Iain Pocock Against The Highland Council
| Jurisdiction | Scotland |
| Judge | Lord Clark |
| Neutral Citation | [2017] CSOH 40 |
| Date | 10 March 2017 |
| Docket Number | PD1373/14 |
| Court | Court of Session |
| Published date | 10 March 2017 |
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...
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