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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pocock v The Highland Council [2017] ScotCS CSOH_40 (10 March 2017)
URL: http://www.bailii.org/scot/cases/ScotCS/2017/[2017]CSOH40.html
Cite as: [2017] ScotCS CSOH_40

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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 40

 

PD1373/14

OPINION OF LORD CLARK

In the cause

IAIN POCOCK, Keepers Cottage, Cougie, Tomich, Cannich, Beauly, Inverness-shire, IV4 7LY

Pursuer

against

THE HIGHLAND COUNCIL, a local authority constituted in terms of the Local Government (Scotland) Act 1994 and having its headquarters at Glenurquhart Road, Inverness, IV3 5NX

Defenders

Pursuer:  Brodie QC, McNaughten; Digby Brown LLP

Defender:  Murray, Ledingham Chalmers LLP

10 March 2017

Introduction
[1]        The pursuer avers that, on 9 February 2012, while walking along Baron Taylor Street in the town centre of Inverness, he caught his left foot on the vertical edge of a paving slab which was at a greater height than the adjacent paving slab.  As a result, he tripped and suffered an injury to his left knee.  The pursuer seeks reparation in respect of an alleged breach on the part of the defenders of their common law duty to take reasonable care for the safety of pedestrians, such as the pursuer.  The breach is said to consist of a failure to remedy, within seven days, which failing within 21 days, the existence of the trip hazard (“the defect”) in Baron Taylor Street, which had been identified by the defenders on 20 December 2011.

[2]        Accordingly, in Statement 4, the pursuer avers:

“The defenders had inspected the street on 20 December 2011.  They noted the presence of the defect at the place where the pursuer tripped.  The defective slab was then a defect of more than 20mm.  In terms of the publication “Well-maintained Highways – Code of Practice for Highway Maintenance (2005)” (“the Code”) a defect in a footway of more than 20mm should be repaired within 7 days.  The defenders did not do so.  Had they done so the pursuer would not have tripped on the defect on 9 February 2012.  The defenders inspected the street again on 23 January 2012.  They noted the presence of the defect at the place where the pursuer tripped.  In terms of the Code the defenders could and should have repaired and made safe the defect within 7 days.  They did not do so.  Had they done so the pursuer would not have tripped on the defect on 9 February 2012.”

 

The Evidence
The Pursuer
[3]        The pursuer, Iain Gordon Pocock, is married to Sasha Pocock and they have four children.  The family live on a croft comprising some 30 acres of land at Cougie, situated at the upper end of a valley some seven miles or so from the village of Tomich, Beauly, Inverness‑shire.  Some 10 acres of the croft land is flat, the rest being on a steep hill.  The house and other buildings on the croft are not connected to the National Grid.  Electrical power is provided by two diesel generators and a small wind turbine.  There is no gas supply.

[4]        The family are, in essence, self‑sufficient.  Prior to his accident, the pursuer carried out all of the maintenance and repair works associated with the croft, including work in relation to equipment and fences, to the house and buildings and in respect of the electricity and water supply.  He ingathered, on a very regular basis, the very substantial quantity of wood needed for the open fires and stove in the house, and to provide hot water and central heating.  He described in some detail the intense physical activity required in connection with the felling, gathering and cutting of wood.  These activities, while spread throughout the week, would take up at least three days in total for each week of the year.

[5]        The family kept a number of animals including cows, sheep, chicken, ducks, and sometimes pigs.  The livestock was a major source of food and milk for the family.  Prior to the accident, the pursuer spent a significant part of his time on animal husbandry.  The family also grew vegetables for their own use and again the pursuer had a significant involvement in that activity.  The pursuer also assisted his wife with her pony trekking business.

[6]        The picture painted by the evidence of the pursuer was one of intense physical activity for very substantial periods of time in the running of the croft, with very little, if any, ‘down time’ for rest or recreation.

[7]        On 9 February 2012, the pursuer and his wife visited Inverness.  In the early afternoon they walked along Baron Taylor Street.  It was described by the pursuer as a semi‑pedestrianised, narrow street in the town centre.  The pursuer explained that he caught his left foot on a raised edge of a paving slab, twisted his left leg and fell forward onto the ground.  He was wearing leather boots with a rubber sole.

[8]        The raised paving slab was located at the side of the drainage channel in the centre of the street.  His left foot twisted sideways and he fell forward.  He was in a lot of pain and had hurt his leg very badly.  As he fell forward, his left leg gave way and he “hit the deck”, with excruciating pain in his leg.  He tried to spring back up, but could not do so because of the excruciating pain.  He could not stand up.  His leg wouldn’t support him at all.  He thought it was obvious that he had suffered some damage to his knee.  He thought he had felt tearing of the ligaments.

[9]        He described the paving slab as being raised a few inches, and made of granite or something like it, rather than concrete.  He tried several times to get up but couldn’t put any weight on his left leg.  He had a very sharp, intense and constant pain in his knee.  This was made a great deal worse when he tried to put weight on his leg.

[10]      His wife took him to Raigmore Hospital in Inverness, where he was treated at the Accident and Emergency (“A & E”) department.  When asked what he understood was found by the doctor at Raigmore Hospital, he said he had torn a ligament on the inside of his left knee.  He was given a prescription for painkillers and a plastic leg support or brace, along with two crutches.  When he got home he felt in pain and devastated.  He was concerned because he felt that he had injured his left leg quite badly and had been told it could take months to heal.  He had to use the crutches to get around, because he could not put weight on his left leg.

[11]      A short time after the accident he returned to the locus with his wife and photographs were taken of the paving slab and its immediate surroundings.

 [12]     He described in some detail the effects of the injury on his former daily activities.  Initially, he could not do any of the things he had previously done around the croft.  The knee was very swollen after the accident happened, but about one week later the swelling was much improved.  After about one month, the painkillers were helping to reduce the pain but he was not sleeping well and still could not put weight on his leg.  He described the help that he needed from his wife, and her brother Jodie.  His wife assisted him with bathing, getting around the house, going up and down stairs and going to the toilet.  Jodie gave substantial assistance in relation to the work required around the croft.

[13]      The plastic brace was used for some six months after the accident.  Crutches were used for up to about one year.  During the remainder of 2012 he did not do a great deal of work around the croft, as he was able only to perform what he called light duties.  He could not bear weight on his left leg when standing on muddy ground.  While he made efforts to perform tasks around the croft, the injury created significant limitations.  Occasionally his knee would twist and he would feel increased pain.  Bending the knee caused problems.  From time to time there would be flare‑ups, caused, for example, by twisting his knee.

[14]      Over time, he discovered that he could relieve the symptoms to some degree by manipulating his leg, pulling his left foot back up behind him towards his buttocks, thereby bending his knee.

[15]      He described the pain as being on the inside of his left knee.  When asked if his knee would give way he said he could not bear weight on it if it twisted.  It would feel as if it may give way.  At times he had to keep his leg straight because otherwise it would lock into position and he would be unable to bend his knee.  He experienced this locking effect throughout the year 2012.  His activities were very heavily curtailed.  He experienced frustration and anger because of the injury and this created a strain on his relationships with his older children and his wife.

[16]      In 2013, the pain diminished to some extent but there would still be flare‑ups when he twisted his knee.  He could relieve most of the pain by manipulating his leg, as described above.  The locking of the knee continued in 2013.  His ability to carry out activities around the croft improved to some extent, but he still required substantial help from his children and from Jodie.

[17]      During 2014 and 2015 the frequency of locking of the knee was a great deal less.  There was a general decrease in pain.  There would still be the occasional flare‑ups, associated with twisting of the knee.  Assistance from his children and Jodie was still required although not quite to the same extent.

[18]      In May 2015, he saw a Consultant Orthopaedic Surgeon, Mr Baird, who referred him for an MRI scan.  Following the scan, on 2 September 2015 he discussed with Mr Baird possible surgical treatment of the knee.  The pursuer was advised that he could undergo a meniscectomy which might lead to an improvement in his symptoms. He was told that a small piece of cartilage was torn and was going into the knee socket, and that this could be removed, which would alleviate pain and associated locking of his knee.  He chose not to take up this procedure.  He accepted in his evidence that this procedure had been recommended.  He gave a number of reasons as to why he did not wish to go ahead with it.  These included that he did not want to have invasive surgery and that there would be a period of perhaps six months for recuperation, which he felt he could not afford to take out of his life.  However, he had not ruled out having surgery at some stage.  There had been a reduction over the years in the occasions of locking of the knee.  He said that his GP had told him that the surgery could potentially make matters worse.  This made him concerned.  He had also undergone physiotherapy.  He explained that in the future, because of the effects of his knee injury, he may need to have someone in to help run the croft.

[19]      In cross‑examination he accepted that his children contributed to the tasks around the croft.  He said that on 9 February 2012 he did not see any signs near to Baron Taylor Street warning of the uneven surface.  He did not see any tripping hazard until after he had tripped.  He did not notice the change in level.  He had not torn any ligaments in his knee prior to the accident.  Descriptions of the accident recorded by his Consultant Orthopaedic Surgeon, Mr Shortt, and in the medical records which suggested, respectively, that he caught his left foot in the drainage channel and that he trapped his foot at the kerb, were incorrect records of what he had said.  His recollection was of being told at Raigmore Hospital’s A & E department that he had torn ligaments.  The medical notes recorded that he had suffered a soft tissue injury and was able to stand and walk, but these were inaccurate.  He accepted that he did not attend for certain physiotherapy appointments, but explained that discomfort caused when travelling by car was one of the reasons.

[20]      He was taken through his GP records which, for a significant period of time, from the spring of 2012 until 26 November 2013, made no reference to ongoing symptoms in relation to the knee.  He explained that during that period he was taking painkillers.  The GP records noted that on 26 November 2013 an injury to the left knee had occurred “3/12 ago”.  The pursuer accepted that it was quite possible that he had told that to the GP and he also accepted that the GP could not have obtained that information from anyone else.  The records contained the note “feeling like something stuck” and again the pursuer accepted that he could well have stated that to the GP.  However, when it was put to him that this feeling of something being stuck had occurred in the last few months before November 2013, he denied this and said that in fact the pain had been ongoing for a long time and wasn’t getting much better.  The GP records at that date contain the note “Sounds like a meniscal injury”.

[21]      The pursuer denied that he had injured his knee three months or so prior to 26 November 2013.  He said it was the same injury all along and wasn’t getting better.  He had told the GP he still had a problem and that it was still giving him trouble.  There was no second or separate accident.  He had perhaps overemphasised matters to his doctor in order to get physiotherapy treatment.  He could not remember why he may have said what was noted, but just supposed that seeking to get physiotherapy treatment may have been the reason.  There was no second accident, just another flare‑up.

[22]      He was also shown a referral letter dated 26 November 2013 in which the GP recorded that the pursuer had suffered an injury three years before, in November 2010.  When asked whether he had suffered such an injury before the accident in February 2012, he could not remember such a thing but, if it had happened, it was nothing like the injury suffered in February 2012.  The letter of 26 November 2013 referred to the knee sometimes “popping out” and being intermittently swollen.  The physiotherapy records referred to torn ligaments and the pursuer accepted that he had told that to the physiotherapist.  The physiotherapy records also referred to “twisted 6/12 ago” and noted “increased pain”.  He had quite possibly told that to the physiotherapist but his recollection of dates was not very good.  He might have given a rough figure which would not necessarily be accurate.  He again denied having had a second accident and said this was another flare‑up.

[23]      He was shown extracts from a BBC documentary, which it was put to him was filmed during the period from the summer of 2012 to the summer of 2013.  The documentary was televised in October 2013.  It was put to him that he was shown carrying out various activities such as chopping logs and other physical movements which were inconsistent with his account of the extent and effects of his injury.  Excerpts of the documentary were played which showed the pursuer doing such things as using an axe and a chainsaw to cut firewood, carrying out animal husbandry tasks, carrying out maintenance of a wind turbine by climbing up a metal scaffold and in doing so being able to place weight on his left leg, driving a tractor, kneeling while milking, carrying a stockpot and sliding on a sheet of ice, spinning round a pole in a barn, and working on a diesel generator.

[24]      The pursuer explained that he was not filmed during periods when the knee was bad and that when he was carrying out some of the activities that had been filmed he was focused and aware of what he was doing, and was bracing his leg to avoid unexpected twisting.  He suffered high points and low points in relation to his knee injury.  He denied that he had recovered within six months to one year of the accident and he denied again that there was any second accident.  Other surveillance footage which apparently showed the pursuer walking normally was played.

 

Nick Shortt
[25]      The pursuer led evidence from Mr Nick Shortt, a consultant orthopaedic surgeon with considerable experience in relation to knee injuries.  In his view, the pursuer’s description of the incident was consistent with it having caused both a medial collateral ligament sprain and a medial meniscal tear.  An MRI scan had been carried out in June 2015.  It showed the existence of a medial meniscal tear and evidence of a ligament sprain. In Mr Shortt’s view, the pursuer had suffered both of these injuries in the accident on 9 February 2012.   He referred to the pursuer’s symptoms of pain and locking in the knee.  He had understood from the pursuer that locking had been present from the date of the injury until April 2014, when he had examined the pursuer.  The circumstances of the injury, the rotation of the foot and leg, and how the pursuer fell, were common mechanisms for a meniscal tear to occur.  Excessive stress on the inner aspect of the knee as he fell would sprain or strain the medial collateral ligament.

[26]      After the accident, the pursuer suffered medial knee pain and locking.  Locking is commonly related to a meniscal tear, with displaced fragments of cartilage blocking the normal movement of the knee.  The locking was significant, as a medial collateral ligament injury would not cause mechanical jamming of the knee.

[27]      The pursuer’s description of how he relieved the pain in his knee was consistent with examples of patients who experience locking or pseudo‑locking, who often develop mechanisms to relieve the locking.  In April 2014 the pursuer still had medial joint line tenderness which indicated potential meniscal damage.  On testing, he was intolerant to deliberate compression of the meniscal cartilage.  This was a clear symptom of a medial meniscal tear.  The presence of effusion was consistent with a meniscal tear.

[28]      The locking or jamming of the knee from shortly after the accident was an important consideration in relation to what type of injury had been sustained in the accident.

[29]      A meniscectomy could be performed, involving a resection of the meniscal cartilage to remove the torn fragment.  This would relieve ongoing pain and would also alleviate mechanical locking of the knee joint.  It could be performed by minimally invasive keyhole surgery.  After two weeks rest, the patient could, over the next 6 to 8 weeks, begin to return to normal functioning.  Following that, it would be less problematic for the pursuer to carry out his normal activities.

