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Smith v Strang Ltd [2012] CSOH 173 - 9th November 2012


An action for damages for personal injury sustained by Smith when subcontracted by Strang Ltd to carry out fencing works. Although primary liability was admitted by Strang Ltd, the parties disputed that circumstances in which the accident occurred, including the issue of contributory negligence and quantification of loss. Smith suffered serious injury to his right hand when he was manually attempting to realign a fence post, caused by the hammer weight of a post driver machine. Smith alleged he would not have put his hand on the post, leading to the injury, if a post cap, used to realign the post, was attached to the post driver machine. Strang Ltd denied that a post cap was not attached when the machine was delivered to Smith and challenged his credibility.

Held; i) As regards primary liability, Strang Ltd were found to be in breach of regulations 4, 11 and 17 of the Provision and Use of Work Equipment Regulations 1998 and in breach of their common law duty of care to Smith. There was a clear causal link between those breaches of duty and the pursuer's loss; ii) In this case, a reasonably substantial finding of contributory negligence was appropriate. Smith's actings were extremely careless. Further, the court found that the post cap became detached from the post driver after it was delivered to Smith. As such, his share in the responsibility for the injuries was assessed at 50 per cent; iii) The issue as to Smith's credibility had a bearing on the quantification of his loss. However it was a serious accident and the injury was to Smith's dominant hand.

In the circumstances a fair assessment of the claim for solatium was £8,000. As regarded past loss of earnings, Smith failed to establish that his business activities were curtailed as a result of the accident for anything more than eight weeks. Further, there was no evidence to support a contention that Smith's business would have been more successful but for the accident. As such his loss of earnings as a result of the accident were assessed at £2,800, having regard to the average level of net pre tax profits and taking an amount equivalent to two months pre tax profit less a deduction for tax. There was no acceptable evidence upon which to base an award for future loss of earnings or for a loss of employability award. The award sought by Smith in respect of services provided by his parents was assessed at £300 each. Although it was appropriate for the court to take a broad view in assessing an award for services, per Mitchell v Inverclyde District Council 1998 SLT 1157, Smith's girlfriend was not treated as a relative in this context because they were not living together as a couple until quite some time after the accident, per s. 13(1), Administration of Justice Act and Lawrie v Lanarkshire Health Board 1994 SLT 633.

Damages awarded: on a full liability basis of £8,000 for solatium, £2,800 for past wage loss and £600 for services amounted to £11,400. Applying interest at half the judicial rate from the date of the accident to the date of decree increased that sum to £13,528. The total fell to be reduced by 50% for the pursuer's contributory negligence. As such, Strang Ltd were ordered to pay £6,764, inclusive of interest to date, to Smith.