Outer House personal injury case arising from worker’s leg amputation fails on causation

By Mitchell Skilling

Joseph McIlwraith, who was diabetic and thus susceptible to requiring an amputation for various causes, sought damages from Bluevale Structures Ltd on the basis that his injury has caused by his employer’s breach of common law duty and health and safety regulations. Quantum was agreed at £85,000 in the event of the pursuer’s success.

The case was heard by Lord Ericht in the Outer House of the Court of Session. Allardice, advocate, appeared for the pursuer and Mackenzie KC and Rolfe, advocate, for the defender.

Most likely scenario

In May and June of 2018, the pursuer was working at warehouse premises in North Cumbernauld to safely remove the roof of a loading bay area that had collapsed following the “Beast from the East” weather pattern the previous winter. The defender was engaged as a demolition subcontractor for the job, with the main contractor being another firm, McLaughlin and Harvey.

Due to the collapsed roof, rainwater pooled in the area where the pursuer was cutting metal roof pieces into smaller sizes for disposal. The pursuer was wearing steel toe capped rigger type boots which were not waterproof, a fact he averred was known by the defender. As a result of the standing water, the pursuer’s boots became soaked through. Further, the boots did not dry when not in use as the dry room provided for storage was not heated, leaving the boots consistently wet overnight. On 12 May, the pursuer purchased new, waterproof boots that he used for the remainder of the job.

On 1 June 2018, the pursuer was taken from the job site to hospital as his right toe became numb and discoloured. The toe developed a diabetic infection which spread further, necessitating the below knee amputation of his right leg. It was submitted for the pursuer that this was caused by the work done while wearing soaked boots and the defender ought to have known of the risk that the pursuer would have to work in standing water with non-waterproof footwear, and taken suitable measures to either remove the water or provide proper overnight drying facilities.

Counsel for the defender submitted that there was no evidence that the pursuer had suffered ulceration because of his wet feet, and the most likely scenario was that the condition arose because he was diabetic. In doing so a challenge was made to the factual basis of the pursuer’s expert witness, consultant surgeon Keith Hussey, which concluded that he had developed Immersion Foot Syndrome that caused the tissue damage resulting in ulceration.

Balance of probabilities

In his decision, Lord Ericht began by saying of the case overall: “It is clear from the medical evidence that even diabetics who do not get their feet wet can end up in the same position as the pursuer in respect of amputation of a limb. It is in the nature of the disease of diabetes.”

He continued: “In order to succeed in this case, the pursuer requires to prove on the balance of probabilities that, rather than the cause being one of the other incidents of diabetes which could lead to amputation, the cause was infection caused by toe ulceration caused by Immersion Foot Syndrome caused by getting his feet wet at the Site on 9, 10 and 11 May. In my opinion the pursuer has failed to do so.”

Explaining the reasoning for his finding, Lord Ericht said: “At the end of the working day on each of 9, 10 and 11 May, the pursuer changed into dry shoes for the journey home and his feet remained dry until his return to work the next day. That is not eloquent of the consistent soaking and lack of drying off referred to by Mr Hussey as being required for the development of Immersion Foot Syndrome. Further, there was no evidence of any visible ulceration after 11 May.”

He concluded: “While I accept the pursuer’s evidence that his feet were sore and he suffered from pins and needles, that does not assist in proving causation as he had been experiencing that since 2012 as a symptom of his diabetes. There was no evidence that his toe had been abnormal from the end of the immersion on 11 May onwards. In all the circumstances I find that the injury suffered by the pursuer was not caused by getting his feet wet by standing in water in the course of his employment.”

Decree of absolvitor was therefore pronounced in favour of the defender.

Campaigners rally outside Court of Session as Scottish government misses access to justice deadline

The rally featured speeches from the Environmental Rights Centre for Scotland (ERCS) and community campaigners who have faced unaffordable legal expenses when taking environmental cases to court. Participants symbolically ‘blockaded’ the court with traffic barriers to highlight ongoing barriers to justice, and called on the Scottish government to remove all the financial obstacles that prevent people from taking environmental cases to court.

In October 2021, the Aarhus Convention’s governing bodies adopted Decision VII/8s – requiring Scotland, as part of the UK, to, “as a matter of urgency” meet six recommendations to make access to justice “fair, equitable, timely and not prohibitively expensive” by 1 October 2024.