[30]      In the short term, the surgery would result in no further problems, but in the longer term the pursuer may experience difficulties caused by degenerative changes in his left knee.  After the meniscectomy, the knee would be subjected to increased forces and altered biomechanics which might lead to earlier degenerative changes in the knee joint than would otherwise have occurred.  The fact that the pursuer was a very active person had a bearing on the likelihood of such degenerative changes developing.  Based on the published medical evidence, there was a high likelihood that the pursuer would develop premature degenerative changes.  Reference was made to the relevant medical literature.  The pursuer was likely to develop symptomatic knee arthritis within 15 to 20 years of surgery.  If he worked into his seventies he would find it increasingly difficult to manage the croft.  Difficulties could begin from his early sixties.

[31]      In cross‑examination, it was suggested that the A & E records and the GP records made no mention of symptoms indicative of a medial meniscal tear.  Mr Shortt inferred that the knee had not been examined for such an injury.  Also, those who had examined the pursuer were not orthopaedic specialists.  He accepted that if the pursuer had described symptoms of a medial meniscal tear these would have been noted.  The later entries in the GP and physiotherapy records were consistent with medial meniscal pathology.  But the pursuer had told Mr Shortt of experiencing locking in his knee from an early stage.

[32]      Under reference to the BBC documentary, it was put to Mr Shortt that the pursuer was shown doing the various tasks described above.  He accepted that the footage appeared to show the pursuer doing his tasks without restrictions and without limping or grimacing.

[33]      The physical nature of the pursuer’s activities would prolong his recovery.  Pseudo‑locking involved no mechanical locking as such but severe pain and muscle spasm which created a similar effect.

[34]      Mr Shortt would recommend a meniscectomy.  The pursuer would be back working at some point between four weeks and three months after the surgery.  Development of osteoarthritic symptoms was highly variable and difficult to predict.  He accepted that he has less experience than the defenders’ expert, Mr Keating.  It would not be good for the pursuer’s knee if the pursuer did not have the operation because he would continue to experience symptoms for some time to come.

[35]      In re‑examination he referred to the active lifestyle of the pursuer as relevant to the development of arthritic changes.  The content of the BBC documentary did not cause him to change his opinion.

 

Sasha Pocock /> [36]      Sasha Pocock explained how the accident had occurred and that after it the pursuer could not walk.  She explained that he could not put any weight on his left knee.  She described the assistance she had given him around the house, including in relation to going to the toilet and other aspects of personal care.  She gave a description of the tasks which the pursuer had carried on at the croft prior to the accident and could no longer perform.  She also explained the assistance which Jodie had given.

[37]      She said that during the period after his accident the pursuer went through peaks and troughs.  He discovered that he could move in a certain way to relieve the symptoms.  He would go through periods when he was “not 100%” but was generally able to do some things.  However, if he tweaked or twisted the knee this would restrict his activities.

[38]      In 2012 things were very difficult, the pursuer was always angry and upset, and would shout at the children.  At the time of the BBC documentary, the pursuer was going through these peaks and troughs in respect of his knee injury.  She accepted that one might form the impression from the BBC documentary that there was not much wrong with the pursuer’s knee, but said that he was not in fact fit during the period when it was filmed. He could not do all of the tasks around the croft.  There were times during the period of filming of the documentary when the pursuer could not do anything.  In 2013, there were longer periods between episodes of “popping out” of the knee.

[39]      In cross‑examination she explained that on 9 February 2012 she did not see any unevenness in Baron Taylor Street or any signs warning of unevenness.  She explained that she commonly made GP appointments for the pursuer after flare‑ups occurred with his knee but he often did not attend.  She had no knowledge of any alleged second accident.  She could not recall a second injury and said that, if it had occurred, she would have known about it.  She said that the pursuer’s knee would pop in and out.  She had no clear recollection of GP appointments in relation to the knee in the latter part of 2013 but his knee was the same as it had been for a long time.  He was a very independent person who was very frustrated at the effects of the injury.

 

Ryan Pocock /> [40]      Ryan Pocock gave evidence about the injury causing his father to be “pretty useless” after the accident.  Ryan had to assist with various tasks around the croft, including animal husbandry.  He explained how he and Jodie had stepped forward to deal with matters.  His father’s condition went through stages and when he was hurting he did not do as much as he would on other occasions.  He would complain of his bad knee.  He would rest his knee when it was really bad.  His frustration was “pretty bad”.  His father would set the family to work and he would be in more of a supervisory role than hands‑on.  His father remained unable to do as much as he could previously do and was operating at perhaps 60% to 70% of his previous level of work.  His father suffered a lot of stress as a result.

 

Jodie Pocock /> [41]      Jodie Pocock gave evidence about the extent of his own involvement following upon the accident.  Asked about the BBC documentary, he said that he could understand that someone might think from it that the pursuer could do all the jobs at the croft.  But that was not correct ‑ it was not how the situation was.  It was just the way the documentary makers had gone about the filming.  He listed a number of things which the pursuer could not do. If Jodie did not assist then half of the work on the croft would not be done.

 

Kevin McMahon
[42]      The pursuer led Kevin McMahon, Consulting Engineer, as an expert witness.  He explained his experience in transport and road safety matters.  He estimated a difference in height between the top of the higher paving slab and the surface of the adjacent lower paving slab, on which the pursuer had tripped, as being 28mm.  He did so from the photographs taken by the pursuer and his wife after the accident, which showed a ‘Swan Vestas’ matchbox sitting on the adjacent lower paving slab.

[43]      He was taken to the inspection records of Highland Council and to the history of defects noted at Baron Taylor Street.  The Council’s inspector, Yvonne Low, had identified a problem involving a series of sunken slabs in the drainage channel at Baron Taylor Street on 20 December 2011.  Reference was made to photographs of her findings.  There was a Works Instruction for repair work to be completed by 9 January 2012.  The defect details were noted as “slab loose/broken/defective/trip”.

[44]      This was a defect which, according to the Council’s ‘Road Network Hierarchy and Inspections Policy’, was to be remedied within 21 days.  On 23 January 2012, the footpath inspection record, again made by Yvonne Low, identified defects on Baron Taylor Street involving sunken slabs.  Again photographs were taken.  This was 14 days after the previously identified defect should have been repaired.  The photographs and records noted the same defect as that identified on 20 December 2011 and in terms of the policy this was a trip hazard which required to be fixed within 21 days.

[45]      In the policy document, inspection periods were stated for footways and cycle routes.  Baron Taylor Street fell into the category requiring monthly inspections.  Defects found during safety inspections were to be classified as Category 1 (immediate or imminent hazard), Category 2H (high level of hazard or risk), Category 2M (medium level of hazard or risk), Category 2L (low level of hazard or risk) or Category 3 (negligible impact).  A Category 2H defect had a response time of seven days and a Category 2M defect had a response time of 21 days.  The response times were “intended for temporary repairs to make the defect safe”, stated the policy.

[46]      He was taken to the extracts from the document ‘Well-maintained Highways – Code of Practice for Highway Maintenance (2005)’ (“the Code”) which had been lodged.  Among other things, it referred to how certain other roads authorities dealt with the identification and repair of defects.  The Code itself did not state response times within which defects must be remedied and the witness said that one would find reference in it to a range of response times by individual roads authorities.  In his report, he placed reliance on the intervention level of 20mm and the response time of seven days used by Perth and Kinross Council.

[47]      In the present case, there was a defect in a city centre street which was categorised as a medium level of hazard or risk so that the 21 day period for repair was appropriate.

[48]      The reason why a defect of this kind with a height difference of 20mm or more was a trip hazard was that the vertical face cut perpendicularly along a person’s line of travel at a level at which feet would hit it.  He said that a remedy within seven days was required for a hazard of 20mm or more in depth, that difference in level being what is used by most Scottish roads authorities to identify a trip defect.  He also said that a small number of roads authorities work on the basis of 25mm, but reiterated that most use 20mm as the threshold for intervention.  Of some 25 roads authorities, two use 25mm as the intervention level and others normally use 20mm.

[49]      Whether the defect should be repaired within seven days or 21 days was a matter within the margin of appreciation of the roads authority.

[50]      In cross‑examination it was put to him that there were considerable variations in practice among roads authorities, to which he assented, but he said that the general principles of the Code were carried through by them.

[51]      He accepted that a number of factors were relevant to the identification and remedying of defects, such as resources, the geographical extent of the area covered by the roads authority, the length of the roads and footways in that area, vehicular and pedestrian usage and density, underlying population density, budget, climate and topography of the area.

[52]      It was put to the witness that some roads authorities operate at an investigation level or threshold of 20mm and others at 15mm, to which he assented.  It was also put to him that more than two roads authorities in Scotland use 25mm as the threshold and indeed that six roads authorities use 25mm.  The witness’s position was that until 2015 he was aware of only a small number doing so.  The witness said that 25mm was the highest threshold he had seen and was unaware of whether Strathclyde Regional Council had operated at 40mm in the past.

[53]      He accepted that the guidance in the Code was not prescriptive and that not all Scottish roads authorities use the same threshold level for defects or deal with the same type of defect in the same way.  When asked who exercises the judgement as to what to repair, he said he imagined it would be the area manager.  He accepted that it appeared that the difference in height of the defect in the present case had “got worse”.  He also accepted that the difference in height may not have been as great as 28mm on 20 December 2011.

 

Michael O’Neill
[54]      Mr O’Neill is a Consultant Clinical Psychologist and he gave evidence about the psychological effects of the accident upon the pursuer.  In essence, the pursuer had symptoms of adjustment disorder, with mixed anxiety and depressive mood.

 

Stephen Bennett
[55]      Stephen Bennett was the director of the BBC documentary referred to earlier.  He confirmed that the period of filming was from 8 November 2012 to 16 June 2013.  When arranging periods of filming, the pursuer had on occasions said that particular times were not suitable.  The pursuer had talked about having damage to his knee.  Mr Bennett had also suffered a knee injury and said that” we moaned and groaned to each other”.  The pursuer was often complaining or annoyed about his knee.  Mr Bennett spoke of two specific occasions on which issues about the pursuer’s knee were mentioned to him by the pursuer.  In cross‑examination he explained that he would not switch on the camera and commence filming when the pursuer said he was in pain.

 

John Keating
[56]      Mr John Keating, Consultant Orthopaedic Surgeon, was an expert witness led by the defenders.  From his CV and his oral evidence it was evident that he is a highly experienced surgeon, with a particular specialism, built up over many years, in the knee.

[57]      Mr Keating referred to the results of the MRI scan.  The scan showed that the pursuer had at some point sustained two injuries to his left knee.  These were a medial ligament sprain and a medial meniscal tear.  In simple terms, he had at some point sprained a ligament and at some point torn a cartilage in his left knee.

[58]      Mr Keating explained that the ligament and the cartilage injuries suffered by the pursuer required two different causal mechanisms.  The ligament injury resulted from force being applied to the outer side of the left knee, thus causing the inner or medial ligament to stretch or sprain.  This could happen in the course of a tripping incident, such as that which the pursuer said had occurred.  The cartilage injury resulted from compression of the knee joint coupled with a twisting action.  The cartilage injury could also occur in the course of a tripping incident such as that described by the pursuer.

[59]      However, Mr Keating explained that it was only in a very small percentage of cases that the two injuries were found to have been sustained in the same incident or accident.  For this to happen, there required to be very significant energy involved in the incident.  The examples he gave of when both injuries might occur from one incident included road traffic accidents and falls from scaffolding.  While he could not rule out both injuries to the pursuer having been sustained by the pursuer in the tripping incident on 9 February 2012, he was of the view that on the balance of probabilities this was highly unlikely.  Accordingly, Mr Keating’s opinion was that the pursuer’s injuries resulted from two separate incidents.

[60]      Mr Keating understood from the medical records that the pursuer had not suffered an injury to his left knee prior to 9 February 2012.  There was no suggestion in the pursuer’s evidence of a previous knee injury having occurred.

[61]      As noted above, the pursuer attended at Raigmore Hospital’s A & E department shortly after the accident on 9 February 2012.  He gave an account of his symptoms.  The doctor (a trainee GP) was of the view, based on the notes he made of the symptoms and on his examination of the pursuer, that the injury was a sprained ligament.  Mr Keating’s evidence was that the symptoms recorded by the A & E doctor were not those of a medial meniscal tear.

[62]      On 16 February 2012, the pursuer attended at his GP surgery.  He gave an account of his symptoms.  His GP, Dr McIntyre, noted these and concluded that the injury was a sprained ligament.  Mr Keating’s evidence was again that the symptoms recorded, this time by the GP, were not those of a medial meniscal tear.  The pursuer attended his GP again on 13 March 2012 about his left knee and there was nothing noted in the record of that visit which was indicative of a medial meniscal tear.

[63]      The next occasion when the pursuer attended his GP in relation to his left knee was on 26 November 2013.  On that visit, the GP records noted that the pursuer had suffered an injury “3/12” ago, this being a reference to three months.  That injury was recorded as having involved swelling.

[64]      In February 2014, the pursuer was discharged from his course of physiotherapy.  The discharge notes record that the pursuer had suffered an injury to his left knee “6/12” ago.  This was consistent with an injury having occurred in August or September 2013, which itself was consistent with the entry in the GP records on 26 November 2013.

[65]      Mr Keating explained that the symptoms recorded by the GP in November 2013, and referred to in the discharge notes from the physiotherapist, were consistent with a medial meniscal tear.

[66]      Taking into account all of the evidence now available to him, including the MRI scan, the GP records and the physiotherapy records, Mr Keating’s view was that, on the balance of probabilities, the pursuer had suffered a medial collateral ligament sprain on 9 February 2012 and then at some later date had sustained the medial meniscal tear.  Mr Keating accepted that it was possible that both injuries had occurred on 9 February 2012, although this was highly unlikely.  He also accepted that it was possible that the medial meniscal tear had occurred on 9 February 2012 and that the sprained ligament had occurred on some other occasion.

