Pursuer: Smith QC; Drummond Miller, Solicitors

Defender: Party

6 February 2007

[1] The pursuer is Mr James Gibson. He was born on 13 February 1969. He lives at an address in Prestonpans, East Lothian. It is his case that he was working in the course of his employment with the defender as a window cleaner on 23 October 2001; that on that date he was cleaning the windows of a house at 11 East Hermitage Place, Edinburgh, working at height from an extendable ladder; that the ladder was not secured in any way; that the ladder slipped; that the pursuer fell and that in consequence he sustained serious injury. He avers that the accident was caused by the fault of the defender at common law and his breach of statutory duties imposed by Regulations 4 (suitability of work equipment), 7 (specific risks), 8 (information and instructions), 9 (training), 12 (protection against specified hazards) and 20 (stability), of the Provision and Use of Work Equipment Regulations 1998. For his part the defender, Mr Kevin Colin Whyte, while accepting that he carried on business as a window cleaner under the name of Forth Cleaning Services at the relevant date, denies that he has ever employed the pursuer. In any event, it is the defender's position that, with one exception, the ladders used by him in his window cleaning business were fitted with circular feet that were designed to prevent the ladder from slipping.

[2] I heard proof on 8 to 10 February 2005 and, following discharge of the originally fixed continued proof, on 28 to 30 November 2006. The pursuer was represented by Mr Smith QC. The defender, who explained that he was not insured against the relevant risk at the relevant time, represented himself (in a manner which, in all the circumstances, was remarkable both for its courtesy and its competence).

[3] The witnesses led on behalf of the pursuer were as follows: the pursuer; Mr Norman Bennett, a former employee of the defender; the defender; Mr Gilbert Gladstone, self-employed window cleaner; Mrs Shona Gibson, the pursuer's wife; John Stewart of Stewart Safety Services, health and safety consultant; Mr Peter Davis, employment and rehabilitation consultant; and Professor Court-Brown, consultant orthopaedic surgeon. The defender led: Mrs Kirsten Whyte, the defender's wife; Mr Scott Hunter, a friend of the defender and the proprietor of another window cleaning business; Ms Wendy Cassidy; and Ms Heather Reynolds.

[4] When Mr Smith came to address me on behalf of the pursuer he identified the following matters as being in issue: 1. Was the pursuer employed by the defender? 2. Was the pursuer injured in the course of that employment? 3. Was he so injured by the fault and negligence of the defender? 4. What is the appropriate value of damages? I agree that these are the questions that I have to address, although underlying them are the more fundamental questions, raised particularly acutely in this case, as to what of the evidence that I have heard can be regarded as credible and what can be regarded as reliable.

[5] There is no doubt but that the pursuer sustained a severely comminuted fracture of the left calcaneum on a date in October 2001 that has had very serious consequences for him. The pursuer avers that this occurred on 23 October and the pursuer in evidence, admittedly when responding to leading questions, appeared to agree that this was the relevant date, whereas the ambulance and medical records lodged as productions identify the date of the accident as having been 22 October. I shall have something to say about my impression of the pursuer as a witness but other than in relation to that, the discrepancy in date is of no significance.

[6] It is for the pursuer to prove that he sustained his injury in the circumstances averred and that he did so in the course of his employment by the defender. The defender accepts that in October 2001 he was carrying on business as a window cleaner, trading as Forth Cleaning Services, but that he then had only one employee, Mr Norman Bennett. In evidence the defender stated that while he recognised the pursuer as someone from the Prestonpans area whom he recalled having seen at the Gala Day in 2002 he then did not know him. He first heard of the pursuer's accident early in March 2003. He had never employed the pursuer.

