OUTER HOUSE, COURT OF SESSION

O/443/5/99

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD GILL

in the cause

LINDA CALLAGHAN

Pursuer;

against

SOUTHERN GENERAL HOSPITAL

NHS TRUST

Defender:

 

________________

 

 

Pursuer: Milligan; Digby Brown

Defender: Macdonald QC, MacSporran; Ranald F Macdonald

 

 

23 June 2000

 

  1. Introduction

[1] This is an action of damages for personal injury. The pursuer avers that on or about 22 August 1996, in the course of her employment with the defenders as an auxiliary nurse at the Southern General Hospital, Glasgow, she sustained an injury to her back.

[2] At the material time the pursuer was working in Ward 62, a neuro-medical ward which was part of the Institute of Neurological Sciences. On 11 August 1996 Mrs Anita Niven was admitted to Ward 61. She had suffered an intracranial venous thrombosis. Mrs Niven presented special problems to the nursing staff. She weighed about 23 stones. She was physically strong. Her condition made her confused, restless and aggressive. On 18 August she was transferred to Ward 62. In Ward 62 Mrs Niven repeatedly attempted to pull out her tubes. On at least one occasion she attempted to pull off her face mask. She was violent to some of the nursing staff.

[3] The pursuer's averments relating to the accident are as follows:

"On 22nd August 1996 the pursuer was required to work with the patient. The pursuer was part of a team which required to transfer the patient to the special bed. The team consisted of eight people. About two hours later, the pursuer was told by Staff Nurse Linda (sic) McKay to help her intubate the patient. The patient required to be medicated using a naso-gastric tube. The patient's mother was the only other person present. The pursuer was required physically to restrain the patient. At the time, the pursuer was about five foot two and weighed about nine stone. The pursuer had to attempt to restrain the patient by getting on top of the patient. Normally a team of at least four would be required in such a situation, two on each side of the patient to be restrained. The patient resisted forcefully. The pursuer was instructed by Staff Nurse McKay to hold the patient's arm still. The pursuer had one knee on the bed and one foot on the floor leaning across the patient to try and hold her hands down. The pursuer's spine was bent and her position was vulnerable. As Staff Nurse McKay was taping down the naso-gastric tube, the patient pushed the pursuer away, causing pain in the pursuer's lower back. In attempting to restrain the patient manually, the pursuer suffered the loss, injury and damage hereinafter condescended upon."

[4] The defenders aver that it is not known and not admitted that the pursuer sustained loss, injury and damage on this date. They make the following positive case:

"Esto the pursuer sustained injuries involving the patient Anita Niven, which is not known and not admitted, explained and averred that at the material time Staff Nurse McKay was attempting to insert a naso-gastric tube such that the patient could take her naso-gastric food. Staff Nurse McKay was assisted by the pursuer who held one of the patient's hands whilst the patient's mother held the other hand."

[5] The pursuer imputes fault to the defenders at common law on the basis that it was their duty to take reasonable care to provide her with a safe system of work; to provide her with safe and suitable work equipment; to provide her with proper training in methods of restraint; to provide her with sufficient assistance to restrain large, aggressive, unco-operative patients; to assess patients before attempting to treat them; to provide restraining aids, and not to require the pursuer to have to lean across the patient to restrain her.

[6] The pursuer also pleads a statutory case under the Manual Handling Operations Regulations 1992; but at the conclusion of the proof before answer counsel for the pursuer abandoned this case.

II The pursuer's health before the incident

[7] The pursuer is now aged 38. Before she entered employment with the defenders she had a good record of work, mostly in retail. Latterly, she was an assistant departmental manager with House of Fraser. She enjoyed pastimes such as walking, gardening and badminton and had an active social life.

[8] In January 1994 the pursuer entered the employment of the defenders. The defenders' health assessment made at that time records that the pursuer was "considered fit for the proposed employment". Thereafter she was given training in the techniques of handling patients. The pursuer was hard-working, enthusiastic and reliable and was well thought of by the senior staff.

[9] In June 1995 the pursuer had a child, Rachel. For several months after the birth the pursuer suffered from post-natal depression. Part of this condition was a compulsive cleaning obsession. She also suffered from insomnia and anxiety. She was treated for these problems by her general practitioner, Dr Carolyn Gillies.