[67]      Where a person has suffered a medial meniscal tear, the major symptoms which result (such as popping or locking of the knee) can, explained Mr Keating, be prevented by surgery.  A medial meniscal tear commonly results in a segment or flap of cartilage coming into contact with other parts of the knee joint.  The surgery, known as a meniscectomy, involves the removal of the flap of cartilage.  The operation is carried out by keyhole surgery.  Most patients make a very good recovery and Mr Keating was of the view that the pursuer would do so if he undertook a meniscectomy.  One consequence of removing part of the meniscus in a meniscectomy is that the articular surfaces of the primary bones which interact at the knee joint (the femur and the tibia) can be affected by arthritic changes at an earlier point in time than would otherwise be the case.  Mr Keating’s view was that this was not a significant risk in relation to the pursuer.

[68]      Mr Keating was not aware of the evidence given by the pursuer in court.  As is noted above, that evidence included that the pursuer had symptoms of locking of the knee going back to 2012.

 

Yvonne Low
[69]      Yvonne Low is a roads inspector with Highland Council, based in Inverness. She carried out the inspections of Baron Taylor Street referred to in the documents and in particular the inspections on 20 December 2011 and 23 January 2012.  In her inspection of a footway, she would look out for raised slabs, rocking slabs or defective kerbs and a range of other things, such as ponding.  She carried a laptop and would access the computer system to log the defect, tick the box showing its nature and category, and specify the nature of the repair.  A trip hazard with a hard edge level difference in height of 20mm or more was a safety defect.  This height difference was not stated in terms in the Council’s policy but was the basis upon which she proceeded.  She carried a piece of plastic which she used to measure the difference in level.  If she found a height difference of greater than 20mm she would stipulate a seven day repair period.  For a height difference of less than 20mm, it would be a 21 day repair period.  The latter type of defect was something which it was considered would be better attended to in 21 days rather than left to the next monthly inspection.

[70]      Accordingly, if she had stated a 21 day period for repair the height difference must have been less than 20mm.  After an inspection, she would return to the office and print out the Works Instruction to complete the work within the allocated period.  Once the work was done, she would record on the computer system the date when it had been completed.

[71]      She inspected Baron Taylor Street every month as part of the city centre footway inspection.  No trip hazard had been identified in her inspection dated 22 November 2011.  In her inspection of 20 December 2011, she had noted a difference in level and had stated a 21 day repair period so the defect must have involved a height difference of less than 20mm.  In relation to the inspection carried out on 23 January 2012, her findings were virtually identical to those from 20 December 2011.  The difference in height had not gone above 20mm.  A further Works Instruction was issued, again for the defect to be rectified within 21 days.  She reiterated that the height difference was less than 20mm.

[72]      There was a general problem in Baron Taylor Street in that the drainage channel was failing and remedial works had been carried out in February 2012 (after the pursuer’s accident).  She explained what was discovered to be the nature of problem:  the paving slabs which made up the drainage channel area had been embedded in sand and not in concrete and the sand had partly washed out.

[73]      She then described warning signs that been placed at the junctions at both ends of Baron Taylor Street.  These were signs about 3 foot square with white lettering on a red background stating that there was an uneven road surface.

[74]      In cross‑examination she accepted that the Council’s policy was to respond within 21 days to the sort of hazard that she had identified.  She explained that the purpose of her inspections of the footway was that she was looking for a trip hazard, that is a risk to pedestrians of tripping on some defect and falling to their injury.  When asked whether her intention was that repairs should be carried out within the specified period she replied “Ideally” and then later said “yes”.  She agreed that otherwise there was little point in setting a timetable.

[75]      She was taken to the history of issues having been identified in Baron Taylor Street, going back to June 2011.  She accepted that no fencing had been put up around the defect.  The defect identified on 20 December 2011 was a trip hazard.  She accepted that it was possible that she did not take out her piece of plastic to measure the difference in level.  She also accepted the possibility of the defect getting worse in time through deterioration.  The degree of danger involved in a trip hazard could increase.

 

The Pursuer’s Submissions
Breach of Duty
[76]      The defenders are liable in negligence at common law for any failure to remedy a hazard that exists on that roadway.  In exercise of that duty, the defenders were under a duty to take reasonable care to repair the trip hazard, known by the defenders to exist as of 20 December 2011, at Baron Taylor Street, which was the cause of the pursuer’s accident on 9 February 2012.  Reasonable care required the defect to be repaired within seven days, which failing 21 days, of 20 December 2011, and in any event prior to the date of accident.  The defenders had failed so to do, thereby causing the pursuer’s accident and accordingly are under an obligation to make reparation for injury caused by that failure.

[77]      In Scots law a roads authority is liable in negligence at common law for any failure to deal with a hazard that exists on the roads under its control.  A ‘hazard’ for this purpose is something that would present a significant risk of an accident to a person proceeding along the road in question with due skill and care.  Thus, the pursuer must establish that a roads authority of ordinary competence using reasonable care would have identified the hazard (or, indeed did know of the hazard) and would have taken steps to correct it.  Reference was made to MacDonald v Aberdeenshire Council 2014 SC 114 and to Robinson v Scottish Borders Council 2016 SLT 435.

[78]      Reliance was placed upon the evidence of Yvonne Low, her findings on the various inspections and the issuing of the Works Instructions.  The evidence showed that there had existed an abrupt vertical difference in the paving slabs which caused the pursuer to fall on 9 February 2012, being the irregularity shown in the photographs taken by him and his wife, Sasha, within about two weeks of the accident, including those showing the ‘Swan Vestas’ matchbox.  The irregularity, at the time of the accident, constituted an abrupt vertical change of around 28mm in the level of the paving on Baron Taylor Street, as spoken to by Mr McMahon. There was no evidence before the court to proceed on the basis that the irregularity at the time of the accident was materially different from that shown in the photographs.

[79]      Yvonne Low had stated that a differential of greater than 20mm warrants remedial action within seven days.  This was consistent with the policy adopted by the defenders that a Category 2H defect (“high level of hazard or risk”) warranted a seven day response.

[80]      In any event, irrespective of the precise dimensions of the defect on 20 December 2011 and 23 January 2012, Yvonne Low identified the irregularity as a trip hazard that had caused the pursuer to trip.  She noted it as warranting remedial action within 21 days, because it fell within Category 2M (“medium level of hazard or risk”).  She had also accepted in evidence, particularly, in light of the history of Baron Taylor Street, that a defect may quickly deteriorate.

[81]      Thus, irrespective of the precise dimensions of the irregularity as identified on 20 December 2011 and 23 January 2012, it was nonetheless identified by the defenders as a hazard that presented a significant risk of an accident, and constituted a reasonably foreseeable cause of injury known to the defenders as of 20 December 2011.

[82]      The defenders reliance on Yvonne Low’s evidence should be rejected. In cross‑examination she accepted that she could not say that she actually measured the height differential and thus could not say it was 20mm or less.

[83]      The defenders failed in their duty to take reasonable care to rectify such a known hazard by failing to act prior to the date of the pursuer’s accident.  The pursuer’s primary case was that the defenders should have acted within seven days of having identified the hazard, as it presented an abrupt vertical difference of greater than 20mm.  Esto the court rejected the contention that the duty to take reasonable care required repair of a defect known to exist on 20 December 2011, and again identified on 23 January 2012, within seven days of either date, there was nevertheless a failure in that duty to have acted on the defect, known to exist on 20 December 2011, prior to 9 February 2012, in light of the evidence before the court as to what would have been done by a reasonably careful roads authority. Separately, there was a failure by the defenders to take reasonable care to apply their own policy and instructions.

 

Causation and Loss
[84]      The accident of 9 February 2012 caused the pursuer to sustain both a medial collateral ligament sprain and a medial meniscal tear.  Esto the court did not accept that the pursuer sustained both injuries on that date, the court should find that the accident caused the pursuer to sustain a medial meniscal tear.

[85]      Mr Keating’s conclusion in his report was that on the balance of probabilities the pursuer had sustained a medial meniscal tear in the accident.  The only considerations that appeared to cause him later to revise his views were (i) a contention that a second accident may have occurred around August 2013 and, possibly, (ii) evidence in the MRI scan of a healed medial collateral sprain and that in his experience it was rare for both a medial collateral ligament sprain and medial meniscal tear to occur at the same time.  Mr Shortt did not find the chances of these two injuries occurring in the same event as so unusual, making reference to events where the foot is “planted” and rotational and compression forces combine with a force across the knee.  Mr Shortt regarded the description of the pursuer’s accident as consistent with both injuries being suffered at the same time.  Mr Keating accepted that this could happen.

[86]      The court should reject what is alleged to be evidence of a second accident such as might have caused the meniscal tear identified in the MRI scan.  Mr Shortt and Mr Keating agreed that symptoms of clicking or locking of the joint are a highly indicative sign of a meniscal tear, as the torn meniscal cartilage can cause a mechanical block to the action of the joint.  The pursuer gave an account of this being present from not long after the accident and certainly present in 2012, as opposed to having originated in the latter half of 2013.

[87]      It was accepted that the medical evidence was to the effect that the pursuer is a suitable candidate for a meniscectomy.  According to Mr Shortt a period of 6‑8 weeks should see the pursuer able to begin to return to normal function.  Mr Keating spoke to an average recovery period being two months.  There are good prospects that such a procedure would remove the pursuer’s symptoms of pain and decreased function, allowing him to undertake most, if not all, of his pre‑accident activities and to full capacity.

[88]      It was likely that the pursuer would at some point develop osteo‑arthritic changes in the knee as a result of the surgery: the alteration in loading caused by the surgery and associated biological changes are identified by Mr Shortt and Mr Keating, and relevant studies, as the cause of such changes.  There was a material chance the surgery would cause symptomatic degenerative changes resulting in pain and restrictions in the pursuer’s knee movement within the period when he would wish to continue working on the croft. This should be recognised as part of any award of damages.

[89]      In addition, the pursuer had suffered psychological damage, as spoken to in the evidence of Mr O’Neill and in his report.  Reference was also made to the description from Sasha Pocock of the pursuer becoming angry, frustrated and short tempered with the family.  A Schedule of Valuation was produced.

[90]      Overall, the pursuer should be awarded damages in the sum of £72,562.14.  This sum was made up of solatium in the sum of £22,200 (50% to the past and 50% to the future), which included £4,450 in respect of psychological injury.  In respect of future services, £20,533.60 was claimed. The remainder of the sum claimed was in respect of past services and interest.  The figure for solatium was based largely upon The Judicial College Guidelines, at Chapter 4(A) and Chapter 7(M).  There were few authorities of assistance, but reference was made to Young v Scottish Coal (Deep Mining) Co Ltd 2002 SLT 1215, Campbell v Elliot Group Ltd [2009] CSOH 63, Steel v McGill’s Bus Service Ltd [2015] CSOH 5 and Brookes v First Aberdeen Ltd [2010] CSOH 16

 

The Defenders’ Submissions
Liability
[91]      The defenders relied upon the evidence of Yvonne Low, that the height difference on 20 December 2011 was less than 20mm and that at the second inspection on 23 January 2012 it had not changed.  While the photographic evidence suggested the defect was in excess of 25mm in depth some two weeks after the accident, that was not the position at the time of the inspections.  Reference was made to MacDonald v Aberdeenshire Council.

[92]      The question for the court was whether the defenders had failed to do something they ought to have done, by reference to the practice of a reasonable roads authority (Gibson v Strathclyde Regional Council 1993 SLT 1243).  It was insufficient to establish liability simply that a roads authority had failed to meet the terms of its own policy (Syme v Scottish Borders Council 2003 SLT 601).

[93]      The foreseeability of risk of injury in itself was not sufficient, otherwise any level of defect, depression or change in height of a pavement surface would found liability (Nugent v Glasgow City Council [2009] CSOH 88).  As the question was one of reasonable care by a roads authority, there must be some threshold, beyond which the depth of a defect discovered on inspection requires repair within a certain period.  Reference was also made to Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291.

[94]      The defenders were not in breach of any duty of care in respect of the pursuer.  The pursuer seeks to establish the standard by which the defenders are to be judged by reference to the Code.  Mr McMahon accepted that the Code is a benchmark for roads authorities, but they might justifiably depart from the Code for a variety of reasons, including population density, amount of use of the road or footpath, climate, topography and budgetary considerations.  The practice of Yvonne Low in notifying a repair period of 21 days for a defect of less than 20mm in depth exceeds the requirements of a reasonable roads authority, whether measured by the guidance contained in the Code, or the practice of other Scottish roads authorities mentioned in evidence.

[95]      Ms Low gave very clear evidence of her line manager arranging for the placing of ‘uneven surface’ warning signs on Baron Taylor Street prior to the accident.  Her description of the signs was lucid. She said with confidence that she remembered seeing the signs in position at either end of Baron Taylor Street.  There was no real challenge to her evidence on those points.  There was no direct proof that the warning signs were in place on 9 February 2012, but the court should draw the inference that they had been in position at Baron Taylor Street for some time and that they were still there at the time of the pursuer’s accident.

 

Causation and Loss
[96]      Reliance was placed on the records of Raigmore Hospital A & E department for 9 February 2012.  These pointed to a medial collateral ligament strain and not a meniscal tear.  The pursuer’s account that he could not weight-bear at all does not accord with the records.  The GP records supported the same conclusion.

[97]      There was a second injury.  The record of the pursuer’s attendance at his GP on 26 November 2013 clearly noted that the pursuer had suffered an injury to his left knee three months previously.  It was objectively unlikely that the record was incorrect, since it was followed by the note that the pursuer had two months of medial pain.  In any event, the pursuer accepted in cross‑examination that he had told this to the GP and the information had not come from anywhere else.  The pursuer’s subsequent denial of a second injury was not credible, given his earlier answer.  The impression of the GP on 26 November 2013 was that there had been a meniscal injury.  The pursuer’s GP was not therefore in ignorance of what symptoms were associated with a meniscal tear.  The GP’s record of the pursuer’s account of a second injury was corroborated by the physiotherapy record.

[98]      The clinical picture supported the conclusion that the medial collateral ligament injury was sustained on 9 February 2012.  There were no clinical indications that a meniscal tear injury occurred at that time.  The BBC documentary supported those conclusions.

[99]      The BBC documentary was consistent in all respects with the defenders’ case.  In it, the pursuer was at no point shown grimacing or having any difficulty with any of his tasks.  The pursuer’s explanation that he was nevertheless struggling with crofting tasks required careful scrutiny.