[7] The account given by the pursuer in evidence was very different from that given by the defender. Some three months prior to October 2001 he had been out of work, having most recently been employed as a security guard at Cockenzie Power Station. He attended Musselburgh Job Centre where he obtained details of a job advertised by the defender. He telephoned the defender two days later and spoke to him. The defender said he would take him on trial. The pursuer did not see the defender until the second or third day after starting work. He had come to see how the pursuer was getting on. After about a week and a half the defender had met the pursuer in Port Seton. They went together to a café and chatted about work. After that the pursuer had seen the defender about once a day. The pursuer would work on a day to day basis with Norman Bennett but at least twice a week the defender would work along with them. Usually the pursuer would be picked up and taken to work by Norman Bennett but on occasion the defender would collect him, driving a blue sports car. They would usually go to the defender's house in order to pick up the book containing the addresses of the houses where they had to clean the windows. The defender had supplied the pursuer with four polo shirts and three sweatshirts in addition to a waterproof jacket. The pursuer had handed these back but he identified number 6/8 of process, which was a green tee shirt with the initials "FCS", as part of the uniform with which he had been supplied by the defender. The pursuer was paid in cash, contained in a brown envelope. The pursuer had visited the defender's house on more than one occasion. He displayed some knowledge of the defender's house and domestic arrangements. The pursuer said that the defender had kept in touch after the accident. He had visited the pursuer. He had kept the pursuer's job open. In December 2001 he had given the defender a Christmas present of 24 cans of lager. As evidence of further contact with the defender after the accident and an acknowledgement by the defender that he employed the pursuer, the pursuer referred to number 6/6 of process. This was a completed but not submitted application form in respect of a personal loan addressed to the Royal Bank of Scotland plc. The pursuer's name and address had been added in typescript. Other details had been added in manuscript. It was the pursuer's evidence that some of these had been written by the defender when he came to the pursuer's home on or about the date, 17 September 2002, which appears against the pursuer's signature. Under the heading "Employment Details" the defender had written "General Cleaner", provided the name and address of Forth Cleaning Services, given "17400" as the date employment commenced (17 April 2000), and ticked boxes relating to how payment of wages was made. When the defender came to give evidence he accepted that he had filled in these details on the form. However, it was his evidence that the form had been handed to him by Norman Bennett at work, that when it was given to him it was folded with the result that he had not seen the typescript, and that he understood that he was completing the form in relation to Mr Bennett. He drew attention to the date given as that when the applicant's employment commenced. That corresponded to the date when Mr Bennett had begun work. It did not correspond with the date when the pursuer claimed to have begun work. In his evidence, Mr Bennett denied any connection with this transaction.

[8] The stark conflict as between the evidence of the parties on the employment issue means that I have to look at this evidence with particular care but before going further it is convenient to note the pursuer's account of his accident.

[9] The pursuer agreed with Mr Smith that on the morning of 23 October 2001 he had been picked up by the green Fiesta van. He could not remember whether he went to the defender's house that day. Neither could he remember the address where the accident had happened but he identified the occupier as "Flannigan". He was working at the front of the house, Mr Bennett at the back. He required to use a ladder. He got a two piece extendible ladder from the top of the Fiesta van. Mr Bennett was using another ladder. When giving evidence in chief the pursuer was uncertain as to whether there was a third ladder on the van but when asked in cross-examination how many ladders were on the Fiesta van, he replied "two upstairs, two downstairs". I took that to mean two ladders suitable for upper storey work and two suitable for ground storey work but the matter was not explored. The stiles of the ladder selected by the pursuer had rubber plugs at their feet. These were semi-circular in shape and were ribbed. They were different from the anti-slip footings illustrated in the Stewart Safety Services report, number 6/35 of process. When asked whether he had been provided with anything else other than the two piece ladder, the pursuer replied that there was a three-piece ladder "with feet" but that "we did not have this for day to day cleaning". When using the word "feet" in that answer I understood the pursuer to be referring to circular rubber pads similar in design and purpose to the anti-slip footings shown in 6/35 of process. The pursuer's reference to the three-piece ladder was not further explored with him, although in cross-examination he asserted that there were "no safety feet on the ladders".