The Scottish government has made only minor amendments to court rules which do not fully address the issues relating to court costs, and the First Minister’s 2024-5 Programme for Government dropped both a Legal Aid Reform Bill and a Human Rights Bill, both of which would have improved access to justice.

Shivali Fifield, ERCS chief officer, said: “Upholding our environmental rights in court is the ultimate guarantee of the rule of law. Without this credible threat, polluters can act with impunity.

“The Scottish government must take immediate action to replace the ‘loser pays’ rule, reduce courts costs, and expand legal aid, so that we can meet the access to justice requirements of the Aarhus Convention and make our legal system affordable.”

Phil Taylor, director at Open Seas, said: “Open Seas took Scottish ministers to court because they were failing to consider their own Marine Plan, when making decisions about fishing.

“Taking legal action like ours is incredibly expensive – equivalent to the annual cost of nearly three members of staff. Our costs were exacerbated by the government’s appeal, which was weak and sought only to re-litigate the same arguments.

“The environment needs strong voices to stand up for it and we need the burden of challenging governmental failures to be reduced.”

How forensic work by Crown Office specialists sealed the fate of major drugs traffickers

Over a period of three-and-a-half years, a team of specialist prosecutors painstakingly assembled a case which ensured James Stevenson and five other individuals were brought to justice.

The evidence produced in court exposed the truth behind Stevenson’s worldwide drug-trafficking operation to release a huge quantity of Class A drugs into Scottish communities.

At the core of the case lay a tranche of encrypted messages on the EncroChat platform which enables criminals using special handset devices to adopt and hide behind code names.

Prosecutors diligently scrutinised and digested thousands of messages between each of the accused.

Pivotal to a successful prosecution was attribution – which meant sifting through the messages to crossmatch the true identities of each accused with their secret EncroChat handles.

Crucially, these messages proved beyond doubt that Stevenson, as the ringleader, was giving orders and directing other individuals in this drug-trafficking operation.

Other evidence ingathered by the Crown, the National Crime Agency and Police Scotland linked Stevenson to a factory in Kent that produced millions of street valium tablets worth millions of pounds.

There was also an international dimension which required the Crown to work with foreign jurisdictions in Europe to demonstrate a trail of global drugs-trafficking that eventually led to a fruit merchant in Glasgow.

That diligence ensured the casework undertaken by the Crown Office was rewarded, with justice served on major international drug traffickers who now begin prison sentences totalling [insert here] years.

Deputy crown agent Kenny Donnelly said: “James Stevenson and his criminal associates were involved in drug trafficking on an industrial and global scale.

“But they have been brought to justice thanks to an extensive operation involving Police Scotland and the National Crime Agency, working with COPFS, to investigate and dismantle their network of drug supply.”

He added: “Our message is clear: we will leave no stone unturned in our pursuit of drug traffickers.

“They will be caught, they will be prosecuted, and they will be brought to account for their crimes through the courts. The sentences imposed reflect the gravity of the offences committed by Stevenson and his co-accused.

“It was clear from the EncroChat messages that, as the ringleader, he directed the group. The cocaine they were planning to distribute would have undoubtedly contributed to misery in our communities.”

More than 50 early release prisoners sent back to jail

A report from the Scottish Prison Service (SPS) shows that 57 of the 477 people released in the summer as part of the early release scheme were sent back.

Non-sexual crimes accounted for 20 cases; 17 returned for crimes of dishonesty and eight for crimes against society and anti-social offences.

A spokeswoman for the Scottish government said: “Whilst no level of re-offending is acceptable and we do not want any more victims of crime, the return to custody rate for those released under the scheme was substantially lower than the average re-conviction rate of those serving four years or less.

“The early release scheme for some short-term prisoners was necessary so prisons could continue to function safely and effectively, following a sharp and unexpected rise in the prison population.

“Public safety was paramount, with only those serving less than four years considered, with the majority eligible for release having 90 days or less left to serve.

“There were specific safeguards built into the process, including exclusions for those serving for domestic abuse and sexual offences, and a governor power of veto for those prisoners deemed an immediate risk to a specific individual or group.”