[100]    In relation to the alleged psychiatric injury, Mr O’Neill’s report was based on the subjective account of the pursuer.  He did not have any other information available to him in reaching an opinion.  There were no entries in the medical records tending to suggest that the pursuer has at any time suffered from a psychological or psychiatric condition.  Any psychological difficulties the pursuer had experienced since August 2013 related to the consequences of the meniscal tear caused by a second accident at around that time.

[101]    Mr Shortt and Mr Keating did not suggest that the meniscectomy itself might make things worse.  On the contrary, their evidence was of an excellent outcome following surgery.  The pursuer should have followed the recommendation of Mr Baird.  Reference was made to British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited [1912] AC 673, McAuley v London Transport Executive [1957] 2 Ll R 500 (CA),  and Marcroft v Scruttons [1954] 1 Ll Rep 395 (CA).

[102]    If the defenders’ case that the pursuer sustained only a strain to the medial collateral ligament on 9 February 2012 was not accepted, then there was nonetheless a failure by the pursuer to mitigate his loss. The pursuer could have had normal function in his knee restored in a meniscectomy operation following his consultation with Mr Baird on 2 September 2015.  Mr Shortt’s prognosis as to future degenerative changes following that operation was too pessimistic for the reasons explained by Mr Keating.  On the balance of probabilities it was unlikely the pursuer would develop symptoms of osteoarthritic change at a time when it would interfere with his running of the croft.

[103]    In relation to quantum, reference was made to:  the Judicial College Guidelines;  Watson v Hillingdon (K&K I6-028) (28 Oct 2004);  Gildert v John Wilman Ltd (K&K I6-031) (4 May 2000);  McFarlane v Drew (K&K I6-030) (24 April 2003);  Honisz v Lothian Health Board 2008 SC 235;  Rimmer v Baxter Construction Ltd (K&K I1-045) (9 July 2008);  Stanhope v Molyneux (K&K I6-044) (11 Feb 2003);  McCreadie v Clairmont Garments (Scotland) Ltd 1993 SLT 823;  and Devaney v Arthur Bell & Sons Ltd 1991 GWD 14-870.  An award of £4,000 for solatium would be appropriate, having regard to the Judicial College Guidelines and the cases of McCreadie and Deveney.

[104]    The true period in which the pursuer incurred necessary personal services was between 9 February 2012 and around November 2012.  The evidence of the pursuer and his family members as to his abilities on the croft during this period was unreliable.  A lump sum award of £1,000 would be appropriate in all the circumstances.

[105]    The pursuer accepted in cross‑examination that he had not seen the defect that caused him to trip.  He could be found to have been contributorily negligent in that respect.  Reference was made to Ferguson v Strathclyde RC 1981 SLT (Notes) 103 and Brown v City of Edinburgh Council 1999 SLT (Sh Ct) 43.

 

Decisions and Reasons
The Evidence
[106]    The pursuer, his wife, their son Ryan and their relative Jodie Pocock all struck me as honest witnesses and I have no hesitation in accepting their evidence as credible and reliable.  It may be the case that the pursuer’s evidence to some degree over‑emphasised the effects of the accident and that the BBC documentary supported the view that his injuries were not quite as severe as he had stated, but I regard any difference as being largely immaterial.  In relation to the documentary, I accept the evidence from the pursuer and Mr Bennett to the effect that there were points in time when filming could not take place because of the pursuer’s knee injury.  In broad terms, the pursuer’s evidence as to the nature and effect of his injury was supported by the evidence of the other witnesses.

[107]    I deal with the evidence of Kevin McMahon and Yvonne Low below.

[108]    The medical evidence from Mr Shortt and Mr Keating was impressive, clear and helpful.  There were two main issues on which they differed:  (i) the likelihood of both injuries being suffered in the same accident; and (ii) the prognosis for degenerative arthritic changes in the knee joint following upon a meniscectomy.  I consider these points below.

 

Liability
[109]    In MacDonald v Aberdeenshire Council, Lord Drummond Young explained (at paras 63 ‑ 65) the nature and content of the common law duty of care of a roads authority in Scots law.  In particular, he noted (at para 64) that:

“…the authority must be at fault in failing to deal with the hazard.  This means that the pursuer must establish that a roads authority of ordinary competence using reasonable care would have identified the hazard and would have taken steps to correct it…”

 

In the present case, the key issue in relation to liability is whether the pursuer has established that a roads authority of ordinary competence using reasonable care would have taken steps to correct the identified hazard within the period prior to the pursuer’s accident.

[110]    Understandably, as he was not present, Mr McMahon could not speak to the height difference at the dates of the two inspections relied upon.  His estimate of 28mm was based on photographs taken two weeks or so after the accident.  He expressly accepted that the height difference may not have been as great as 28mm on 20 December 2011.  

[111]    Yvonne Low was clear that on both inspections the height difference was less than 20mm.  It is true that she accepted in cross-examination that it was possible that she had not taken out the piece of plastic she carried with her, to measure the height difference.  But this was a possibility and was neither suggested to her nor stated by her to be a probability.  How she had arrived at the clear view she expressed, several times in her evidence, that the height difference was less than 20mm was not explored any further.  Moreover, it was not put to her that the height difference was greater than 20mm at the date of the inspections or that the figure she had given in evidence of it being less than 20mm was for any other reason incorrect.

[112]    Yvonne Low came across as a careful individual, who took her job very seriously.  She was fully aware of the significance of tripping hazards and of her own role in identifying hazards in particular categories.  I was left in no real doubt that if she had come across a hazard with a height difference of greater than 20mm she would have classified it as falling within Category 2H and hence requiring repair within seven days.

[113]    Clearly, it is the height difference at the dates of the inspections which is of primary importance.  The only evidence from those dates was that it was less than 20mm, at both inspections.  The result is that the evidence of the pursuer’s expert Mr McMahon, who addressed the issues largely if not entirely on the basis that the height difference was 28mm, was of little relevance. Moreover, both he and Yvonne Low accepted that the height difference could have changed between the date of inspection and the date of the accident.  

[114]    Of course, the defect was nonetheless, as Yvonne Low accepted, a trip hazard which fell within Category 2M and the Council’s policy was to repair it within 21 days.  However, a failure by the Council to follow its own policy or plan is not of itself sufficient to establish a failure to exercise reasonable care (see Syme v Scottish Borders Council, at paras 18 and 20).  The policy cannot dictate the content of the duty of reasonable care.  The purpose of the hierarchy within the policy, according to paragraph 1.3 of the document, is “to provide the basis for a maintenance strategy and enable the prioritisation of works activities…”.  It is “…a tool to determine where resources should be prioritised”.

[115]    The evidence did not establish precisely why the defect was not repaired within 21 days, but Yvonne Low explained the nature of the problems with the paving at Baron Taylor Street.  The simple ascription of a repair period of 21 days in accordance with the Council’s policy is only one factor to be taken into account.  Regard must be had to the whole relevant circumstances and in particular to the height difference at the dates of the two inspections.

[116]    There was also an absence of evidence about the practices of other roads authorities in Scotland capable of supporting the pursuer’s position.  Mr McMahon’s evidence was that for the vast majority of roads authorities the intervention level was 20mm, that is, greater than the height difference spoken to by Yvonne Low as being found by her.

[117]    The extracts produced from the Code were of very limited assistance.  On the information produced, the Code itself does not stipulate a height difference in a hazard which is the threshold at which repair is required, or a period of time within which it should be remedied.  In relation to these matters, the Code refers to the practice of two other roads authorities.  The first example is Westminster Council, which states an “investigatory level” of 15mm depth for a “trip/pothole”.  However, no response or remedial time period is stated, nor was there any explanation in the evidence of the consequences of a height difference reaching the “investigatory level”.  The second example is Perth & Kinross Council.  Its policy includes within the category “Defects presenting a moderate level of hazard or risk”, which have a repair time period of seven days, “trip or other abrupt level differences in footway or kerb exceeding 20mm”.  On the information given in evidence, it includes no reference to trip hazards with a height difference of less than 20mm.  What can be taken from the approach of Perth & Kinross Council is that a height difference of greater than 20mm falls, on their analysis, into the category of a moderate level of hazard or risk.

[118]    The pursuer led no evidence that a roads authority of ordinary competence exercising reasonable care required to repair, within 21 days, a hazard created by a height difference of less than 20mm.  As noted, Mr McMahon proceeded upon the basis that the defenders required to repair defects of greater than 20mm within specific periods.  He did not deal at any stage with the repair of defects of less than 20mm.  Moreover his statement that after the inspection of 23 January 2012 the defender should have repaired the defect within seven days appears to proceed on the same basis as his earlier conclusions: that the height difference was 28mm.  Further, the case pled for the pursuer is of a duty to repair a defect with a height difference of greater than 20mm within seven days or at most within 21 days.  No case is made about a requirement to repair a defect of less than 20mm or to do so within seven days following upon a failure to repair within the stated 21 days.

I also take into account that there were other issues identified by Yvonne Low in Baron Taylor Street from at least June 2011.  It was known to be a location prone to problems.  However, it was regularly inspected to identify specific problems and the trip hazard in this case did not appear in the inspection records prior to December 2011.

[119]    I therefore conclude that the pursuer has failed to establish the key factual basis of his pleaded case: that the defect, at the date of its identification, involved a height difference of greater than 20mm.  Further, the pursuer has not established that, in the exercise of reasonable care, the defenders required to repair the identified defect within 21 days or within the period between the first inspection and the date of the pursuer’s accident.  To use the test articulated by Lord Drummond Young in Macdonald, the pursuer has not established that a roads authority of ordinary competence using reasonable care would have taken the steps identified by the pursuer to correct the defect.

[120]    The defenders contended that the warning signs said to have been placed at either end of Baron Taylor Street had sufficiently warned the pursuer of the surface being uneven and hence that there was no breach of duty.  I reject that submission.  There was no evidence confirming that the signs were actually in place at the material time or as to precisely where they were located.  There was also insufficient evidence as to the prominence of the signs and more particularly as to whether these signs would properly be understood by pedestrians exercising reasonable care as warning about trip hazards, given that they refer to the road surface and make no specific mention of the kind of hazard which pedestrians might encounter.

[121]    There was also a suggestion in the defenders’ submissions of contributory negligence on the part of the pursuer, based on a failure to notice the tripping hazard.  In my opinion, it was simply not established in the evidence that an individual exercising reasonable care for his own safety would have noticed and avoided the hazard.  As I have held above, the pursuer has not established that it was any greater than 20mm in depth.

 

 

Causation and Loss
[122]    I can deal with the issues of causation and loss fairly briefly.  In view of the pursuer’s evidence as to the existence of symptoms of locking of the knee during 2012, and the other supporting evidence, and my view of him as a generally credible and reliable witness, I conclude that he must have suffered a medial meniscal tear in the accident on 9 February 2012.

[123]    In relation to the contention that he had suffered an accident some three months prior to November 2013, there is no doubt that the GP and physiotherapy records contain material broadly supportive of that position.  However, the court did not hear evidence from the authors of these records.  The court had the pursuer’s evidence as how these erroneous entries could have occurred and his clear rejection of the suggestion that he suffered a second injury.  I take the view that the reference in the GP records to an accident three months prior to November 2013, and the reference in the physiotherapy discharge letter of an accident six months prior to February 2014, were either incorrect recordings of what the pursuer had stated to these medical professionals or were things said for the reasons explained by the pursuer.  It is possible to read the pursuer’s evidence as being to the effect that he had explained to the GP and the physiotherapist that some tweaking or twisting had occurred at that point in time (August or September 2013) and that may have been misunderstood to be a separate incident rather than merely a movement which exacerbated the pain and other symptoms of an already existing medial meniscal tear.  Accordingly, I accept that the pursuer did not suffer a second discrete injury of the nature of a medial meniscal tear.

[124]    I accept the very convincing evidence of Mr Keating that, in an accident of the kind which occurred on 9 February 2012, it is highly unlikely that the medial collateral ligament strain and the medial meniscal tear would have been suffered.  The MRI scan in June 2015 confirmed the presence of both injuries.  However, having accepted the pursuer’s evidence as truthful, all that can really be said is that as well as suffering the medial meniscal tear in February 2012, at some stage the pursuer also suffered a medial collateral ligament strain.  He did speak of twisting his knee on several occasions.

[125]    In relation to when it would have been reasonable for the pursuer to undergo a meniscectomy, the pursuer’s position was that it was for the defenders to prove, in alleging a failure to mitigate, the point in time when this should have occurred.  There was no clear evidence on the point which would allow the defenders to discharge that onus.  The pursuer’s position was that, as at the date of the proof, it was now reasonable for it to be undertaken.  The defenders contended that the pursuer should have undergone a meniscectomy as soon as possible after 2 September 2015, which was the date on which Mr Baird advised that it should be done.  This was supported by the advice tendered by Mr Shortt in 2014 and the advice from the GP referred to in evidence.

[126]    In my opinion, the defenders have proved that the pursuer failed to mitigate his loss by not undergoing a meniscectomy.  If, as the pursuer concedes, it was at the date of the proof reasonable for the pursuer to take that course, I can discern no good reason why it was not reasonable for him to do so within an appropriate period after Mr Baird tendered his advice.  However, the defenders led no evidence as to the waiting time for such an operation. Had it been necessary to decide the point, I would therefore have required to take a broad view. Building in a period of waiting time for such an operation and recovery, I would have been inclined to conclude that the pursuer would have been in a position at the latest one year after 2 September 2015 to re‑commence all of his normal activities.  I would therefore have limited the past services claim to 2 September 2016.

[127]    On the question of the likelihood of future degenerative changes in the event that the pursuer undergoes a meniscectomy, I prefer the evidence of Mr Keating and I am not persuaded that the pursuer has established the likelihood of these occurring.

[128]    I accept the evidence of Mr O’Neill, which was not contradicted, that the pursuer did suffer the psychological ill-effects following the accident which were noted in Mr O’Neill’s report.

[129]    In these circumstances, had I found the defenders liable, I would have awarded £15,000 in respect of past solatium, taking the view that the pursuer suffered a meniscal injury of moderate severity, but with no future problems after a meniscectomy, and with psychological ill-effects of the kind and for the duration spoken to by Mr O’Neill.  I would have accepted as entirely reasonable the pursuer’s calculations as to past services.  However, as noted above, I would have restricted the award in that respect to the period from the accident up to 2 September 2016.  I would have made no award for future solatium or future services.

 

Conclusion
[130]    For the reasons I have given, I shall grant decree of absolvitor in favour of the defenders.