[10] The pursuer set the ladder against a first floor window. He "made sure the ladder was safe". The stiles were resting on old slabs. The pursuer climbed the ladder to a point where his head was about three quarters the way up the window. He estimated that he was some 14 or 16 feet from the ground. As the pursuer was putting soap on the window and leaning into the window the ladder slipped at the bottom. It went to the side. The pursuer fell.

[11] My assessment of the pursuer was not favourable. He did not present as someone of exemplary character. He has a conviction for assault. He accepted, as was demonstrated by number 7/9 of process, that he was claiming Income Support during the period when he alleged that he was employed by the defender and receiving £30 or £35 per day. In the same period he made a claim for Incapacity Benefit. When it was put to him in cross-examination that he was prepared to commit fraud by claiming that he was unfit for work during the time that he was working as a window cleaner, the pursuer accepted this. He had, however, "put his hands up" to the Department of Social Security (a process initiated by his solicitor). The pursuer was vague in his evidence as to previous employment. In cross-examination he explained that he might have been muddled over times and dates. The pursuer was shown medical records which suggested that he was involved in a road traffic accident in April 2001, that he required a pain-killer for a previous injury, that he fell down stairs in a bus in August 2001 and that at that time he described himself as a scaffolder. The pursuer expressed some impatience with this line of questioning and the details referred to. He had thought the fall in the bus had happened a year earlier. He ascribed the references to a painkiller and to him being a scaffolder to errors on the part of medical staff. He did not know why he had not described himself as a window cleaner when applying for Incapacity Benefit in September 2001. He accepted that he was receiving treatment for alcoholism (as his medical records indicated). On at least one occasion the pursuer did not trouble to answer a question put by the defender in cross-examination and on another he contented himself with a derisive laugh. I did not get the impression from the pursuer that he was concerned to be or was very interested in being, precise as to matters of detail in his evidence. In relation to his employment history prior to 2001, I had little difficulty in coming to the view that he was simply unreliable. That is not to say that I found him to be satisfactory on other matters. I cannot say with certainty that the pursuer lied in his evidence to me but he admitted his past dishonesty in relation to benefit claims and his willingness to make a fraudulent loan application. As I have tried to indicate, the content of his answers and indeed his demeanour in court did not point to someone who was anxious to be accurate in his evidence. He was not a witness whom I felt that I could trust. I would accept that he provided a certain amount of circumstantial detail as to his contact with the defender about the time when, on his account, he was first employed by him. However, the pursuer's account of his accident, while perhaps sufficient for the purposes of his Record, was lacking in detail. He gave contradictory answers in relation to his recollection as to the number of ladders carried on the Fiesta van. He did not explain why he chose to place the ladder in the position that he did. I appreciate that (for what I take to be good reasons) the pursuer was not asked to give further explanation about the circumstances of his accident, either in examination in chief or in cross-examination, and it may therefore be that he cannot be criticised for not volunteering more information. However, the absence of anti-slip footings (or "non-slip feet" to use the language of the Record) on the ladder used by the pursuer was an issue in the case and I was left in the position where I was not entirely clear as to whether the pursuer was saying, on the basis of a firm recollection, that he had used a ladder which did not have non-slip feet because he had no available alternative. While that may have been the flavour of his evidence, he did not say so in terms. I would accept that Mr Bennett put the matter more unequivocally. According to him, if two people were working there would be two "upstairs" ladders on the van. There was a triple ladder which had non-slip feet but the double ladders did not have non-slip feet. In chief that information was elicited by a leading question but when challenged in cross-examination Mr Bennett repeated that there were "no safety feet I noticed".

[12] The pursuer's account of having been employed by the defender got support from the evidence of Mr Bennett and from the evidence of the pursuer's wife Mrs Shona Gibson. Although Mr Bennett did not claim to have witnessed the accident he spoke to having just got round to the back of a house while the pursuer was at the front, hearing a ladder clatter and coming back to find the pursuer holding his ankle.

