Smith v Muir Construction Limited [2014] CSOH 171, an ex-tempore decision delivered at close of proof on 31/10/14, was a case in which Andrew acted as principal counsel for the pursuer who had sustained an accident at work falling from a ladder causing serious head and wrist injuries.
Due to pre and post-traumatic amnesia caused by the head injury the pursuer had no memory of what he was doing before the accident or how it had happened. It was essential to prove the case by persuading the court to draw inferences from the evidence available. An important element in this regard was the medical evidence from a consultant neurologist and a Professor in Orthopaedic Trauma about the inferences which could properly be drawn from the degree of trauma occasioned from the head and wrist injuries.
Liability was contested and contributory negligence was strongly argued by the defender. The pursuer was successful with no finding of contributory fault and an excellent award was obtained covering solatium, services, loss of income and loss of employability.
Andrew said “Often pursuers are anxious about litigating cases where they cannot remember what happened and there are no direct eye-witnesses to the event and this case provides some helpful guidance to the approach taken by the court to the surrounding evidence if it can be properly built up to provide an inferential case. It also contains some helpful guidance about contributory negligence and quantum.”
Counsel was instructed by Michael McLean of Thompsons, Edinburgh.