[10] In January 1996 the pursuer returned to work. She was not as confident as she had been before the birth. She showed some signs of anxiety. Nevertheless she was able to cope with full-time work and none of her superiors expressed dissatisfaction with the quality of her work.

[11] On 19 February 1996 the pursuer was seen by one of Dr Gillies' colleagues. His notes of the consultation record that she was managing well at work and feeling better, but that she had continuing low back pain.

III The nursing problems associated with Mrs Niven

[12] In Ward 62, Mrs Niven was at first in a bay of four beds. Her restlessness disturbed the other patients. Because of her weight her bed was unstable. On 20 August 1996 the senior nursing staff decided that Mrs Niven should be moved to a side room and placed on a maxicare bed. In the course of that afternoon a team of about eight members of the nursing staff, including the pursuer, moved her with the aid of a "patslide". During the transfer Mrs Niven struggled violently. She twisted the finger of one of the nursing team. This incident was recorded in the nursing notes.

[13] The maxicare bed was an air-filled therapy bed. The top of the mattress was at about the level of the pursuer's chest. By reason of Mrs Niven's obesity, her body almost completely occupied the bed. When she was lying on her back on an ordinary hospital bed, her body was about level with the top of the cot sides.

[14] In the evening of 22 August 1996 at about 6.30 pm Mrs Niven was violent to Staff Nurse Byrne and broke the skin of her finger. Mrs Niven also pulled off her mask and pulled out her naso-gastric tube. These incidents were recorded in the nursing notes.

[15] Staff Nurse Lindsey McKay then came on duty and prepared to replace Mrs Niven's naso-gastric tube. The procedure of intubation is distressing for the patient. Staff Nurse Lindsey McKay was an experienced neuro-medical nurse. She asked the pursuer to assist her. The procedure was carried out at about 9pm. This was the incident to which this action relates.

IV The pursuer's and Staff Nurse McKay's accounts of the incident

[16] The pursuer and Staff Nurse McKay were the only witnesses to this incident. The pursuer's evidence was to the effect that she stood beside Staff Nurse McKay to the patient's right. Staff Nurse McKay instructed her to hold down both of the patient's hands to prevent her from pulling the tube out. To do this, the pursuer, who is small and was then slightly built, had to reach over the patient. The pursuer placed her right knee on the bed, which was a soft and yielding surface, and kept her left foot on the floor. The patient was fighting and pushing against her. Meanwhile the patient's mother stroked the patient's head and reassured her. The pursuer had to put all her weight onto the patient while holding both her hands. In this way the pursuer was reaching and twisting. Just after the tube went down the pursuer felt a sharp pain in her back.

[17] Staff Nurse McKay said that she asked the pursuer and the patient's mother each to hold a hand in order to calm and reassure the patient. Staff Nurse McKay, being right-handed, stood at the patient's right, level with her chest. The pursuer stood beside her and held the patient's right hand. The patient's mother stood at the other side of the bed and held her left hand. The intubation was effected at the second attempt. The pursuer did not kneel on the bed nor reach across it. Throughout this procedure the patient was moaning and moving her arms a little bit, but she was not too boisterous and was not thrashing about. In the course of the intubation the pursuer said to Staff Nurse McKay "That hurt". She did not specify what it was that had hurt her. Staff Nurse McKay thought that the patient had hurt the pursuer's hand.

V Subsequent reports and accounts

[18] Immediately after the intubation, Staff Nurse McKay asked the pursuer whether she wished her to make out an accident report. The pursuer said that she did not and that she would be all right in the morning.

[19] At 10 pm, about an hour after the intubation, Staff Nurse McKay made a record of it in the patient nursing notes. That record makes no mention of the patients having struggled during the procedure.

[20] On 5 September 1996 the pursuer consulted her general practitioner, Dr Carolyn Gillies. Dr Gillies' notes record that the pursuer complained, inter alia, of "Persistent pain (L) side lower back for months ... " The pursuer did not mention an accident at work.