[13] As Mr Smith very fairly recognised, Mr Bennett was a very unsatisfactory witness whose support might be regarded as somewhat two-edged. He had given contradictory explanations as to why he had not attended court on the first day and admitted that he had lied on this matter. Bennett accepted that he had signed a typed statement, number 7/54 of process which included the narrative

"On 22 October 2001 I was carrying out unauthorised window cleaning work with the help of James Gibson, when he fell from a ladder at an address in Seafield. ... James agreed to help me with some extra cash jobs I managed to accumulate. ... I had use of the company van in & out of working hours. James & I would split the cash proceeds received."

Although he admitted signing the statement, Mr Bennett disavowed the truth of the contents when the statement was put to him in cross-examination, with the exception of the last paragraph. In re-examination he qualified his position by saying that the references in the final paragraph to originally having "the added incentive of making money" and now longer wanting to be "any part of this attempted fraud against Kevin Whyte" were also false. Mr Bennett said in evidence that he had signed this statement when only he and the defender were present, whereas, Ms Cassidy, Mr Hunter and Mrs Whyte all stated that it had been signed in the presence of all of them, as their respective signatures to the statement bear to attest. Mr Smith did not attempt to persuade me to prefer Mr Bennett to these witnesses and accepted that Mr Bennett must be taken as having lied on that matter.

[14] Mr Bennett accepted that he had written the words in manuscript in a Christmas card, number 7/53 of process, albeit copying words that the defender had already written. These words included the following: "Jim was helping me doe (sic) extra work when he fell. Never thought it would go this far just wanted to get back for the sack."

[15] Whereas Mr Smith only sought to rely on Mr Bennett in relation to matters where he was supported by others, he placed more weight on Mrs Gibson's evidence. She had little to say about the period prior to the accident but she spoke to the defender visiting the pursuer's house at Christmas 2001 with gifts. He had then asked after the pursuer. She also confirmed the pursuer's account of the defender coming to the house and filling in the loan application form. Now, had the loan application gone ahead it would have been fraudulent in that the details stated there in relation to the pursuer's then employment were false, a point emphasised by the defender when he came to make his submissions. When cross-examined, Mrs Gibson accepted that she had been party to a false declaration made by the defender when claiming benefit in September 2001. She agreed that she had condoned fraud. Having accepted that her husband's health was all right in the period leading up to the accident, and then being confronted with a general practitioner's certificate dated 6 September 2001 stating that he was unfit for work for the following four weeks (number 6/23 of process), Mrs Gibson retorted "Maybe he had hurt himself. I don't know." I did not find Mrs Gibson very impressive during this passage of evidence but she was generally robust in the face of cross-examination and, as Mr Smith submitted, clear. Her answer to the defender: "You know fine well he was working for you" gives the flavour. She is not of course independent of a party to the case, but that consideration applies equally to the defender and his wife.

[16] Before saying anything more about the defender I would mention the two witnesses led for the defender who spoke to the employment issue: Mrs Kirsten Whyte and Mr Scott Hunter.

[17] Mrs Whyte was impressive: obviously intelligent with a history of responsible employment, she was clear and precise in her evidence, while prepared to make concessions in cross-examination. Although employed full-time elsewhere, she was the bookkeeper for Forth Cleaning Services. She confirmed that in the period 2000 to 2001 Forth Cleaning Services had only one employee and that he was Norman Bennett. She had first seen the pursuer when the defender had pointed him out to her some weeks prior to the first diet of proof. The pursuer had not been in her house. She spoke to Norman Bennett having been dismissed and to her receiving telephone calls after he had left from people saying that he had not been round to clean their windows. These had not been customers of Forth Cleaning Services. She could not recall Forth Cleaning Services having a customer at 11 East Hermitage Place, Edinburgh but she could not be definite. She had typed out the statement that Mr Bennett had signed in the presence of her, Mr Hunter and Ms Cassidy. On the issue as to whether the ladders used by Forth Cleaning Services had safety feet, Mrs Whyte accepted that of the more than two sets of ladders that were kept at the house, it was possible that at least one pair did not have rubber feet attached.