A spokesman for the SPS said: “Working with the Scottish government, and our partners, we delivered an emergency early release (EER) programme, which prioritised the safety and wellbeing of those in our care, victims, and the communities we serve.

“We have been open and transparent throughout, publishing the number of individuals released at each stage, followed by a series of breakdowns. The latest publication on returns to custody continues this approach.

“While EER provided much-needed respite to our establishments, staff, and those in our care, it was always recognised that this was a temporary measure.

“In recent months, our population has risen sharply once more, and remains extremely complex.

“This continues to have a significant impact on our staff and the time available to them to do the important work in supporting people, building relationships, turning lives around, reducing the risk of re-offending, and creating a safer Scotland for all.”

Andrew Kerr

“When Andrew Kerr, as a young lawyer, took on the task of acting as secretary to the still young Edinburgh Festival Fringe in 1967, it was a wayward and financially insecure organisation, viewed with some suspicion by the city fathers. The council did not warm to its chaotic expansion, and the police were unimpressed when Kerr applied for a licence to open a late-night club. ‘We’ll give you one night, and you’ll find that every known thief and prostitute will be in your place, and we’ll close you down straight away,’ he was told.”

Read the full obituary here

Compass Chambers recognised as top tier stable in Legal 500

Compass has received 26 individual rankings across three practice areas. Compass is also once again, recognised as a top tier stable in the categories of Personal Injury & Medical Negligence and Crime & Regulatory.

In Personal Injury and Medical Negligence, Compass has 14 members ranked and the directory says that Compass is “the premier stable in Scotland for personal injury disputes”
In Crime and Regulatory, Compass has 10 members ranked and the directory says that Compass is “the go-to stable for health and safety in Scotland”.

It also reports “Compass Chambers attracts praise as one of the first-choice stables for inquiry and reparation work”. Its also has two members ranked in the Administrative and Public Law category.

There is also praise for the clerking team with the directory reporting: “Gavin Herd is extremely efficient, organised and will also go the extra mile to help. He is also lovely to deal with. Lesley Hogg is also excellent and very helpful.” It also states: “Gavin and the team are very professional and prompt in dealing with matters.”

A full list of the rankings for the Scottish Bar can be found here.

Ampersand Advocates achieves top rankings in Legal 500

Ampersand has been listed as tier 1 in Administrative & Public Law, Personal Injury & Medical Negligence, Crime and Regulatory, and Property, Planning & Construction. The stable also secured a tier 2 ranking in Commercial Disputes. This comprehensive recognition spans an impressive 34 senior counsel rankings and 21 junior counsel rankings, including two rising stars, across the Scottish Bar listings.

Administrative and Public Law (Tier 1) Ampersand’s expertise in this area is highlighted by the rankings of Douglas Ross KC, Aidan O’Neill KC, Laura-Anne Van Der Westhuizen KC, Susanne Tanner KC and Paul Reid KC (2023 silk). The stable’s juniors Timothy Young and Ross Anderson are also recognized, with Michael Way noted as a rising star. Usman Tariq KC’s appointment to silk in September 2024 further strengthens the team.

Personal Injury and Medical Negligence (Tier 1) An impressive roster of silks includes Simon Bowie KC, Una Doherty KC, Lisa Henderson KC, Euan Mackenzie KC, Maria Maguire KC, Geoffrey Mitchell KC, Graham Primrose KC, Lauren Sutherland KC, Alan Dewar KC, Vinit Khurana KC, Douglas Ross KC and Fiona Drysdale KC (2023 silk). Jennifer Nicholson-White, Ayla Iridag, and Shane Dundas are recognized as leading juniors. James McConnell KC took silk in September 2024, further bolstering the team’s expertise.

Crime and Regulatory (Tier 1) The stable’s strength in this area is evidenced by the rankings of Simon Bowie KC, Lisa Henderson KC, Jamie Dawson KC, Una Doherty KC, Susanne Tanner KC, Geoffrey Mitchell KC, Paul Reid KC (2023 silk), and Fiona Drysdale KC (2023 silk). Ayla Iridag and Jennifer Nicholson-White are noted as leading juniors, with Michael Way recognized as a rising star. James McConnell KC and Usman Tariq KC were appointed to silk in September 2024.