[21] On 21 September 1996 the Ward Sister, Christine Beattie, instructed Staff Nurse McKay to make out an accident report and to send the pursuer to Accident and Emergency for examination. The pursuer provided details for the report. Section H of the report describes the incident as follows:

"Linda has back pain probably due to lifting heavy patients. Had been moving a 24 stone patient. Also had to lean over high bed and hold onto Anita's hand while having a naso gastric tube passed. Anita powerful."

This is the first recorded reference to the incident.

[22] The clinical notes made that day at the Accident and Emergency Department include the following account:

"Back pain [?for] 2/52 after being lifting patients ... "

[23] On 26 September 1996 the pursuer was seen at the defenders' Occupational Health Department by the Senior Registrar, Dr Peter Noone. Dr Noone's notes of his examination state, inter alia;

"Back pain ... started 3-4/52 ago - on ward - patient 23 stone - transferring from bed - 6 in to help - hydraulic hoist - roll over to get sling under (patient unco-operative). NG tube down - back pain since worse @ night ... "

[24] Dr Noone understood that the triggering event was the attempt to get the sling under the patient.

[25] On the same day, Dr Noone wrote to Mr Michael Hullin, a consultant orthopaedic surgeon at the hospital, to refer the pursuer for a consultation. His letter of referral stated, inter alia:

"I would be grateful if you could see this 34 year old Nursing Auxiliary on Ward 62 who suffered a back injury whilst lifting a patient at work some four weeks ago now ... "

[26] On 28 October 1996 Dr Noone saw the pursuer again. On that date he wrote to the pursuer's Senior Nurse Manager, Mrs M Edwards, and said;

"I reviewed this 34 year old Nursing Auxiliary at Occupational Health today regarding her continued sickness absence due to a lower back injury which happened at work around the start of September 1996. This occurred while lifting a 23 st patient in a team lift ... "

[27] On 14 July 1997 Dr Noone examined the pursuer again. On this occasion she gave him the account of the intubation with the naso-gastric tube.

[28] On 2 December 1996 Mr Hullin saw the pursuer. On that date he dictated a letter to the pursuer's General Practitioner. The letter is dated 5 December 1996. It reports the history given to Mr Hullin as follows:

"This young lady, who works as an auxiliary nurse in Ward 62 of the Southern General Hospital, was transferring a 22 stone patient from bed to bed on 22 August 1996 and was involved with bending over and holding the patient down while a tube was inserted. She was aware of back pain at that time but managed to finish her shift and work for the next three days ... "

[29] By letter dated 6 January 1997 Dr Noone referred the pursuer to Mr Kenneth Lindsay, a consultant neurosurgeon at the Southern General Hospital. In the letter of referral Dr Noone said:

" ... She has been absent from work since September 1996 with a back injury which she claims happened at work whilst lifting a 23 stone patient on Ward 62 ... "

[30] On 6 May 1997 Mr Lindsay saw the pursuer. He took a history from her and noted in his records "Aug 96 - lifting pt". In his letter to the pursuer's doctor dated 7 May 1997 he wrote:

" ... I note that she is a 35 yr old auxiliary nurse in the neurology ward who has been off work since September 96. In August of that year she developed back pain after lifting a patient followed the next day by left leg pain radiating to the dorsum of the big toe ... "

[31] In October 1999 the pursuer was examined at the Western Infirmary, Glasgow by Mr Umberto Fazzi, a consultant orthopaedic surgeon. Mr Fazzi's report was not produced; but in cross-examination he was asked what description of the incident the pursuer had given to him. He said that the pursuer had told him that she felt the pain when she was restraining a patient who was having a naso-gastric tube inserted. He said that the pursuer had described having been "astride the patient holding the patient's shoulders down."

VI The credibility of pursuer's account of the incident

[32] In this case, the pursuer is not corroborated. Her account of the material incident is contradicted by Staff Nurse McKay. The pursuer's credibility and reliability are therefore all-important. I am not satisfied as to the pursuer's credibility in her account of the circumstances of the incident. I have reached this view for the following reasons.