[18] Mr Hunter has been a friend of the defender since their schooldays. In 2001 he had his own window cleaning business, its emphasis being on commercial properties. On occasion the staff of one business would do work for the other business. It was his evidence that only Norman Bennett worked for the defender in 2001. The pursuer did not work for the defender. When asked during examination in chief how he knew that, he replied that he and the defender were then working together on a week to week basis. When further pressed he said that if the defender was working "elsewhere" then "I have no idea". I took from that answer that Mr Hunter acknowledged the possibility that the pursuer might be employed by the defender but that he had not seen anything and did not know anything that might point to that being the case. He was not cross-examined on the matter. When addressing me on the evidence Mr Smith did not suggest that either Mrs Whyte or Mr Hunter should be regarded as incredible. Rather, the view should be taken that their personal knowledge was such that they were not able to speak directly to the issue of employment.

[19] The defender had the difficult task of simultaneously filling the roles of party, witness and advocate. As I have already noted, I consider that he discharged the role of advocate with some ability. Whatever may be the level of his formal education, he came across as an intelligent person. I was somewhat less impressed by his performance as a witness. Like the pursuer, the defender has criminal convictions. The defender's convictions include a High Court conviction for contravention of section 4 (3) (b) of the Misuse of Drugs Act 1971 in relation to a Class A drug, ecstasy. Generally, the defender's evidence lacked spontaneity. It gave the impression of being carefully prepared. In other circumstances I might have taken that by itself to raise questions of credibility but in the present case where the defender clearly had prepared in his role as advocate I saw this as having less weight. What did, however, raise a very substantial question over the defender's credibility in all matters was my conclusion that in relation to the episode of completion of the loan application to the Royal Bank of Scotland, the evidence of the pursuer and Mrs Gibson was to be believed in preference to the defender's denials. That has the result that the defender must be taken to have lied about this. While I do not discount the possibility, suggested by Mrs Whyte, that insofar as the pursuer displayed knowledge of the defender's domestic arrangements he may have learned them from Norman Bennett, given my assessment of the parties and Mr Bennett, I would see it as highly improbable that Mr Bennett would have been able to deceive the defender into adding details on a loan application form in the name of the pursuer by the pretext that the application was to be made by Mr Bennett. That was the explanation given by the defender for him admittedly having completed part of the form. The defender pointed out that the details were such as they might relate to Mr Bennett and that he had been asked by Mr Bennett to complete the form when it was folded over, so obscuring the name of the applicant. I have said that the defender impressed me as being a person of some intelligence. I would not say the same either about the pursuer or Mr Bennett. It appeared to me that devising and executing a scheme of the sort that it is necessary to envisage if the defender is to be believed, was simply beyond the abilities of the pursuer and Mr Bennett.

[20] That I have found the defender to have lied on a matter of significance is clearly of importance when it comes to assessing his credibility overall. Not only does it lead to the conclusion that the defender is someone who is prepared to attempt to deceive the court but it raises the question as to why he was prepared to assist the pursuer in submitting a fraudulent loan application at a time when he claimed in evidence not to have known him. It might suggest that the defender felt under some sort of obligation towards the pursuer, such as might arise from the pursuer having been injured in the course of his employment with the defender. If not that, it might at least indicate that the defender had indeed employed the pursuer at the time when he was injured. The pursuer gave evidence along these lines. His wife wanted the house re-decorated, hence the need for a loan. The defender had kept his job open notwithstanding his injury. The defender had explained that he could not afford to pay sick pay but he proposed that the pursuer should pretend to the Department of Social Security that the pursuer was living in the defender's house, the defender would then claim to be charging rent and the pursuer would receive the "rent cheque". The pursuer volunteered little further detail about this proposal and it was not explored but in referring to it in the context of the loan application it may be that what the pursuer meant was that the "rent cheque" would go to servicing and repaying the loan.