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URL: http://www.bailii.org/scot/cases/ScotCS/2017/[2017]CSOH40.html

IAIN POCOCK AGAINST THE HIGHLAND COUNCIL [2017] ScotCS CSOH_40 (10 March 2017)

Web Blue CoS

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 40

 

PD1373/14

OPINION OF LORD CLARK

In the cause

IAIN POCOCK, Keepers Cottage, Cougie, Tomich, Cannich, Beauly, Inverness-shire, IV4 7LY

Pursuer

against

THE HIGHLAND COUNCIL, a local authority constituted in terms of the Local Government (Scotland) Act 1994 and having its headquarters at Glenurquhart Road, Inverness, IV3 5NX

Defenders

Pursuer:  Brodie QC, McNaughten; Digby Brown LLP

Defender:  Murray, Ledingham Chalmers LLP

10 March 2017

Introduction
[1]        The pursuer avers that, on 9 February 2012, while walking along Baron Taylor Street in the town centre of Inverness, he caught his left foot on the vertical edge of a paving slab which was at a greater height than the adjacent paving slab.  As a result, he tripped and suffered an injury to his left knee.  The pursuer seeks reparation in respect of an alleged breach on the part of the defenders of their common law duty to take reasonable care for the safety of pedestrians, such as the pursuer.  The breach is said to consist of a failure to remedy, within seven days, which failing within 21 days, the existence of the trip hazard (“the defect”) in Baron Taylor Street, which had been identified by the defenders on 20 December 2011.

[2]        Accordingly, in Statement 4, the pursuer avers:

“The defenders had inspected the street on 20 December 2011.  They noted the presence of the defect at the place where the pursuer tripped.  The defective slab was then a defect of more than 20mm.  In terms of the publication “Well-maintained Highways – Code of Practice for Highway Maintenance (2005)” (“the Code”) a defect in a footway of more than 20mm should be repaired within 7 days.  The defenders did not do so.  Had they done so the pursuer would not have tripped on the defect on 9 February 2012.  The defenders inspected the street again on 23 January 2012.  They noted the presence of the defect at the place where the pursuer tripped.  In terms of the Code the defenders could and should have repaired and made safe the defect within 7 days.  They did not do so.  Had they done so the pursuer would not have tripped on the defect on 9 February 2012.”

 

The Evidence
The Pursuer
[3]        The pursuer, Iain Gordon Pocock, is married to Sasha Pocock and they have four children.  The family live on a croft comprising some 30 acres of land at Cougie, situated at the upper end of a valley some seven miles or so from the village of Tomich, Beauly, Inverness‑shire.  Some 10 acres of the croft land is flat, the rest being on a steep hill.  The house and other buildings on the croft are not connected to the National Grid.  Electrical power is provided by two diesel generators and a small wind turbine.  There is no gas supply.

[4]        The family are, in essence, self‑sufficient.  Prior to his accident, the pursuer carried out all of the maintenance and repair works associated with the croft, including work in relation to equipment and fences, to the house and buildings and in respect of the electricity and water supply.  He ingathered, on a very regular basis, the very substantial quantity of wood needed for the open fires and stove in the house, and to provide hot water and central heating.  He described in some detail the intense physical activity required in connection with the felling, gathering and cutting of wood.  These activities, while spread throughout the week, would take up at least three days in total for each week of the year.

[5]        The family kept a number of animals including cows, sheep, chicken, ducks, and sometimes pigs.  The livestock was a major source of food and milk for the family.  Prior to the accident, the pursuer spent a significant part of his time on animal husbandry.  The family also grew vegetables for their own use and again the pursuer had a significant involvement in that activity.  The pursuer also assisted his wife with her pony trekking business.

[6]        The picture painted by the evidence of the pursuer was one of intense physical activity for very substantial periods of time in the running of the croft, with very little, if any, ‘down time’ for rest or recreation.

[7]        On 9 February 2012, the pursuer and his wife visited Inverness.  In the early afternoon they walked along Baron Taylor Street.  It was described by the pursuer as a semi‑pedestrianised, narrow street in the town centre.  The pursuer explained that he caught his left foot on a raised edge of a paving slab, twisted his left leg and fell forward onto the ground.  He was wearing leather boots with a rubber sole.

[8]        The raised paving slab was located at the side of the drainage channel in the centre of the street.  His left foot twisted sideways and he fell forward.  He was in a lot of pain and had hurt his leg very badly.  As he fell forward, his left leg gave way and he “hit the deck”, with excruciating pain in his leg.  He tried to spring back up, but could not do so because of the excruciating pain.  He could not stand up.  His leg wouldn’t support him at all.  He thought it was obvious that he had suffered some damage to his knee.  He thought he had felt tearing of the ligaments.

[9]        He described the paving slab as being raised a few inches, and made of granite or something like it, rather than concrete.  He tried several times to get up but couldn’t put any weight on his left leg.  He had a very sharp, intense and constant pain in his knee.  This was made a great deal worse when he tried to put weight on his leg.

[10]      His wife took him to Raigmore Hospital in Inverness, where he was treated at the Accident and Emergency (“A & E”) department.  When asked what he understood was found by the doctor at Raigmore Hospital, he said he had torn a ligament on the inside of his left knee.  He was given a prescription for painkillers and a plastic leg support or brace, along with two crutches.  When he got home he felt in pain and devastated.  He was concerned because he felt that he had injured his left leg quite badly and had been told it could take months to heal.  He had to use the crutches to get around, because he could not put weight on his left leg.

[11]      A short time after the accident he returned to the locus with his wife and photographs were taken of the paving slab and its immediate surroundings.

 [12]     He described in some detail the effects of the injury on his former daily activities.  Initially, he could not do any of the things he had previously done around the croft.  The knee was very swollen after the accident happened, but about one week later the swelling was much improved.  After about one month, the painkillers were helping to reduce the pain but he was not sleeping well and still could not put weight on his leg.  He described the help that he needed from his wife, and her brother Jodie.  His wife assisted him with bathing, getting around the house, going up and down stairs and going to the toilet.  Jodie gave substantial assistance in relation to the work required around the croft.

[13]      The plastic brace was used for some six months after the accident.  Crutches were used for up to about one year.  During the remainder of 2012 he did not do a great deal of work around the croft, as he was able only to perform what he called light duties.  He could not bear weight on his left leg when standing on muddy ground.  While he made efforts to perform tasks around the croft, the injury created significant limitations.  Occasionally his knee would twist and he would feel increased pain.  Bending the knee caused problems.  From time to time there would be flare‑ups, caused, for example, by twisting his knee.

[14]      Over time, he discovered that he could relieve the symptoms to some degree by manipulating his leg, pulling his left foot back up behind him towards his buttocks, thereby bending his knee.

[15]      He described the pain as being on the inside of his left knee.  When asked if his knee would give way he said he could not bear weight on it if it twisted.  It would feel as if it may give way.  At times he had to keep his leg straight because otherwise it would lock into position and he would be unable to bend his knee.  He experienced this locking effect throughout the year 2012.  His activities were very heavily curtailed.  He experienced frustration and anger because of the injury and this created a strain on his relationships with his older children and his wife.

[16]      In 2013, the pain diminished to some extent but there would still be flare‑ups when he twisted his knee.  He could relieve most of the pain by manipulating his leg, as described above.  The locking of the knee continued in 2013.  His ability to carry out activities around the croft improved to some extent, but he still required substantial help from his children and from Jodie.

[17]      During 2014 and 2015 the frequency of locking of the knee was a great deal less.  There was a general decrease in pain.  There would still be the occasional flare‑ups, associated with twisting of the knee.  Assistance from his children and Jodie was still required although not quite to the same extent.

[18]      In May 2015, he saw a Consultant Orthopaedic Surgeon, Mr Baird, who referred him for an MRI scan.  Following the scan, on 2 September 2015 he discussed with Mr Baird possible surgical treatment of the knee.  The pursuer was advised that he could undergo a meniscectomy which might lead to an improvement in his symptoms. He was told that a small piece of cartilage was torn and was going into the knee socket, and that this could be removed, which would alleviate pain and associated locking of his knee.  He chose not to take up this procedure.  He accepted in his evidence that this procedure had been recommended.  He gave a number of reasons as to why he did not wish to go ahead with it.  These included that he did not want to have invasive surgery and that there would be a period of perhaps six months for recuperation, which he felt he could not afford to take out of his life.  However, he had not ruled out having surgery at some stage.  There had been a reduction over the years in the occasions of locking of the knee.  He said that his GP had told him that the surgery could potentially make matters worse.  This made him concerned.  He had also undergone physiotherapy.  He explained that in the future, because of the effects of his knee injury, he may need to have someone in to help run the croft.

[19]      In cross‑examination he accepted that his children contributed to the tasks around the croft.  He said that on 9 February 2012 he did not see any signs near to Baron Taylor Street warning of the uneven surface.  He did not see any tripping hazard until after he had tripped.  He did not notice the change in level.  He had not torn any ligaments in his knee prior to the accident.  Descriptions of the accident recorded by his Consultant Orthopaedic Surgeon, Mr Shortt, and in the medical records which suggested, respectively, that he caught his left foot in the drainage channel and that he trapped his foot at the kerb, were incorrect records of what he had said.  His recollection was of being told at Raigmore Hospital’s A & E department that he had torn ligaments.  The medical notes recorded that he had suffered a soft tissue injury and was able to stand and walk, but these were inaccurate.  He accepted that he did not attend for certain physiotherapy appointments, but explained that discomfort caused when travelling by car was one of the reasons.

[20]      He was taken through his GP records which, for a significant period of time, from the spring of 2012 until 26 November 2013, made no reference to ongoing symptoms in relation to the knee.  He explained that during that period he was taking painkillers.  The GP records noted that on 26 November 2013 an injury to the left knee had occurred “3/12 ago”.  The pursuer accepted that it was quite possible that he had told that to the GP and he also accepted that the GP could not have obtained that information from anyone else.  The records contained the note “feeling like something stuck” and again the pursuer accepted that he could well have stated that to the GP.  However, when it was put to him that this feeling of something being stuck had occurred in the last few months before November 2013, he denied this and said that in fact the pain had been ongoing for a long time and wasn’t getting much better.  The GP records at that date contain the note “Sounds like a meniscal injury”.

[21]      The pursuer denied that he had injured his knee three months or so prior to 26 November 2013.  He said it was the same injury all along and wasn’t getting better.  He had told the GP he still had a problem and that it was still giving him trouble.  There was no second or separate accident.  He had perhaps overemphasised matters to his doctor in order to get physiotherapy treatment.  He could not remember why he may have said what was noted, but just supposed that seeking to get physiotherapy treatment may have been the reason.  There was no second accident, just another flare‑up.

[22]      He was also shown a referral letter dated 26 November 2013 in which the GP recorded that the pursuer had suffered an injury three years before, in November 2010.  When asked whether he had suffered such an injury before the accident in February 2012, he could not remember such a thing but, if it had happened, it was nothing like the injury suffered in February 2012.  The letter of 26 November 2013 referred to the knee sometimes “popping out” and being intermittently swollen.  The physiotherapy records referred to torn ligaments and the pursuer accepted that he had told that to the physiotherapist.  The physiotherapy records also referred to “twisted 6/12 ago” and noted “increased pain”.  He had quite possibly told that to the physiotherapist but his recollection of dates was not very good.  He might have given a rough figure which would not necessarily be accurate.  He again denied having had a second accident and said this was another flare‑up.

[23]      He was shown extracts from a BBC documentary, which it was put to him was filmed during the period from the summer of 2012 to the summer of 2013.  The documentary was televised in October 2013.  It was put to him that he was shown carrying out various activities such as chopping logs and other physical movements which were inconsistent with his account of the extent and effects of his injury.  Excerpts of the documentary were played which showed the pursuer doing such things as using an axe and a chainsaw to cut firewood, carrying out animal husbandry tasks, carrying out maintenance of a wind turbine by climbing up a metal scaffold and in doing so being able to place weight on his left leg, driving a tractor, kneeling while milking, carrying a stockpot and sliding on a sheet of ice, spinning round a pole in a barn, and working on a diesel generator.

[24]      The pursuer explained that he was not filmed during periods when the knee was bad and that when he was carrying out some of the activities that had been filmed he was focused and aware of what he was doing, and was bracing his leg to avoid unexpected twisting.  He suffered high points and low points in relation to his knee injury.  He denied that he had recovered within six months to one year of the accident and he denied again that there was any second accident.  Other surveillance footage which apparently showed the pursuer walking normally was played.

 

Nick Shortt
[25]      The pursuer led evidence from Mr Nick Shortt, a consultant orthopaedic surgeon with considerable experience in relation to knee injuries.  In his view, the pursuer’s description of the incident was consistent with it having caused both a medial collateral ligament sprain and a medial meniscal tear.  An MRI scan had been carried out in June 2015.  It showed the existence of a medial meniscal tear and evidence of a ligament sprain. In Mr Shortt’s view, the pursuer had suffered both of these injuries in the accident on 9 February 2012.   He referred to the pursuer’s symptoms of pain and locking in the knee.  He had understood from the pursuer that locking had been present from the date of the injury until April 2014, when he had examined the pursuer.  The circumstances of the injury, the rotation of the foot and leg, and how the pursuer fell, were common mechanisms for a meniscal tear to occur.  Excessive stress on the inner aspect of the knee as he fell would sprain or strain the medial collateral ligament.

[26]      After the accident, the pursuer suffered medial knee pain and locking.  Locking is commonly related to a meniscal tear, with displaced fragments of cartilage blocking the normal movement of the knee.  The locking was significant, as a medial collateral ligament injury would not cause mechanical jamming of the knee.

[27]      The pursuer’s description of how he relieved the pain in his knee was consistent with examples of patients who experience locking or pseudo‑locking, who often develop mechanisms to relieve the locking.  In April 2014 the pursuer still had medial joint line tenderness which indicated potential meniscal damage.  On testing, he was intolerant to deliberate compression of the meniscal cartilage.  This was a clear symptom of a medial meniscal tear.  The presence of effusion was consistent with a meniscal tear.

[28]      The locking or jamming of the knee from shortly after the accident was an important consideration in relation to what type of injury had been sustained in the accident.

[29]      A meniscectomy could be performed, involving a resection of the meniscal cartilage to remove the torn fragment.  This would relieve ongoing pain and would also alleviate mechanical locking of the knee joint.  It could be performed by minimally invasive keyhole surgery.  After two weeks rest, the patient could, over the next 6 to 8 weeks, begin to return to normal functioning.  Following that, it would be less problematic for the pursuer to carry out his normal activities.