[33] First, I prefer the evidence of Staff Nurse McKay. Staff Nurse McKay impressed me as a straightforward witness who had a good recollection of the essentials of the incident. There was an inconsistency between her evidence and that of the pursuer as to where the pursuer was standing during the intubation procedure. Staff Nurse McKay said that the pursuer was standing to her left, that is to say nearer to the head of the bed, whereas the pursuer said that she was standing to Staff Nurse McKay's right nearer to the foot of the bed. In my view it is more probable that the pursuer was standing to Staff Nurse McKay's right. From that position she would be nearer to the patient's hand and would not be obstructing the intubation procedure. However, I do not regard that discrepancy as being fatal to the credibility of Staff Nurse McKay on the essentials of the incident. On the whole matter I consider that she is a more reliable witness to the incident than the pursuer.

[34] On the other hand, the pursuer did not impress me as having a good and accurate recollection of the incident to which she spoke. It is significant that the pursuer thought that the intubation took place on the same day as the transfer of the patient to the side room. It is clear from the nursing records however that it took place two days later.

[35] Second, there is the unlikelihood that the incident occurred as the pursuer described it. In view of the size and width of the patient and the height of the bed, it would have been difficult for the pursuer to reach across the patient and hold down both of her hands. In reaching this conclusion I accept the view of Sister Beattie and Mrs Wilson, the defenders' Moving and Handling Co-ordinator, who had considered the handling problems associated with this patient, that it is hard to envisage such an operation. Moreover, there was no obvious reason for the pursuer to be required to do so since the patient's mother was at the other side of the bed and in a position to hold the patient's hand. I find it improbable that the staff nurse would have instructed the pursuer to hold down both of the patient's hands when this would involve her breaking all the obvious rules of safe handling.

[36] Third, the patient's clinical notes cast doubt on the pursuer's account. The patient's notes contain several entries recording incidents in which she struggled with staff or pulled out her tubes. If the patient had struggled during the intubation with which this case is concerned, it is almost certain that Staff Nurse McKay would have noted such a material fact in the records. The entry made at 10pm that evening, to which I have referred, confirms me in the view that Staff Nurse McKay is correct in her account that the patient did not struggle during the intubation.

[37] Fourth, there are inconsistencies in the pursuer's subsequent accounts of the cause of her back injury. The entries in the medical records made by the numerous doctors who took a history from the pursuer indicate that the pursuer's explanation of the cause of her back pain was neither consistent nor clear. Since none of these doctors had first-hand knowledge of the incident in which the injury was alleged to have occurred and were depending on the pursuer for the history, I conclude that in each case the entry accurately reflects what the pursuer said. While it is possible that any one of these doctors may have misunderstood the patient's account of the history, it is improbable that all of them did.

[38] Fifth, the pursuer's credibility is shaken by her statement in evidence that she had not suffered from back pain before the incident to which she spoke. This evidence is contrary to an admission on record. The general practitioner records show that she consulted one of Dr Gillies' colleagues on 19 February 1996 complaining of back pain. This is confirmed by the notes of her consultation with Dr Gillies on 5 September 1996.

[39] Finally, I consider it significant that when the pursuer consulted Dr Gillies about two weeks after the alleged incident, she did not suggest that her back problem was related to an incident at work. Instead, she spoke of having had low back pain for months. The pursuer said in evidence that she was sure that she had told Dr Gillies about the incident on that occasion and that Dr Gillies' notes of the consultation were inaccurate. I do not accept this. I accept Dr Gillies' evidence that when the pursuer complained of back pain, she would have asked her what brought it on and would have recorded the patient's own words in the notes. This is in keeping with the notes of one of Dr Gillies' colleagues of the consultation with the pursuer on 19 February 1996 to which I have referred.

VII Conclusions

[40] I need not analyse the evidence or the law as to the safe handling of patients. I understood that counsel were agreed that if the accident occurred as the pursuer described, the defenders would be liable at common law. I conclude on the evidence that the pursuer has failed to establish the essential factual averments made on record. On the contrary, I find that the pursuer was required to hold only one of the patient's hands and that the patient did not struggle with her or resist her in any way that could have caused the pursuer to sustain an injury to her back. Since I do not accept the pursuer's account of the incident for the reasons that I have given, I conclude that the pursuer's current back condition, which I accept exists, is not a consequence of the incident to which the pursuer spoke.