[21] With that review of the evidence and of the witnesses, I come back to the first three of Mr Smith's matters in issue, re-framed by reference to the onus of proof; has the pursuer proved: that he was employed by the defender, that he was injured in the course of that employment, and that he was injured by the fault and negligence of the defender? In mentioning onus of proof I am conscious that, generally speaking, onus is seldom of importance once the evidence has been fully adduced: Jenkins v Allied Ironfounders Ltd 1970 SLT 46 at 53. There are, however, cases where the court is unable to come to a definite conclusion on the evidence, or some part of it, and the question will arise as to which party has to suffer as a result: Thomas v Thomas 1947 SC (HL) 45 at 54. I see this as such a case. Here neither of the principal witnesses has impressed me as entirely trustworthy. I must of course have regard to all the evidence. In coming to a view on the matters in issue I have respectfully followed the example of Lord Glennie in Morton v West Lothian Council [2005] CSOH 142 in attempting to take the approach articulated by Sedley LJ in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 477:

"...a civil judge will not make a discrete assessment of the probable veracity of each item in the evidence; he or she will reach a conclusion on the probable factuality of an alleged event by evaluating all the evidence about it for what it is worth. Some will be so unreliable as to be worthless; some will amount to no more than straws in the wind; some will be indicative but not, by itself, probative; some may be compelling but contra-indicated by other evidence. It is only at the end point that, for want of a better yardstick, a probabilistic test is applied. ... it is fallacious to think of probability (or certainty) as a uniform criterion of fact-finding in our courts; it is no more than the final touchstone, appropriate to the nature of the issue, for testing a body of evidence of often diverse cogency."

Rather, for example, than rejecting a particular piece of evidence or source of evidence as probably false or probably unreliable, I have accordingly tried to consider all the evidence, giving such weight I consider should be attached to its individual parts. What I consider that I must avoid is speculation or, what may be the same thing, constructing a version of events not spoken to by any individual witness.

[22] I have already indicated that I consider there to be no doubt but that the pursuer sustained injury on 22 October 2001. I am satisfied that this injury was caused by the pursuer falling from a height while cleaning windows in the company of Norman Bennett. Given that I accept that he was engaged on cleaning windows I further accept that he fell when using a ladder. It is not disputed that as at that date Norman Bennett was employed by the defender as a window cleaner. Beyond that I am not satisfied that the pursuer has proved his case on a balance of probabilities. In particular, reverting to Mr Smith's questions, I do not consider that he has proved that he was employed by the defender and therefore he has not proved that he was injured in the course of that employment. It follows that the pursuer has not proved that he was so injured by the fault and negligence of the defender. It may be artificial to go beyond that, but had I found it proved that the accident happened as spoken to by the pursuer and that he had been employed by the defender, I would have found that there had been a breach of regulation 4 (3) of the Provision and Use of Work Equipment Regulations 1998 in that I would not consider a ladder without non-slip feet or the equivalent to be suitable for the operation of working at height where the stiles of the ladder rested on slabs. Mr Smith did not insist in his case based on regulation 7 nor, as I understood it, regulation 12. For obvious reasons, it was not maintained that the pursuer received health and safety information or any training in the methods which may be adopted when using the work equipment, any risks which such use may entail or precautions to be taken. Therefore had I found the pursuer to have been injured in the course of his employment, I would have found breaches of regulations 8 and 9 of the 1998 Regulations. I would not, however, have been satisfied on the evidence that these breaches materially contributed to the pursuer's accident. It was not identified what he would have been done differently had the pursuer, who claimed to have the experience of working as a scaffolder, been given information or training. Mr Stewart spoke to the desirability of training as a means of reducing accidents but it was not identified what the content of the information and training should have been. I was not satisfied as to the applicability of regulation 20, which, in any event, as Mr Smith submitted, was superfluous given regulation 4.