Property, Planning and Construction (Tier 1) Robert Howie KC, Ailsa Wilson KC, Marcus McKay KC, and Laura-Anne Van Der Westhuizen KC are all ranked as leading silks. Eoghainn MacLean, Nicholas McAndrew, Ross Anderson, Timothy Young and Giles Reid are recognized as leading juniors.

Commercial Disputes (Tier 2) The stable’s commercial disputes team is led by silks Robert Howie KC, Laura-Anne Van Der Westhuizen KC, and Paul Reid KC (2023 silk). Ross Anderson, Eoghainn MacLean, Mark Boni, Timothy Young and Nicholas McAndrew are ranked as leading juniors, with Michael Way noted as a rising star. Usman Tariq KC’s appointment to silk in September 2024 adds further depth to the team.

Ampersand Advocates is also recommended in the Employment and Private Client and Family categories, with Aidan O’Neill KC ranked as a leading silk in Employment and Mark Boni recognised as a leading junior in Private Client and Family.

The stable’s clerking team, led by Alan Moffat, received high praise for their efficiency, responsiveness, and proactive approach.

These rankings reflect Ampersand Advocates’ continued excellence and dedication to providing top-tier legal services across a wide range of practice areas in Scotland.

Full listings, for all of Ampersand’s rankings can be viewed on the Legal 500 website here.

Our Legal Heritage: A Scots divorce and the Battle of Monte Cassino

By Gillian Mawdsley

What then do documentary records have to do with Roman law and the Battle of Monte Cassino?

In 1947, in the Outer House of the Court of Session, before Lord Bingham (1947 SLT (Notes) 3), the divorce case of D’Allesio was heard. The D’Allesios had married in Cassino on 4th September 1919. Mrs D’Allesio was now petitioning the court for a divorce. Her husband objected, originally, based on the court having no jurisdiction, claiming that he was outside its jurisdiction. This objection was subsequently withdrawn.

The issue was that there was no proof of the marriage having taken place.

The Cassino Records Office (and presumably its contents) had been destroyed in the heavy fighting around Monte Cassino in 1944. The Battle of Monte Cassino (otherwise known as the Battle for Rome) had involved the Allies advancing on Cassino with a number of artillery attacks over several months which ultimately included the destruction of the historic hilltop abbey. By 18 May 1944, allied flags were raised in victory amid the remains of the town of Cassino.

Without the actual record of the D’Allesio marriage, an alternative means of proof was needed for the court. It utilised Roman law. The process known as mancipatio was used to effect the transfer of property. That involved a ceremony requiring five adult male witnesses and a man holding a pair of scales, who was referred to as a libripens, for the transaction to take place. The procedure was abolished by Justinian. It was revived in a form for the purposes of the divorce action.

To prove the marriage, the wife relied on an instrument in Italian issued by the Cassino registrar. It stated that all its marriage records had been destroyed during the war. It also included the depositions of five (and it does not say what gender) witnesses confirming that the parties had indeed been married at Cassino on 4th September 1919. It included an English translation. There was also produced an admission on record produced to the court that the wedding had taken place. The various birth certificates of the children who were born in this country were provided which acknowledged and confirmed the date and place of their parents’ wedding.

The observation then made was to “how ancient customs persist” with the linkage between Scots law and Roman law fully acknowledged. However it does not go on to outline who devised this as the means of providing the best evidence.

However, it records that the divorce was indeed granted.

Report: Scottish economy under threat from skills shortages and ageing population

The Skills for Today and Tomorrow thought leadership report conducted by the Fraser of Allander Institute (FAI) on behalf of international law firm CMS, looks at the current skills landscape as well as demographic and technological challenges facing Scotland analysing key labour market trends.

It highlights a marked increase in job vacancies and a growing mismatch between the skills available and those demanded by employers. It references one in four Scottish employers reporting vacancies with nearly a third of these (31 per cent) classified as skill-shortage vacancies, a sharp rise from 2020. Skilled trades, associate professionals, and professionals claimed to be the most affected areas, with shortages in technical, analytical, and digital skills reported as most prominent.

The report also focuses on education and training, citing a lack of alignment between the skills taught and those required by rapidly evolving industries such as technology and renewable energy. As well as a lack in technical training, it raises concerns about deficiencies in soft skills such as adaptability, creativity, and communication within the current education system.