VIII The pursuer's present condition

[41] On the day after the intubation, the pursuer was at work. Her lower left back was sore. She took some days off. She returned to work from 29 August to 1 September. She was off from 2 to 6 September. In the following weeks she was in severe pain, day and night. The pain spread to her left leg and foot. Her movements were restricted. On 21 September 1996 she was sent to Accident and Emergency. She was off work from then until August 1997 when her employment was terminated on the grounds of her continued unfitness. She has been unable to work since.

[42] By reason of her immobility her weight has risen from about 91/2 stones to 12 stones. She can no longer go out of the house without assistance. She can walk for about 50 - 75 yards at most. She finds it difficult to cope with Rachel, who is now about 5 years old. She depends for assistance in routine tasks on her husband, her mother and her elder daughter Lynne, who is now aged 21. Her husband helps with the housework and meals, helps her in and out of the bath, and helps with Rachel. He takes the pursuer out in the car. Her mother does the washing and ironing, takes Rachel to the nursery and baths her. The pursuer no longer has any pastimes. She is now virtually housebound.

[43] There are no clinical findings that can explain the severity of the symptoms of which the pursuer complains. The pursuer has had physiotherapy, hydrotherapy, traction and counselling for pain relief management. She has had the use of a TENS machine. She has been examined by three consultant orthopaedic surgeons, namely Mr Michael Hullin of the Southern General Hospital, Glasgow, Mr Umberto Fazzi of the Western Infirmary, Glasgow, and Mr John Christie of the Royal Infirmary, Edinburgh. She has also been examined by Mr Kenneth Lindsay, a consultant neurosurgeon of the Southern General Hospital, Glasgow. I accept the evidence of each of these surgeons, which is all to similar effect, that the pursuer is suffering from mechanical back pain. There is no compression or displacement of a nerve root, or a prolapsed disc. Her condition is not one for which surgery holds out any hope of relief. The pursuer's condition can be remedied, or can at least be palliated, by physiotherapy, by rest and by the passage of time.

[44] However, the condition has been aggravated by serious psychological sequelae. The pursuer now suffers from persistent anxiety and depression. She is tearful and irritable. She has lost confidence. The unanimous view of the surgeons who have examined the pursuer is that her symptoms and functional problems are out of all proportion to the clinical signs.

[45] Since November 1999 the pursuer has been attending a clinical psychologist, Dr Stuart Jarvie of the Baird Street Centre in Glasgow, for help in the management of her pain. Dr Jarvie considers that she is suffering significant symptoms of anxiety, depression and pain disorder. He thinks that it is too early to say whether she will recover fully; but he thinks that some recovery is likely. Her co-operative attitude gives him cause for optimism.

IX Is the pursuer's psychological condition a consequence of back pain?

[46] A question arose at the proof as to whether the pursuer's psychological symptoms are a consequence of back pain or are a manifestation of a pre-existing condition. The case for the defenders was that the pursuer had suffered from depression after the birth of her child; that she had not fully recovered from it in the period between her return to work and the intubation incident, and that her present psychological symptoms were merely a continuation of the pre-existing condition.

[47] Apart from a comment by Sister Beattie that after her return to work in January 1996 the pursuer appeared to be more anxious, the only support for this line of defence came from a clinical psychologist, Dr Ian Tierney of the Keil Centre, Edinburgh, who examined the pursuer on behalf of the defenders. In his Report dated 16 February 2000 Dr Tierney stated, inter alia:

"As far as her medical notes are concerned I note that in 1992 Mrs Callaghan complained of difficulties with something stuck in her throat ... (p 2) ... There was considerable evidence in her notes that this lady may have suffered from an anxiety related condition (globus hystericus) for many years, at least since 1991 and that in the eighteen months prior to the incident at work she was suffering significant symptoms of psychological distress noted as anxiety, depression and obsessional compulsive symptoms ... (p 6)."

[48] On this basis Dr Tierney concluded that the causes of the pursuer's functional overlay existed before the incident at work and were not a consequence of it.

