount of Guinness consumed by the deceased was less than 5 pints, probably 3 or 4 pints. On that basis the concentration of alcohol would clearly be even lower. The view that the deceased was not affected by the alcohol that he had consumed was supported by the evidence of his son, Mr Peter McGee, who gave evidence that, when he saw his father immediately after the accident, he could not smell drink on his breath and did not form the impression that he had been affected by drink; when he spoke he was very lucid.

[27] Counsel for the defenders submitted that Mr Fury's evidence indicated that, because of the demands of calling bingo, it is likely that most of the alcohol consumed by the deceased would have been during the latter part of the time spent at the Morven, after the deceased had finished calling. That could have an effect on Dr Anderson's calculations, as he had assumed that the consumption of alcohol took place regularly during the period between 8 pm and 11 pm. For that reason it was impossible to rely on Dr Anderson's calculations. I reject this submission. In the first place, I am not satisfied that it is correct that most of the deceased's consumption of Guinness would have taken place towards the end of the evening; Mr Fury indicated that the first Guinness and possibly the second would have been ordered before the calling started. In the second place, Dr Anderson's calculations were based on an assumption that the deceased had consumed 5 pints of Guinness in total. On the basis of Mr Fury's evidence, however, I think it more likely that his consumption was 3 or 4 pints. In the third place, Dr Anderson calculated that the deceased's concentration of alcohol would be approximately one third of the drink drive limit. That appears to me to allow considerable room for variation before I could realistically hold that the deceased's ability to descend the stairs was impaired.

Contributory negligence

[28] The defenders tabled a plea of contributory negligence. Their counsel submitted that on 16 July the deceased and his wife had travelled back from Turkey following a holiday there. They had then gone out to their usual bingo evening, during which the deceased consumed Guinness. In these circumstances it was likely that the deceased would be tired and affected to some degree by the amount of alcohol consumed. Those factors were likely to have made him disoriented to some degree when he began to descend the stairs. A deduction of 25%, it was submitted, would be an appropriate recognition of such contributory negligence.

[29] I reject the foregoing contention. For reasons that I have already given, I do not accept that the deceased's ability to descend the stairs was impaired in any way by alcohol. No doubt he had just wakened from sleep, but the function of the handrail was to assist the deceased to descend the stairs even at such a time. No positive evidence was led in support of the plea of contributory negligence other than that relating to the consumption of alcohol, which I regard as immaterial. In these circumstances I can see no basis for sustaining the plea of contributory negligence.


[30] For the foregoing reasons I find the defenders liable to make reparation to the pursuers without any deduction for contributory negligence. There remains the question of the level of damages that should be payable. I propose to consider the individual heads on which damages are claimed.

(i) The first pursuer's claim as executrix

[31] This covers solatium for the deceased in respect of the period from the time of the accident to the time of death. It has been agreed at £4,000, inclusive of interest. I should observe that it was clear the evidence that the deceased suffered very considerable pain and distress during that period.

(ii) Damages under section 1(4) of the Damages (Scotland) Act 1976

[32] I was referred to a number of recent cases dealing with awards under section 1(4). Fairly recent awards under that subsection are found in Bellingham & Others v Todd, 2011 SLT 1124; 2011 CSOH 74 (5 May 2011), and Wolff v Moulds, 2011 SLT 231; 2011 CSOH 159 (29 September 2011). The first of those cases involved the death of a man of 40. His wife was awarded £50,000, a 25 year old child £15,000 and a younger child £25,000. Wolff involved the death of a man aged 67. His widow was awarded £50,000, and children ranging in age from 32 to 45 were awarded sums between £ 15,000 and £18,000. A grandchild age 13 was awarded £6,500. In view of the age of the deceased, there would appear to be a significant discrepancy between the awards in those cases; the widow, in particular, of a man of 40 can expect to enjoy a much longer period with him than the widow of a man of 67. The awards in both cases were, however, the subject of critical comment in Hamilton v Ferguson Transport (Spean Bridge) Ltd, 2012 SLT 715. The main issue that confronted the court in the latter case was the form of direction that should be given to juries in relation to the level of damages; clearly that aspect of the decision is not relevant for present purposes. Nevertheless, Lord President Hamilton stated, at paragraph [72], that "the recent judicial decisions of Bellingham and Wolff markedly undervalue... the relative s. 1(4) claims". No guidance is given, however, as to how far the awards in the earlier cases undervalued the section 1(4) claims. Moreover, when the age of the deceased is taken into account, the awards in Wolff were markedly higher than those in Bellingham, and it is not clear to what extent the difference is relevant to the criticism of the awards in the two cases.