[30]      In the short term, the surgery would result in no further problems, but in the longer term the pursuer may experience difficulties caused by degenerative changes in his left knee.  After the meniscectomy, the knee would be subjected to increased forces and altered biomechanics which might lead to earlier degenerative changes in the knee joint than would otherwise have occurred.  The fact that the pursuer was a very active person had a bearing on the likelihood of such degenerative changes developing.  Based on the published medical evidence, there was a high likelihood that the pursuer would develop premature degenerative changes.  Reference was made to the relevant medical literature.  The pursuer was likely to develop symptomatic knee arthritis within 15 to 20 years of surgery.  If he worked into his seventies he would find it increasingly difficult to manage the croft.  Difficulties could begin from his early sixties.

[31]      In cross‑examination, it was suggested that the A & E records and the GP records made no mention of symptoms indicative of a medial meniscal tear.  Mr Shortt inferred that the knee had not been examined for such an injury.  Also, those who had examined the pursuer were not orthopaedic specialists.  He accepted that if the pursuer had described symptoms of a medial meniscal tear these would have been noted.  The later entries in the GP and physiotherapy records were consistent with medial meniscal pathology.  But the pursuer had told Mr Shortt of experiencing locking in his knee from an early stage.

[32]      Under reference to the BBC documentary, it was put to Mr Shortt that the pursuer was shown doing the various tasks described above.  He accepted that the footage appeared to show the pursuer doing his tasks without restrictions and without limping or grimacing.

[33]      The physical nature of the pursuer’s activities would prolong his recovery.  Pseudo‑locking involved no mechanical locking as such but severe pain and muscle spasm which created a similar effect.

[34]      Mr Shortt would recommend a meniscectomy.  The pursuer would be back working at some point between four weeks and three months after the surgery.  Development of osteoarthritic symptoms was highly variable and difficult to predict.  He accepted that he has less experience than the defenders’ expert, Mr Keating.  It would not be good for the pursuer’s knee if the pursuer did not have the operation because he would continue to experience symptoms for some time to come.

[35]      In re‑examination he referred to the active lifestyle of the pursuer as relevant to the development of arthritic changes.  The content of the BBC documentary did not cause him to change his opinion.

 

Sasha Pocock
[36]      Sasha Pocock explained how the accident had occurred and that after it the pursuer could not walk.  She explained that he could not put any weight on his left knee.  She described the assistance she had given him around the house, including in relation to going to the toilet and other aspects of personal care.  She gave a description of the tasks which the pursuer had carried on at the croft prior to the accident and could no longer perform.  She also explained the assistance which Jodie had given.

[37]      She said that during the period after his accident the pursuer went through peaks and troughs.  He discovered that he could move in a certain way to relieve the symptoms.  He would go through periods when he was “not 100%” but was generally able to do some things.  However, if he tweaked or twisted the knee this would restrict his activities.

[38]      In 2012 things were very difficult, the pursuer was always angry and upset, and would shout at the children.  At the time of the BBC documentary, the pursuer was going through these peaks and troughs in respect of his knee injury.  She accepted that one might form the impression from the BBC documentary that there was not much wrong with the pursuer’s knee, but said that he was not in fact fit during the period when it was filmed. He could not do all of the tasks around the croft.  There were times during the period of filming of the documentary when the pursuer could not do anything.  In 2013, there were longer periods between episodes of “popping out” of the knee.

[39]      In cross‑examination she explained that on 9 February 2012 she did not see any unevenness in Baron Taylor Street or any signs warning of unevenness.  She explained that she commonly made GP appointments for the pursuer after flare‑ups occurred with his knee but he often did not attend.  She had no knowledge of any alleged second accident.  She could not recall a second injury and said that, if it had occurred, she would have known about it.  She said that the pursuer’s knee would pop in and out.  She had no clear recollection of GP appointments in relation to the knee in the latter part of 2013 but his knee was the same as it had been for a long time.  He was a very independent person who was very frustrated at the effects of the injury.

 

Ryan Pocock
[40]      Ryan Pocock gave evidence about the injury causing his father to be “pretty useless” after the accident.  Ryan had to assist with various tasks around the croft, including animal husbandry.  He explained how he and Jodie had stepped forward to deal with matters.  His father’s condition went through stages and when he was hurting he did not do as much as he would on other occasions.  He would complain of his bad knee.  He would rest his knee when it was really bad.  His frustration was “pretty bad”.  His father would set the family to work and he would be in more of a supervisory role than hands‑on.  His father remained unable to do as much as he could previously do and was operating at perhaps 60% to 70% of his previous level of work.  His father suffered a lot of stress as a result.

 

Jodie Pocock
[41]      Jodie Pocock gave evidence about the extent of his own involvement following upon the accident.  Asked about the BBC documentary, he said that he could understand that someone might think from it that the pursuer could do all the jobs at the croft.  But that was not correct â€‘ it was not how the situation was.  It was just the way the documentary makers had gone about the filming.  He listed a number of things which the pursuer could not do. If Jodie did not assist then half of the work on the croft would not be done.

 

Kevin McMahon
[42]      The pursuer led Kevin McMahon, Consulting Engineer, as an expert witness.  He explained his experience in transport and road safety matters.  He estimated a difference in height between the top of the higher paving slab and the surface of the adjacent lower paving slab, on which the pursuer had tripped, as being 28mm.  He did so from the photographs taken by the pursuer and his wife after the accident, which showed a ‘Swan Vestas’ matchbox sitting on the adjacent lower paving slab.

[43]      He was taken to the inspection records of Highland Council and to the history of defects noted at Baron Taylor Street.  The Council’s inspector, Yvonne Low, had identified a problem involving a series of sunken slabs in the drainage channel at Baron Taylor Street on 20 December 2011.  Reference was made to photographs of her findings.  There was a Works Instruction for repair work to be completed by 9 January 2012.  The defect details were noted as “slab loose/broken/defective/trip”.

[44]      This was a defect which, according to the Council’s ‘Road Network Hierarchy and Inspections Policy’, was to be remedied within 21 days.  On 23 January 2012, the footpath inspection record, again made by Yvonne Low, identified defects on Baron Taylor Street involving sunken slabs.  Again photographs were taken.  This was 14 days after the previously identified defect should have been repaired.  The photographs and records noted the same defect as that identified on 20 December 2011 and in terms of the policy this was a trip hazard which required to be fixed within 21 days.

[45]      In the policy document, inspection periods were stated for footways and cycle routes.  Baron Taylor Street fell into the category requiring monthly inspections.  Defects found during safety inspections were to be classified as Category 1 (immediate or imminent hazard), Category 2H (high level of hazard or risk), Category 2M (medium level of hazard or risk), Category 2L (low level of hazard or risk) or Category 3 (negligible impact).  A Category 2H defect had a response time of seven days and a Category 2M defect had a response time of 21 days.  The response times were “intended for temporary repairs to make the defect safe”, stated the policy.

[46]      He was taken to the extracts from the document ‘Well-maintained Highways – Code of Practice for Highway Maintenance (2005)’ (“the Code”) which had been lodged.  Among other things, it referred to how certain other roads authorities dealt with the identification and repair of defects.  The Code itself did not state response times within which defects must be remedied and the witness said that one would find reference in it to a range of response times by individual roads authorities.  In his report, he placed reliance on the intervention level of 20mm and the response time of seven days used by Perth and Kinross Council.

[47]      In the present case, there was a defect in a city centre street which was categorised as a medium level of hazard or risk so that the 21 day period for repair was appropriate.

[48]      The reason why a defect of this kind with a height difference of 20mm or more was a trip hazard was that the vertical face cut perpendicularly along a person’s line of travel at a level at which feet would hit it.  He said that a remedy within seven days was required for a hazard of 20mm or more in depth, that difference in level being what is used by most Scottish roads authorities to identify a trip defect.  He also said that a small number of roads authorities work on the basis of 25mm, but reiterated that most use 20mm as the threshold for intervention.  Of some 25 roads authorities, two use 25mm as the intervention level and others normally use 20mm.

[49]      Whether the defect should be repaired within seven days or 21 days was a matter within the margin of appreciation of the roads authority.

[50]      In cross‑examination it was put to him that there were considerable variations in practice among roads authorities, to which he assented, but he said that the general principles of the Code were carried through by them.

[51]      He accepted that a number of factors were relevant to the identification and remedying of defects, such as resources, the geographical extent of the area covered by the roads authority, the length of the roads and footways in that area, vehicular and pedestrian usage and density, underlying population density, budget, climate and topography of the area.

[52]      It was put to the witness that some roads authorities operate at an investigation level or threshold of 20mm and others at 15mm, to which he assented.  It was also put to him that more than two roads authorities in Scotland use 25mm as the threshold and indeed that six roads authorities use 25mm.  The witness’s position was that until 2015 he was aware of only a small number doing so.  The witness said that 25mm was the highest threshold he had seen and was unaware of whether Strathclyde Regional Council had operated at 40mm in the past.

[53]      He accepted that the guidance in the Code was not prescriptive and that not all Scottish roads authorities use the same threshold level for defects or deal with the same type of defect in the same way.  When asked who exercises the judgement as to what to repair, he said he imagined it would be the area manager.  He accepted that it appeared that the difference in height of the defect in the present case had “got worse”.  He also accepted that the difference in height may not have been as great as 28mm on 20 December 2011.

 

Michael O’Neill
[54]      Mr O’Neill is a Consultant Clinical Psychologist and he gave evidence about the psychological effects of the accident upon the pursuer.  In essence, the pursuer had symptoms of adjustment disorder, with mixed anxiety and depressive mood.

 

Stephen Bennett
[55]      Stephen Bennett was the director of the BBC documentary referred to earlier.  He confirmed that the period of filming was from 8 November 2012 to 16 June 2013.  When arranging periods of filming, the pursuer had on occasions said that particular times were not suitable.  The pursuer had talked about having damage to his knee.  Mr Bennett had also suffered a knee injury and said that” we moaned and groaned to each other”.  The pursuer was often complaining or annoyed about his knee.  Mr Bennett spoke of two specific occasions on which issues about the pursuer’s knee were mentioned to him by the pursuer.  In cross‑examination he explained that he would not switch on the camera and commence filming when the pursuer said he was in pain.

 

John Keating
[56]      Mr John Keating, Consultant Orthopaedic Surgeon, was an expert witness led by the defenders.  From his CV and his oral evidence it was evident that he is a highly experienced surgeon, with a particular specialism, built up over many years, in the knee.

[57]      Mr Keating referred to the results of the MRI scan.  The scan showed that the pursuer had at some point sustained two injuries to his left knee.  These were a medial ligament sprain and a medial meniscal tear.  In simple terms, he had at some point sprained a ligament and at some point torn a cartilage in his left knee.

[58]      Mr Keating explained that the ligament and the cartilage injuries suffered by the pursuer required two different causal mechanisms.  The ligament injury resulted from force being applied to the outer side of the left knee, thus causing the inner or medial ligament to stretch or sprain.  This could happen in the course of a tripping incident, such as that which the pursuer said had occurred.  The cartilage injury resulted from compression of the knee joint coupled with a twisting action.  The cartilage injury could also occur in the course of a tripping incident such as that described by the pursuer.

[59]      However, Mr Keating explained that it was only in a very small percentage of cases that the two injuries were found to have been sustained in the same incident or accident.  For this to happen, there required to be very significant energy involved in the incident.  The examples he gave of when both injuries might occur from one incident included road traffic accidents and falls from scaffolding.  While he could not rule out both injuries to the pursuer having been sustained by the pursuer in the tripping incident on 9 February 2012, he was of the view that on the balance of probabilities this was highly unlikely.  Accordingly, Mr Keating’s opinion was that the pursuer’s injuries resulted from two separate incidents.

[60]      Mr Keating understood from the medical records that the pursuer had not suffered an injury to his left knee prior to 9 February 2012.  There was no suggestion in the pursuer’s evidence of a previous knee injury having occurred.

[61]      As noted above, the pursuer attended at Raigmore Hospital’s A & E department shortly after the accident on 9 February 2012.  He gave an account of his symptoms.  The doctor (a trainee GP) was of the view, based on the notes he made of the symptoms and on his examination of the pursuer, that the injury was a sprained ligament.  Mr Keating’s evidence was that the symptoms recorded by the A & E doctor were not those of a medial meniscal tear.

[62]      On 16 February 2012, the pursuer attended at his GP surgery.  He gave an account of his symptoms.  His GP, Dr McIntyre, noted these and concluded that the injury was a sprained ligament.  Mr Keating’s evidence was again that the symptoms recorded, this time by the GP, were not those of a medial meniscal tear.  The pursuer attended his GP again on 13 March 2012 about his left knee and there was nothing noted in the record of that visit which was indicative of a medial meniscal tear.

[63]      The next occasion when the pursuer attended his GP in relation to his left knee was on 26 November 2013.  On that visit, the GP records noted that the pursuer had suffered an injury “3/12” ago, this being a reference to three months.  That injury was recorded as having involved swelling.

[64]      In February 2014, the pursuer was discharged from his course of physiotherapy.  The discharge notes record that the pursuer had suffered an injury to his left knee “6/12” ago.  This was consistent with an injury having occurred in August or September 2013, which itself was consistent with the entry in the GP records on 26 November 2013.

[65]      Mr Keating explained that the symptoms recorded by the GP in November 2013, and referred to in the discharge notes from the physiotherapist, were consistent with a medial meniscal tear.

[66]      Taking into account all of the evidence now available to him, including the MRI scan, the GP records and the physiotherapy records, Mr Keating’s view was that, on the balance of probabilities, the pursuer had suffered a medial collateral ligament sprain on 9 February 2012 and then at some later date had sustained the medial meniscal tear.  Mr Keating accepted that it was possible that both injuries had occurred on 9 February 2012, although this was highly unlikely.  He also accepted that it was possible that the medial meniscal tear had occurred on 9 February 2012 and that the sprained ligament had occurred on some other occasion.