[23] Notwithstanding that the defender falls to be assoilzied, I must address Mr Smith's question 4: what is the appropriate value of damages? The pursuer's injuries are described in Professor Court-Brown's report, number 6/34 of process. The pursuer sustained a very comminuted fracture of the left calcaneum. He underwent surgery for reduction using a plate and bone graft on 23 October 2001. This did not heal well. A further operation was necessary to remove the plate. The pursuer suffered significant pain. An arthrodesis was carried on 8 October 2002. While technically successful, this procedure did not result in a reduction in the pain suffered by the pursuer. Consideration was given to a below knee amputation. The pursuer has continued to suffer pain in the heel radiating up the back of his leg. He requires to take analgesics. His walking ability has been severely restricted. He requires a stick or elbow crutch to assist him to walk. He has a valgus heel and stiff foot. He has normal ankle movement but no sub-talar movement. The pursuer's condition will be permanent. Unsurprisingly, the pursuer has felt depressed. He is reliant on anti-depressant and analgesic medication, perhaps to an excessive extent. Mr Smith suggested a figure of £32,000 in respect of solatium with interest on one half of that sum from the date of the accident. In support of that figure Mr Smith referred me to the decisions in Wisely v John Fulton (Plumbers) Ltd 2000 SLT 494, Stirling v Norwest Hoist Ltd 1998 SLT 1379 and Ballantyne v John Young & Co (Kelvinhaugh) Ltd 1996 SLT 358. Had I been awarding damages I would have accepted Mr Smith's suggested figure for solatium. This was a permanently disabling injury to a relatively young man. I would have allowed interest, again on the basis suggested by Mr Smith.

[24] The claim on Record for personal services was not insisted in.

[25] Mr Davies gave evidence in support of the pursuer's wage loss claim under reference to his report, number 6/10 of process. On the basis of that evidence Mr Smith submitted that past wage loss might be stated at £69,020 with future wage loss amounting to £262,905. A difficulty about following this approach was made in cross-examination of Mr Davies by the defender: much depends upon what reliance (if any) that can be placed on the defender's account of his work history. Mr Davies had simply accepted what the pursuer had told him. As I have already indicated, I am not prepared to adopt that approach. Mr Smith did not pretend that the evidence available to the court was satisfactory. He accepted that the pursuer had what Mr Smith described as a sporadic work record. Mr Smith suggested that allowance might be made for the difficulties by discounting what otherwise might be awarded by 50 to 60 per cent.

[26] I accept that the pursuer has established a claim for loss of earning. Whatever his health problems prior to his accident, he appears to have been physically robust. He was only 32 years of age. On no view had he been in very regular employment but he appears to have worked. I have accepted his evidence that he was working when he made a fraudulent claim for benefit. I have not found it proved that he was employed by the defender on the day of his accident but I do accept that he was cleaning windows that day and presumably being paid for that. I accept that as a result of his accident the pursuer has been permanently disabled from undertaking the sorts of employment for which previously he would have been fit. It is unlikely that he will work again. The problem lies in quantifying this head of loss in the absence of any vouching in relation to past employment. Mr Davies puts forward what might be thought to be the fairly modest proposition that the pursuer would have been able to work as a window cleaner at a net annual wage of a little less than £10,000 and that his earnings would have increased with inflation. However, even if one were to accept the pursuer's evidence, that approach would have to be qualified to take account of the pursuer's account of getting bored in other employments, of being in work only "70 to 80 per cent of the time", and of being prepared to work (albeit at the same time as claiming benefit) for £30 to £35 per day cash in hand.

[27] It appears to me that once I recognise that it is probable that the pursuer would have been economically active, to whatever degree and in whatever respect, had it not been for his accident, I must ascribe a sum of damages both to past and future loss but, as Mr Smith's reference to discounting rather suggested, the exercise is in large part an arbitrary one. Applying Mr Smith's higher discount to the lower of the figures given by the pursuer for his daily earnings figures would produce an annual loss of about £3000. Applying that annual figure to the roughly five-year period since the accident would produce £15,000. The principal purpose of discriminating between past and future loss of earnings is to allow for an interest calculation on the past figure. To add interest here would be to suggest that the figure has a greater degree of precision about it than is in fact the case and, accordingly, I would not have added interest. For the future, having regard to the circumstances already mentioned, I would have awarded £30,000 in respect of loss of earning capacity.

[28] I shall assoilzie the defender from the conclusions of the Summons.