[33] Counsel for the pursuer submitted that I should make use of the awards in Wolff as a starting point, subject to certain special features that attached to the deceased's two daughters and his grandson Declan Todd, the sixth pursuer. Nevertheless, in view of the criticism in Hamilton, she submitted that I should increase the awards in that case by approximately 50% and use that as a starting point. Counsel for the defenders accepted that some uprating of the awards would be necessary. She also drew attention to a recent jury award in Kelly v Upper Clyde Shipbuilders Ltd, 29 July 2012, where, in respect of the death of an 82-year-old man from mesothelioma, £40,000 was awarded to the widow, £25,000 to each of the adult children (whose ages are not known), £8,000 to a grandchild aged 18, £4,000 to a grandchild aged 11 and £1,500 to a grandchild aged five. She submitted that those awards were lower than recent judicial awards. I am not convinced that that is so; at 82, the deceased in Kelly was markedly older than the deceased in Wolff, who was aged 67, and that is bound to have had an effect on the awards. Overall, I am of opinion that the awards in Wolff, if appropriately upgraded to account for the criticism in Hamilton, provide a useful starting point. The deceased in that case was 67; the deceased in the present case was 71. There is thus a general degree of comparability. Furthermore, the decision in Wolff is fairly recent. On that basis, my views on the awards to the individual pursuers are as follows.

Mrs Catherine McGee

[34] The deceased's widow, Mrs Catherine McGee, is the second pursuer. She provided an affidavit describing a relationship with the deceased, and that relationship was also spoken to in the evidence of Mr Peter McGee and Mrs Susan Todd. Mrs Catherine McGee is a few months younger than the deceased. They had been married for 36 years at the time of his death. It is clear that the marriage was happy. The deceased and his wife conducted an active social life together. This included, but extended well beyond, the bingo nights of the sort described at the Morven Public House. They attended church together, and they took regular holidays together, usually in Turkey, and made regular excursions to the Ayrshire coast. On these occasions they were usually accompanied by one or more of their grandchildren. It is quite clear that the death of the deceased had a devastating effect on Mrs McGee. This was exacerbated by the fact that the accident that resulted in his death occurred in the family home, where they had lived for many years. In the circumstances, I consider that an appropriate award would be £80,000. In part that represents an increase on the award in Wolff. In part it reflects the fact that in the present case the deceased spent a great deal of time with his wife in a range of different social and other activities, as described above; I am satisfied that in practical terms the relationship of the deceased and his wife was particularly close. In part the award also reflects the fact that the deceased suffered a fatal accident in his own house, where he and his wife had lived for many years; it is clear that the latter factor caused great upset to Mrs McGee. I allocate half of that sum to the past, with interest at 4% from the date of death to the date of decree.

The deceased's children

[35] The deceased's daughters, Mrs Susan Todd and Mrs Catherine MacInnes, are at the third and fourth pursuers. They were aged 44 and 37 respectively at the date of the deceased's death. Mrs Todd gave evidence about the circumstances of the family, and Mrs MacInnes provided a written statement. It is clear that both daughters enjoyed a close relationship with the deceased. In both cases their marriages broke down at a fairly early stage, and that made the presence of the deceased in their lives especially important both for the daughters and for their children. It was clear that he had provided very considerable support, financially, emotionally and in a practical sense, to both daughters. This included such matters as looking after the daughters' children when their mothers were at work, and taking them to and from school. Both of the daughters and their families lived close to their parents, and this meant that they saw a great deal more of one another than is perhaps the norm. During her evidence Mrs Todd became very upset on a number of occasions. In these circumstances I consider that an appropriate award for each daughter would be £35,000. As a starting point, I take the highest of the awards to children in Wolff, £18,000; the daughter in question lived with her parents and relied to a considerable extent on her father's companionship and guidance. The award in Wolff requires to be substantially increased, and in addition I am satisfied that the part played by the deceased in the lives of his daughters and their families was much greater than the norm, and in many respects greater than that of the daughter awarded £18,000 in Wolff. I allocate half that sum to the past, with interest at 4% from the date of death.