[67]      Where a person has suffered a medial meniscal tear, the major symptoms which result (such as popping or locking of the knee) can, explained Mr Keating, be prevented by surgery.  A medial meniscal tear commonly results in a segment or flap of cartilage coming into contact with other parts of the knee joint.  The surgery, known as a meniscectomy, involves the removal of the flap of cartilage.  The operation is carried out by keyhole surgery.  Most patients make a very good recovery and Mr Keating was of the view that the pursuer would do so if he undertook a meniscectomy.  One consequence of removing part of the meniscus in a meniscectomy is that the articular surfaces of the primary bones which interact at the knee joint (the femur and the tibia) can be affected by arthritic changes at an earlier point in time than would otherwise be the case.  Mr Keating’s view was that this was not a significant risk in relation to the pursuer.

[68]      Mr Keating was not aware of the evidence given by the pursuer in court.  As is noted above, that evidence included that the pursuer had symptoms of locking of the knee going back to 2012.

 

Yvonne Low
[69]      Yvonne Low is a roads inspector with Highland Council, based in Inverness. She carried out the inspections of Baron Taylor Street referred to in the documents and in particular the inspections on 20 December 2011 and 23 January 2012.  In her inspection of a footway, she would look out for raised slabs, rocking slabs or defective kerbs and a range of other things, such as ponding.  She carried a laptop and would access the computer system to log the defect, tick the box showing its nature and category, and specify the nature of the repair.  A trip hazard with a hard edge level difference in height of 20mm or more was a safety defect.  This height difference was not stated in terms in the Council’s policy but was the basis upon which she proceeded.  She carried a piece of plastic which she used to measure the difference in level.  If she found a height difference of greater than 20mm she would stipulate a seven day repair period.  For a height difference of less than 20mm, it would be a 21 day repair period.  The latter type of defect was something which it was considered would be better attended to in 21 days rather than left to the next monthly inspection.

[70]      Accordingly, if she had stated a 21 day period for repair the height difference must have been less than 20mm.  After an inspection, she would return to the office and print out the Works Instruction to complete the work within the allocated period.  Once the work was done, she would record on the computer system the date when it had been completed.

[71]      She inspected Baron Taylor Street every month as part of the city centre footway inspection.  No trip hazard had been identified in her inspection dated 22 November 2011.  In her inspection of 20 December 2011, she had noted a difference in level and had stated a 21 day repair period so the defect must have involved a height difference of less than 20mm.  In relation to the inspection carried out on 23 January 2012, her findings were virtually identical to those from 20 December 2011.  The difference in height had not gone above 20mm.  A further Works Instruction was issued, again for the defect to be rectified within 21 days.  She reiterated that the height difference was less than 20mm.

[72]      There was a general problem in Baron Taylor Street in that the drainage channel was failing and remedial works had been carried out in February 2012 (after the pursuer’s accident).  She explained what was discovered to be the nature of problem:  the paving slabs which made up the drainage channel area had been embedded in sand and not in concrete and the sand had partly washed out.

[73]      She then described warning signs that been placed at the junctions at both ends of Baron Taylor Street.  These were signs about 3 foot square with white lettering on a red background stating that there was an uneven road surface.

[74]      In cross‑examination she accepted that the Council’s policy was to respond within 21 days to the sort of hazard that she had identified.  She explained that the purpose of her inspections of the footway was that she was looking for a trip hazard, that is a risk to pedestrians of tripping on some defect and falling to their injury.  When asked whether her intention was that repairs should be carried out within the specified period she replied “Ideally” and then later said “yes”.  She agreed that otherwise there was little point in setting a timetable.

[75]      She was taken to the history of issues having been identified in Baron Taylor Street, going back to June 2011.  She accepted that no fencing had been put up around the defect.  The defect identified on 20 December 2011 was a trip hazard.  She accepted that it was possible that she did not take out her piece of plastic to measure the difference in level.  She also accepted the possibility of the defect getting worse in time through deterioration.  The degree of danger involved in a trip hazard could increase.

 

The Pursuer’s Submissions
Breach of Duty
[76]      The defenders are liable in negligence at common law for any failure to remedy a hazard that exists on that roadway.  In exercise of that duty, the defenders were under a duty to take reasonable care to repair the trip hazard, known by the defenders to exist as of 20 December 2011, at Baron Taylor Street, which was the cause of the pursuer’s accident on 9 February 2012.  Reasonable care required the defect to be repaired within seven days, which failing 21 days, of 20 December 2011, and in any event prior to the date of accident.  The defenders had failed so to do, thereby causing the pursuer’s accident and accordingly are under an obligation to make reparation for injury caused by that failure.

[77]      In Scots law a roads authority is liable in negligence at common law for any failure to deal with a hazard that exists on the roads under its control.  A ‘hazard’ for this purpose is something that would present a significant risk of an accident to a person proceeding along the road in question with due skill and care.  Thus, the pursuer must establish that a roads authority of ordinary competence using reasonable care would have identified the hazard (or, indeed did know of the hazard) and would have taken steps to correct it.  Reference was made to MacDonald v Aberdeenshire Council 2014 SC 114 and to Robinson v Scottish Borders Council 2016 SLT 435.

[78]      Reliance was placed upon the evidence of Yvonne Low, her findings on the various inspections and the issuing of the Works Instructions.  The evidence showed that there had existed an abrupt vertical difference in the paving slabs which caused the pursuer to fall on 9 February 2012, being the irregularity shown in the photographs taken by him and his wife, Sasha, within about two weeks of the accident, including those showing the ‘Swan Vestas’ matchbox.  The irregularity, at the time of the accident, constituted an abrupt vertical change of around 28mm in the level of the paving on Baron Taylor Street, as spoken to by Mr McMahon. There was no evidence before the court to proceed on the basis that the irregularity at the time of the accident was materially different from that shown in the photographs.

[79]      Yvonne Low had stated that a differential of greater than 20mm warrants remedial action within seven days.  This was consistent with the policy adopted by the defenders that a Category 2H defect (“high level of hazard or risk”) warranted a seven day response.

[80]      In any event, irrespective of the precise dimensions of the defect on 20 December 2011 and 23 January 2012, Yvonne Low identified the irregularity as a trip hazard that had caused the pursuer to trip.  She noted it as warranting remedial action within 21 days, because it fell within Category 2M (“medium level of hazard or risk”).  She had also accepted in evidence, particularly, in light of the history of Baron Taylor Street, that a defect may quickly deteriorate.

[81]      Thus, irrespective of the precise dimensions of the irregularity as identified on 20 December 2011 and 23 January 2012, it was nonetheless identified by the defenders as a hazard that presented a significant risk of an accident, and constituted a reasonably foreseeable cause of injury known to the defenders as of 20 December 2011.

[82]      The defenders reliance on Yvonne Low’s evidence should be rejected. In cross‑examination she accepted that she could not say that she actually measured the height differential and thus could not say it was 20mm or less.

[83]      The defenders failed in their duty to take reasonable care to rectify such a known hazard by failing to act prior to the date of the pursuer’s accident.  The pursuer’s primary case was that the defenders should have acted within seven days of having identified the hazard, as it presented an abrupt vertical difference of greater than 20mm.  Esto the court rejected the contention that the duty to take reasonable care required repair of a defect known to exist on 20 December 2011, and again identified on 23 January 2012, within seven days of either date, there was nevertheless a failure in that duty to have acted on the defect, known to exist on 20 December 2011, prior to 9 February 2012, in light of the evidence before the court as to what would have been done by a reasonably careful roads authority. Separately, there was a failure by the defenders to take reasonable care to apply their own policy and instructions.

 

Causation and Loss
[84]      The accident of 9 February 2012 caused the pursuer to sustain both a medial collateral ligament sprain and a medial meniscal tear.  Esto the court did not accept that the pursuer sustained both injuries on that date, the court should find that the accident caused the pursuer to sustain a medial meniscal tear.

[85]      Mr Keating’s conclusion in his report was that on the balance of probabilities the pursuer had sustained a medial meniscal tear in the accident.  The only considerations that appeared to cause him later to revise his views were (i) a contention that a second accident may have occurred around August 2013 and, possibly, (ii) evidence in the MRI scan of a healed medial collateral sprain and that in his experience it was rare for both a medial collateral ligament sprain and medial meniscal tear to occur at the same time.  Mr Shortt did not find the chances of these two injuries occurring in the same event as so unusual, making reference to events where the foot is “planted” and rotational and compression forces combine with a force across the knee.  Mr Shortt regarded the description of the pursuer’s accident as consistent with both injuries being suffered at the same time.  Mr Keating accepted that this could happen.

[86]      The court should reject what is alleged to be evidence of a second accident such as might have caused the meniscal tear identified in the MRI scan.  Mr Shortt and Mr Keating agreed that symptoms of clicking or locking of the joint are a highly indicative sign of a meniscal tear, as the torn meniscal cartilage can cause a mechanical block to the action of the joint.  The pursuer gave an account of this being present from not long after the accident and certainly present in 2012, as opposed to having originated in the latter half of 2013.

[87]      It was accepted that the medical evidence was to the effect that the pursuer is a suitable candidate for a meniscectomy.  According to Mr Shortt a period of 6‑8 weeks should see the pursuer able to begin to return to normal function.  Mr Keating spoke to an average recovery period being two months.  There are good prospects that such a procedure would remove the pursuer’s symptoms of pain and decreased function, allowing him to undertake most, if not all, of his pre‑accident activities and to full capacity.

[88]      It was likely that the pursuer would at some point develop osteo‑arthritic changes in the knee as a result of the surgery: the alteration in loading caused by the surgery and associated biological changes are identified by Mr Shortt and Mr Keating, and relevant studies, as the cause of such changes.  There was a material chance the surgery would cause symptomatic degenerative changes resulting in pain and restrictions in the pursuer’s knee movement within the period when he would wish to continue working on the croft. This should be recognised as part of any award of damages.

[89]      In addition, the pursuer had suffered psychological damage, as spoken to in the evidence of Mr O’Neill and in his report.  Reference was also made to the description from Sasha Pocock of the pursuer becoming angry, frustrated and short tempered with the family.  A Schedule of Valuation was produced.

[90]      Overall, the pursuer should be awarded damages in the sum of £72,562.14.  This sum was made up of solatium in the sum of £22,200 (50% to the past and 50% to the future), which included £4,450 in respect of psychological injury.  In respect of future services, £20,533.60 was claimed. The remainder of the sum claimed was in respect of past services and interest.  The figure for solatium was based largely upon The Judicial College Guidelines, at Chapter 4(A) and Chapter 7(M).  There were few authorities of assistance, but reference was made to Young v Scottish Coal (Deep Mining) Co Ltd 2002 SLT 1215, Campbell v Elliot Group Ltd [2009] CSOH 63, Steel v McGill’s Bus Service Ltd [2015] CSOH 5 and Brookes v First Aberdeen Ltd [2010] CSOH 16

 

The Defenders’ Submissions
Liability
[91]      The defenders relied upon the evidence of Yvonne Low, that the height difference on 20 December 2011 was less than 20mm and that at the second inspection on 23 January 2012 it had not changed.  While the photographic evidence suggested the defect was in excess of 25mm in depth some two weeks after the accident, that was not the position at the time of the inspections.  Reference was made to MacDonald v Aberdeenshire Council.

[92]      The question for the court was whether the defenders had failed to do something they ought to have done, by reference to the practice of a reasonable roads authority (Gibson v Strathclyde Regional Council 1993 SLT 1243).  It was insufficient to establish liability simply that a roads authority had failed to meet the terms of its own policy (Syme v Scottish Borders Council 2003 SLT 601).

[93]      The foreseeability of risk of injury in itself was not sufficient, otherwise any level of defect, depression or change in height of a pavement surface would found liability (Nugent v Glasgow City Council [2009] CSOH 88).  As the question was one of reasonable care by a roads authority, there must be some threshold, beyond which the depth of a defect discovered on inspection requires repair within a certain period.  Reference was also made to Mills v Barnsley Metropolitan Borough Council [1992] PIQR 291.

[94]      The defenders were not in breach of any duty of care in respect of the pursuer.  The pursuer seeks to establish the standard by which the defenders are to be judged by reference to the Code.  Mr McMahon accepted that the Code is a benchmark for roads authorities, but they might justifiably depart from the Code for a variety of reasons, including population density, amount of use of the road or footpath, climate, topography and budgetary considerations.  The practice of Yvonne Low in notifying a repair period of 21 days for a defect of less than 20mm in depth exceeds the requirements of a reasonable roads authority, whether measured by the guidance contained in the Code, or the practice of other Scottish roads authorities mentioned in evidence.

[95]      Ms Low gave very clear evidence of her line manager arranging for the placing of ‘uneven surface’ warning signs on Baron Taylor Street prior to the accident.  Her description of the signs was lucid. She said with confidence that she remembered seeing the signs in position at either end of Baron Taylor Street.  There was no real challenge to her evidence on those points.  There was no direct proof that the warning signs were in place on 9 February 2012, but the court should draw the inference that they had been in position at Baron Taylor Street for some time and that they were still there at the time of the pursuer’s accident.

 

Causation and Loss
[96]      Reliance was placed on the records of Raigmore Hospital A & E department for 9 February 2012.  These pointed to a medial collateral ligament strain and not a meniscal tear.  The pursuer’s account that he could not weight-bear at all does not accord with the records.  The GP records supported the same conclusion.

[97]      There was a second injury.  The record of the pursuer’s attendance at his GP on 26 November 2013 clearly noted that the pursuer had suffered an injury to his left knee three months previously.  It was objectively unlikely that the record was incorrect, since it was followed by the note that the pursuer had two months of medial pain.  In any event, the pursuer accepted in cross‑examination that he had told this to the GP and the information had not come from anywhere else.  The pursuer’s subsequent denial of a second injury was not credible, given his earlier answer.  The impression of the GP on 26 November 2013 was that there had been a meniscal injury.  The pursuer’s GP was not therefore in ignorance of what symptoms were associated with a meniscal tear.  The GP’s record of the pursuer’s account of a second injury was corroborated by the physiotherapy record.

[98]      The clinical picture supported the conclusion that the medial collateral ligament injury was sustained on 9 February 2012.  There were no clinical indications that a meniscal tear injury occurred at that time.  The BBC documentary supported those conclusions.

[99]      The BBC documentary was consistent in all respects with the defenders’ case.  In it, the pursuer was at no point shown grimacing or having any difficulty with any of his tasks.  The pursuer’s explanation that he was nevertheless struggling with crofting tasks required careful scrutiny.