With the number of over-65s in Scotland expected to rise by a third over the next two decades, Skills for Today and Tomorrow also highlights how an ageing workforce is presenting a significant economic challenge. It refers to key sectors such as construction, health care, and transport which are under threat from workers retiring and highlights an urgent need for workforce planning to mitigate impending staff shortages.

The impact of migration and immigration policy on the labour market is also explored, with a focus on how post-Brexit immigration restrictions are making it increasingly difficult for employers to fill critical roles, especially within key sectors such as food and drink and tourism.

The report was launched at CMS’s annual On Point business conference held at Edinburgh’s EICC. Commenting on the report’s findings, CMS Scotland’s managing director, Allan Wernham, said: “We’re delighted to jointly launch this report with our partners at the Fraser of Allander Institute.

“It underscores the importance of creating a more agile and responsive skills system. Collaboration between government, industry, and educational institutions will be crucial in addressing current and future skill shortages, ensuring that Scotland’s workforce is equipped to meet the challenges of today while seizing the opportunities of tomorrow.”

Professor Mairi Spowage, director of the Fraser of Allander Institute, said: ”As well as highlighting key economic challenges, this analytical report explores how Scotland can leverage its world-class education system, burgeoning tech hubs, and leadership in renewable energy to ensure its workforce can meet the challenges of today and seize the opportunities of tomorrow.”

China and Hong Kong: Amnesty International recognises three activists as prisoners of conscience

Human rights lawyers Chow Hang-tung and Ding Jiaxi, along with the free media advocate Jimmy Lai, are all currently imprisoned because of their peaceful human rights activism. Amnesty International has called for their immediate release.

“As the Chinese government touts progress on its measures to promote human rights, the stories of these three human rights defenders demonstrate a starkly different reality inside the country,” said Sarah Brooks, Amnesty International’s China director.

“Meeting with diplomats; discussing politics; complaining about unfair treatment in police custody; talking with friends over dinner: these are all things that can get you jailed in today’s China.

“The ongoing detentions of Chow, Ding and Lai demonstrate the continuing failure of the authorities in China to uphold their international obligations, and their prosecution lays bare the cowardice of state officials who cannot accept criticism, whether from international experts or from their own citizens.”

Jimmy Lai and Chow Hang-tung have both been targeted amidst a broader dismantling of human rights and civic space in Hong Kong since the introduction of a Beijing-imposed National Security Law (NSL) in 2020. Ding Jiaxi, as with many human rights defenders in mainland China, is the direct victim of the authorities’ broad and vague national security-related laws that justify convictions in secret trials and lengthy jail sentences.

Amnesty International considers a prisoner of conscience to be any person imprisoned solely because of their political, religious or other conscientiously held beliefs, their ethnic origin, sex, colour, language, national or social origin, socio-economic status, birth, sexual orientation, gender identity or expression, or other status, and who has not used violence or advocated violence or hatred in the circumstances leading to their detention.

Ms Brooks said: “As part of its strategy to avoid scrutiny, the Chinese government routinely justifies ruthless repression – and rebuts efforts to hold authorities accountable for it – by describing it merely as ‘internal affairs’.

“This is why the stories of Jimmy Lai, Chow Hang-tung and Ding Jiaxi are so important. Theirs are the ‘internal affairs’ the Chinese authorities tell us don’t deserve attention, dignity or justice.”

Tax encouraging use of recycled materials approved at Holyrood

The Aggregates Tax and Devolved Taxes Administration (Scotland) Bill will replace the UK Aggregates Levy and tax the sale or use of aggregates consisting of freshly extracted rock, gravel or sand.

The bill also includes provisions to support the effective and efficient collection of all fully devolved taxes by Revenue Scotland.

Public finance minister Ivan McKee said: “By encouraging the use of recycled materials in aggregates across a range of construction-related activities, the Aggregates Tax Bill supports the Scottish government’s ambitions for a fair, green and growing economy.

“It has been informed by extensive engagement with the aggregates industry and others, and I look forward to continuing this positive relationship as we prepare to introduce the Scottish Aggregates Tax.”

Webinar series looks at land reform and community engagement

The series of 45-minute webinars are free to join with the first session at 7pm on Tuesday 29 October providing background on why land reform matters with future sessions tackling community and landowner collaboration, opportunities for community ownership and practical steps for engaging landowners. 