[36] The deceased's son, Mr Peter McGee, is the seventh pursuer. He was aged 43 at the date of the deceased's death. He gave evidence at some length, and described the family situation, and in particular the close relationship that the deceased had with other members of the family. He readily admitted that his relationship with the deceased had not been as close as that of his sisters, because he had been concerned with his own family. Nevertheless, it was clear that there had been a close relationship and that he had been greatly upset by his father's death. In his case I consider that an appropriate award should be lower than that awarded to his sisters, and I consider that £27,500 would be appropriate. I allocate half of that sum to the past, with interest at 4% from the date of death.

The deceased's grandchildren
[37] The deceased had four grandchildren. Sophie MacInnes, the daughter of Catherine MacInnes, was aged nine at the date of the deceased's death. She gave evidence about her relationship with the deceased, and indicated that she had a very close relationship with him and that they spent valuable time together. She had enjoyed talking to him about a wide range of topics, and he was always concerned about problems that she faced in her life. They had regularly gone on excursions to the Ayrshire coast and on holidays to Turkey. I am satisfied that the deceased enjoyed a particularly close relationship with Sophie; following the break-up of her parents' marriage he was the principal male adult in her life. I consider that these factors should be reflected in the award in her favour. I propose to award her £20,000; this reflects the exceptionally close nature of the relationship that she had with her grandfather.

[38] Declan Todd, the son of Susan Todd, was aged 17 at the date of the deceased's death. He gave evidence about his relationship with the deceased. His parents' marriage broke up when he was young and had been through a very troubled period before that, and it was quite clear that the deceased was the main adult male figure in his life. As such, the deceased played an exceptionally important part in his grandson's childhood, looking after him when his mother was at work and taking him to and from school throughout most of his childhood. The deceased encouraged Declan in a wide range of sporting activities, and took him to church, on excursions and on holidays. In evidence, Declan stated that the deceased was, in effect, his father, and was everything that he could have asked for. He had clearly been very badly affected by his grandfather's death, which occurred when he was about to go to university. In my opinion these factors must be reflected in the award in Declan's favour. I am satisfied that his relationship with his grandfather was exceptionally close in a number of respects, not least the fact that as a boy growing up he required the influence of an adult male figure and the deceased played that part in his life. For that reason I consider that the award in his favour should move into the level that is normally more appropriate for a child than a grandchild. In these circumstances I am of opinion that an appropriate award would be £25,000.

[39] The two daughters of Peter McGee, Leah McGee and Beth McGee, were respectively aged 13 and 10 at the date of the deceased's death. I was provided with letters from both of them to describe their relationship with their grandfather. It was clear that this was a close relationship, and that they were very fond of their grandfather, but in this case the relationship was a fairly straightforward relationship between grandfather and granddaughters, without the special factors that applied to Sophie and Declan. I propose to award each of Leah and Beth £12,000. Half of each of the awards in favour of grandchildren will be allocated to the past, and interest will run at 4% from the date of death.

(iii) Funeral expenses

[40] The deceased's funeral expenses were paid by the second pursuer. They amounted to £7,094.50. I will award that sum in favour of the first pursuer. Interest will run at 8% from the date of death.

(iv) Loss of services: Administration of Justice Act 1982, section 9

[41] The second pursuer has also made a claim for loss of services. This was made in the course of the proof. It had inadvertently been admitted at an earlier stage, but I was satisfied that the defenders were not prejudiced in any way as a result of the allowance of the claim at a very late stage. Evidence about the services rendered by the deceased to his wife was given by Susan Todd, and also in the affidavits of Mrs Catherine McGee and Catherine MacInnes. No objection was taken to the evidence given by Mrs Todd on this question. It was clear that the deceased did a great deal in the house, and I am satisfied that an award under this head is justified.

Inevitably a broad approach must be taken to any such award. Counsel for the pursuers submitted that damages of £10,000 would be appropriate; counsel for the defenders submitted that an award of £3,500 should be made. In my opinion an award of £5,000 would be appropriate. This covers both past and future loss; I consider that the past element should be £1,500, and interest will run on the latter sum at 4% from the date of death.