[100]    In relation to the alleged psychiatric injury, Mr O’Neill’s report was based on the subjective account of the pursuer.  He did not have any other information available to him in reaching an opinion.  There were no entries in the medical records tending to suggest that the pursuer has at any time suffered from a psychological or psychiatric condition.  Any psychological difficulties the pursuer had experienced since August 2013 related to the consequences of the meniscal tear caused by a second accident at around that time.

[101]    Mr Shortt and Mr Keating did not suggest that the meniscectomy itself might make things worse.  On the contrary, their evidence was of an excellent outcome following surgery.  The pursuer should have followed the recommendation of Mr Baird.  Reference was made to British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited [1912] AC 673, McAuley v London Transport Executive [1957] 2 Ll R 500 (CA),  and Marcroft v Scruttons [1954] 1 Ll Rep 395 (CA).

[102]    If the defenders’ case that the pursuer sustained only a strain to the medial collateral ligament on 9 February 2012 was not accepted, then there was nonetheless a failure by the pursuer to mitigate his loss. The pursuer could have had normal function in his knee restored in a meniscectomy operation following his consultation with Mr Baird on 2 September 2015.  Mr Shortt’s prognosis as to future degenerative changes following that operation was too pessimistic for the reasons explained by Mr Keating.  On the balance of probabilities it was unlikely the pursuer would develop symptoms of osteoarthritic change at a time when it would interfere with his running of the croft.

[103]    In relation to quantum, reference was made to:  the Judicial College Guidelines;  Watson v Hillingdon (K&K I6-028) (28 Oct 2004);  Gildert v John Wilman Ltd (K&K I6-031) (4 May 2000);  McFarlane v Drew (K&K I6-030) (24 April 2003);  Honisz v Lothian Health Board 2008 SC 235;  Rimmer v Baxter Construction Ltd (K&K I1-045) (9 July 2008);  Stanhope v Molyneux (K&K I6-044) (11 Feb 2003);  McCreadie v Clairmont Garments (Scotland) Ltd 1993 SLT 823;  and Devaney v Arthur Bell & Sons Ltd 1991 GWD 14-870.  An award of £4,000 for solatium would be appropriate, having regard to the Judicial College Guidelines and the cases of McCreadie and Deveney.

[104]    The true period in which the pursuer incurred necessary personal services was between 9 February 2012 and around November 2012.  The evidence of the pursuer and his family members as to his abilities on the croft during this period was unreliable.  A lump sum award of £1,000 would be appropriate in all the circumstances.

[105]    The pursuer accepted in cross‑examination that he had not seen the defect that caused him to trip.  He could be found to have been contributorily negligent in that respect.  Reference was made to Ferguson v Strathclyde RC 1981 SLT (Notes) 103 and Brown v City of Edinburgh Council 1999 SLT (Sh Ct) 43.

 

Decisions and Reasons
The Evidence
[106]    The pursuer, his wife, their son Ryan and their relative Jodie Pocock all struck me as honest witnesses and I have no hesitation in accepting their evidence as credible and reliable.  It may be the case that the pursuer’s evidence to some degree over‑emphasised the effects of the accident and that the BBC documentary supported the view that his injuries were not quite as severe as he had stated, but I regard any difference as being largely immaterial.  In relation to the documentary, I accept the evidence from the pursuer and Mr Bennett to the effect that there were points in time when filming could not take place because of the pursuer’s knee injury.  In broad terms, the pursuer’s evidence as to the nature and effect of his injury was supported by the evidence of the other witnesses.

[107]    I deal with the evidence of Kevin McMahon and Yvonne Low below.

[108]    The medical evidence from Mr Shortt and Mr Keating was impressive, clear and helpful.  There were two main issues on which they differed:  (i) the likelihood of both injuries being suffered in the same accident; and (ii) the prognosis for degenerative arthritic changes in the knee joint following upon a meniscectomy.  I consider these points below.

 

Liability
[109]    In MacDonald v Aberdeenshire Council, Lord Drummond Young explained (at paras 63 â€‘ 65) the nature and content of the common law duty of care of a roads authority in Scots law.  In particular, he noted (at para 64) that:

“…the authority must be at fault in failing to deal with the hazard.  This means that the pursuer must establish that a roads authority of ordinary competence using reasonable care would have identified the hazard and would have taken steps to correct it…”

 

In the present case, the key issue in relation to liability is whether the pursuer has established that a roads authority of ordinary competence using reasonable care would have taken steps to correct the identified hazard within the period prior to the pursuer’s accident.

[110]    Understandably, as he was not present, Mr McMahon could not speak to the height difference at the dates of the two inspections relied upon.  His estimate of 28mm was based on photographs taken two weeks or so after the accident.  He expressly accepted that the height difference may not have been as great as 28mm on 20 December 2011.  

[111]    Yvonne Low was clear that on both inspections the height difference was less than 20mm.  It is true that she accepted in cross-examination that it was possible that she had not taken out the piece of plastic she carried with her, to measure the height difference.  But this was a possibility and was neither suggested to her nor stated by her to be a probability.  How she had arrived at the clear view she expressed, several times in her evidence, that the height difference was less than 20mm was not explored any further.  Moreover, it was not put to her that the height difference was greater than 20mm at the date of the inspections or that the figure she had given in evidence of it being less than 20mm was for any other reason incorrect.

[112]    Yvonne Low came across as a careful individual, who took her job very seriously.  She was fully aware of the significance of tripping hazards and of her own role in identifying hazards in particular categories.  I was left in no real doubt that if she had come across a hazard with a height difference of greater than 20mm she would have classified it as falling within Category 2H and hence requiring repair within seven days.

[113]    Clearly, it is the height difference at the dates of the inspections which is of primary importance.  The only evidence from those dates was that it was less than 20mm, at both inspections.  The result is that the evidence of the pursuer’s expert Mr McMahon, who addressed the issues largely if not entirely on the basis that the height difference was 28mm, was of little relevance. Moreover, both he and Yvonne Low accepted that the height difference could have changed between the date of inspection and the date of the accident.  

[114]    Of course, the defect was nonetheless, as Yvonne Low accepted, a trip hazard which fell within Category 2M and the Council’s policy was to repair it within 21 days.  However, a failure by the Council to follow its own policy or plan is not of itself sufficient to establish a failure to exercise reasonable care (see Syme v Scottish Borders Council, at paras 18 and 20).  The policy cannot dictate the content of the duty of reasonable care.  The purpose of the hierarchy within the policy, according to paragraph 1.3 of the document, is “to provide the basis for a maintenance strategy and enable the prioritisation of works activities…”.  It is “…a tool to determine where resources should be prioritised”.

[115]    The evidence did not establish precisely why the defect was not repaired within 21 days, but Yvonne Low explained the nature of the problems with the paving at Baron Taylor Street.  The simple ascription of a repair period of 21 days in accordance with the Council’s policy is only one factor to be taken into account.  Regard must be had to the whole relevant circumstances and in particular to the height difference at the dates of the two inspections.

[116]    There was also an absence of evidence about the practices of other roads authorities in Scotland capable of supporting the pursuer’s position.  Mr McMahon’s evidence was that for the vast majority of roads authorities the intervention level was 20mm, that is, greater than the height difference spoken to by Yvonne Low as being found by her.

[117]    The extracts produced from the Code were of very limited assistance.  On the information produced, the Code itself does not stipulate a height difference in a hazard which is the threshold at which repair is required, or a period of time within which it should be remedied.  In relation to these matters, the Code refers to the practice of two other roads authorities.  The first example is Westminster Council, which states an “investigatory level” of 15mm depth for a “trip/pothole”.  However, no response or remedial time period is stated, nor was there any explanation in the evidence of the consequences of a height difference reaching the “investigatory level”.  The second example is Perth & Kinross Council.  Its policy includes within the category “Defects presenting a moderate level of hazard or risk”, which have a repair time period of seven days, “trip or other abrupt level differences in footway or kerb exceeding 20mm”.  On the information given in evidence, it includes no reference to trip hazards with a height difference of less than 20mm.  What can be taken from the approach of Perth & Kinross Council is that a height difference of greater than 20mm falls, on their analysis, into the category of a moderate level of hazard or risk.

[118]    The pursuer led no evidence that a roads authority of ordinary competence exercising reasonable care required to repair, within 21 days, a hazard created by a height difference of less than 20mm.  As noted, Mr McMahon proceeded upon the basis that the defenders required to repair defects of greater than 20mm within specific periods.  He did not deal at any stage with the repair of defects of less than 20mm.  Moreover his statement that after the inspection of 23 January 2012 the defender should have repaired the defect within seven days appears to proceed on the same basis as his earlier conclusions: that the height difference was 28mm.  Further, the case pled for the pursuer is of a duty to repair a defect with a height difference of greater than 20mm within seven days or at most within 21 days.  No case is made about a requirement to repair a defect of less than 20mm or to do so within seven days following upon a failure to repair within the stated 21 days.

I also take into account that there were other issues identified by Yvonne Low in Baron Taylor Street from at least June 2011.  It was known to be a location prone to problems.  However, it was regularly inspected to identify specific problems and the trip hazard in this case did not appear in the inspection records prior to December 2011.

[119]    I therefore conclude that the pursuer has failed to establish the key factual basis of his pleaded case: that the defect, at the date of its identification, involved a height difference of greater than 20mm.  Further, the pursuer has not established that, in the exercise of reasonable care, the defenders required to repair the identified defect within 21 days or within the period between the first inspection and the date of the pursuer’s accident.  To use the test articulated by Lord Drummond Young in Macdonald, the pursuer has not established that a roads authority of ordinary competence using reasonable care would have taken the steps identified by the pursuer to correct the defect.

[120]    The defenders contended that the warning signs said to have been placed at either end of Baron Taylor Street had sufficiently warned the pursuer of the surface being uneven and hence that there was no breach of duty.  I reject that submission.  There was no evidence confirming that the signs were actually in place at the material time or as to precisely where they were located.  There was also insufficient evidence as to the prominence of the signs and more particularly as to whether these signs would properly be understood by pedestrians exercising reasonable care as warning about trip hazards, given that they refer to the road surface and make no specific mention of the kind of hazard which pedestrians might encounter.

[121]    There was also a suggestion in the defenders’ submissions of contributory negligence on the part of the pursuer, based on a failure to notice the tripping hazard.  In my opinion, it was simply not established in the evidence that an individual exercising reasonable care for his own safety would have noticed and avoided the hazard.  As I have held above, the pursuer has not established that it was any greater than 20mm in depth.

 

 

Causation and Loss
[122]    I can deal with the issues of causation and loss fairly briefly.  In view of the pursuer’s evidence as to the existence of symptoms of locking of the knee during 2012, and the other supporting evidence, and my view of him as a generally credible and reliable witness, I conclude that he must have suffered a medial meniscal tear in the accident on 9 February 2012.

[123]    In relation to the contention that he had suffered an accident some three months prior to November 2013, there is no doubt that the GP and physiotherapy records contain material broadly supportive of that position.  However, the court did not hear evidence from the authors of these records.  The court had the pursuer’s evidence as how these erroneous entries could have occurred and his clear rejection of the suggestion that he suffered a second injury.  I take the view that the reference in the GP records to an accident three months prior to November 2013, and the reference in the physiotherapy discharge letter of an accident six months prior to February 2014, were either incorrect recordings of what the pursuer had stated to these medical professionals or were things said for the reasons explained by the pursuer.  It is possible to read the pursuer’s evidence as being to the effect that he had explained to the GP and the physiotherapist that some tweaking or twisting had occurred at that point in time (August or September 2013) and that may have been misunderstood to be a separate incident rather than merely a movement which exacerbated the pain and other symptoms of an already existing medial meniscal tear.  Accordingly, I accept that the pursuer did not suffer a second discrete injury of the nature of a medial meniscal tear.

[124]    I accept the very convincing evidence of Mr Keating that, in an accident of the kind which occurred on 9 February 2012, it is highly unlikely that the medial collateral ligament strain and the medial meniscal tear would have been suffered.  The MRI scan in June 2015 confirmed the presence of both injuries.  However, having accepted the pursuer’s evidence as truthful, all that can really be said is that as well as suffering the medial meniscal tear in February 2012, at some stage the pursuer also suffered a medial collateral ligament strain.  He did speak of twisting his knee on several occasions.

[125]    In relation to when it would have been reasonable for the pursuer to undergo a meniscectomy, the pursuer’s position was that it was for the defenders to prove, in alleging a failure to mitigate, the point in time when this should have occurred.  There was no clear evidence on the point which would allow the defenders to discharge that onus.  The pursuer’s position was that, as at the date of the proof, it was now reasonable for it to be undertaken.  The defenders contended that the pursuer should have undergone a meniscectomy as soon as possible after 2 September 2015, which was the date on which Mr Baird advised that it should be done.  This was supported by the advice tendered by Mr Shortt in 2014 and the advice from the GP referred to in evidence.

[126]    In my opinion, the defenders have proved that the pursuer failed to mitigate his loss by not undergoing a meniscectomy.  If, as the pursuer concedes, it was at the date of the proof reasonable for the pursuer to take that course, I can discern no good reason why it was not reasonable for him to do so within an appropriate period after Mr Baird tendered his advice.  However, the defenders led no evidence as to the waiting time for such an operation. Had it been necessary to decide the point, I would therefore have required to take a broad view. Building in a period of waiting time for such an operation and recovery, I would have been inclined to conclude that the pursuer would have been in a position at the latest one year after 2 September 2015 to re‑commence all of his normal activities.  I would therefore have limited the past services claim to 2 September 2016.

[127]    On the question of the likelihood of future degenerative changes in the event that the pursuer undergoes a meniscectomy, I prefer the evidence of Mr Keating and I am not persuaded that the pursuer has established the likelihood of these occurring.

[128]    I accept the evidence of Mr O’Neill, which was not contradicted, that the pursuer did suffer the psychological ill-effects following the accident which were noted in Mr O’Neill’s report.

[129]    In these circumstances, had I found the defenders liable, I would have awarded £15,000 in respect of past solatium, taking the view that the pursuer suffered a meniscal injury of moderate severity, but with no future problems after a meniscectomy, and with psychological ill-effects of the kind and for the duration spoken to by Mr O’Neill.  I would have accepted as entirely reasonable the pursuer’s calculations as to past services.  However, as noted above, I would have restricted the award in that respect to the period from the accident up to 2 September 2016.  I would have made no award for future solatium or future services.

 

Conclusion
[130]    For the reasons I have given, I shall grant decree of absolvitor in favour of the defenders.