The webinars will provide an introduction for anyone with an interest in land use and ownership in Scotland and provide an opportunity to talk to the Commission’s Good Practice Team and guest speakers who are involved in inspiring land partnership projects.

Emma Cooper, head of land rights and responsibilities at the commission, said: “We’re excited to launch this new series of webinars to help make land ownership and use easier to understand for everyone. Land reform is at a crucial point, and it has the potential to tackle important issues like access to land for housing and business. We want to give people the knowledge and tools they need to get involved and make a real difference.

“We hope these sessions will spark interest and encourage more people to engage with land reform and explore opportunities for communities to get involved.”

Register here

ALP obtains four-figure settlement for client in advance of employment tribunal

Prior to ALP’s engagement in the matter, the client was preparing to represent himself at an employment tribunal in Edinburgh, despite having no legal knowledge or experience. Lead adviser Neve Hamilton and the ALP team prepared the client for his tribunal, drafting his submissions and providing legal advice. During the process, it became clear that pursuing a settlement would be more advantageous than proceeding to tribunal.

The client said: “Thank you once again for your continued support and guidance throughout this process. Your expertise and the resources provided by the Aberdeen Law Project have been invaluable in helping me navigate this challenging situation.”

Ms Hamilton said: “I knew this case was causing my client severe stress prior to ALP’s involvement. Hearing such a sincere message of thanks has reinforced my belief in the importance of ALP’s work for the community and I look forward to working on the cases to come.”

Slater and Gordon helps children’s bereavement charity expand

Richmond’s Hope has worked with families who have suffered loss since its creation in 2003, and has bases in Edinburgh and Glasgow. It has worked directly with over 4,000 children aged between four and 18 who have experienced bereavement, providing individual support to help them to process their grief and understand the impact of the death of a loved one.

Statistics show that in Scotland, one in 29 children aged under 16 are impacted by the loss of a parent or sibling – an average of one in every school class – which helps to lay bare the scale of support that is needed.

Amidst demand for its services nationally, the charity has opened a new satellite service in Methil, Fife – an area where there are no other dedicated children’s bereavement support services. It will also be opening another satellite office in Dunbar in the near future.

Richmond’s Hope is now able to support 50 children and families each year from its base at the Wellesley Centre in Methil, providing much-needed interventions closer to the child’s home, while also saving significant travel costs needed to access its service in Edinburgh or Glasgow.

The expansion into Fife has been supported by Slater and Gordon, which is financing one of the two part-time bereavement support workers based in Methil.

Sam Harrison, regional bereavement coordinator at Richmond’s Hope, said: “We are so grateful for Slater and Gordon’s funding which will help us reach more children and families in Methil and the surrounding areas. We are excited about this partnership, which will both raise awareness of the work we do with families and the impact bereavement has on children across Scotland.”

Derek Couper, principal lawyer at Slater and Gordon in Scotland, added: “There is huge pressure on support services for children who have suffered bereavement, and in some parts of Scotland there is no provision at all.

“Richmond’s Hope is a lifeline for so many families and has been a vital support for children in dealing with grief for over 20 years. It is fantastic news that families in Fife can now benefit from this service in their own community, without having to make a long and expensive journey to access the support they really need, and also that further expansion is planned.

“We are so pleased to lend our support to the amazing team at Richmond’s Hope as they grow their service, which will have a profound and genuinely life-changing positive impact on more children across our country.”

Quote of the day

Civilization is not inherited; it has to be learned and earned by each generation anew; if the transmission should be interrupted for one century, civilization would die, and we should be savages again.

Will Durant and Ariel Durant, ‘The Lessons of History’ (1968)

And finally… line in the snow

Part of the border between the two Alpine countries has historically been marked by the watershed of the Theodul glacier.

However, the glacier has shrunk significantly, losing almost a quarter of its total mass between 1973 and 2010 and even more since then.

While the two countries have occasionally redrawn the border in response to glacial changes, the most recent revision – approved in Switzerland and now pending formal Italian approval – is more complex as it is very close to a massive skiing resort, Euronews reports.

The need for a revision became apparent two years ago, when a mountain refuge said it no longer knew whether it was located in Switzerland or in Italy.

It is the first time that economic considerations have been taken into account in redrawing the 100-metre-long section of the border.