[49] Dr Tierney's account of the medical records that I have quoted contains two material inaccuracies that a careful reading of the records would have avoided. I need not go into the details, since it is not disputed by counsel for the defenders that on these points the Report is factually inaccurate. While it was not clear to me exactly what Dr Tierney's final position was on this question, it is sufficient for me to say that I reject the contention in his Report that the pursuer's present psychological condition predated the incident. The factual basis for that theory is flawed. But more importantly, in my view, there is no support for it in the medical evidence and it is rejected by a consultant psychiatrist, Mr Ernest Bennie, who is familiar with such problems. Mr Bennie has over 30 years' clinical experience, much of it with patients such as the pursuer. Mr Bennie's evidence impressed me. In February 2000 Mr Bennie examined the pursuer at her home. He concluded that the pursuer's psychological difficulties were genuine and were a consequence of her mechanical back pain. I accept Mr Bennie's assessment.

[50] All the evidence from qualified sources other than Dr Tierney suggests that the pursuer's psychological condition is a consequence of her present mechanical back pain. The pursuer had a good work record before the birth of her child. She had considerable enthusiasm for nursing. Her problem in the months after the birth was the specific problem of post-natal depression. It was successfully dealt with by the pursuer's general practitioner. The evidence of Sister Beattie that the pursuer seemed to be more anxious after she returned to work does not, in my view, establish that the pursuer was suffering from depression. It is perhaps not surprising that she was anxious, having been off work for over six months. By January 1996 she no longer needed to attend Dr Gillies for treatment for post-natal depression. Between 30 April 1996 and 5 September 1996 she did not have to consult Dr Gillies at all. If the pursuer's psychological condition had given cause for concern in the period after her return to work in January 1996, I would have expected that to be recorded in her employment records. My conclusion is that the pursuer's psychological condition steadily improved during the second half of 1995 and that she had recovered from her post-natal depression by the time of her return to work in January 1996.

[51] Unfortunately, this psychological overlay means that a condition from which a more robust and less vulnerable patient would have recovered without undue difficulty has had a longer-lasting effect on the pursuer.

X Malingering and Factitious Disorder : the evidence of Dr Tierney

[52] In answer to the pursuer's condescendence of loss the defenders make the following averments:

" ... On or about 9th August, 1999 the pursuer attended upon her General Practitioner and requested a referral to a psychologist. Further explained and averred that when the pursuer was seen by Dr Ian Tierney, a Clinical Psychologist, on or about 10th February, 2000, she reported to him that prior to the accident condescended upon by her she was "an outgoing, bubbly individual, who has no psychological problems". Explained and averred that in fact the pursuer was absent from work, and certified as such, from 18th August, 1995 until 2nd February, 1996 due to an anxiety state. Further the pursuer was referred by her General Practitioner, in May 1992, to the Southern General Hospital. At that time the pursuer felt that she had something stuck in her throat. Her General Practitioner queried whether the problem might be globus hystericus. In or about April 1999 the pursuer was again referred by her General Practitioner to the Southern General Hospital because she was complaining of something being stuck in her throat over the previous four months (Ans 5) ... "

[53] In the course of the proof before answer counsel for the defenders sought to elicit evidence that the pursuer was either malingering or suffering from a factitious disorder. The point arose during the cross-examination of the pursuer, Dr Jarvie and Mr Bennie. It arose more acutely in the evidence-in-chief of the defenders' witness, Dr Tierney. In his Report dated 16 February 2000 Dr Tierney cast doubt on the pursuer's veracity and suggested that she was malingering or was suffering from a factitious disorder. Counsel for the defenders sought to lead evidence from Dr Tierney to this effect.

[54] When the point was raised, counsel for the pursuer objected both to the question and to the line of evidence on the ground of no record. I allowed the questions and the line under the usual reservation as to competency and relevancy. Since counsel for the defenders insisted in this line of defence and founded on the evidence on the point in his closing submissions, I now have to decide on the admissibility of this evidence.

[55] I accept that the defenders in an action of this kind are entitled under cover of a general denial of the pursuer's averments of loss positively to assert the opposite of the pursuer's evidence; but where the defenders seek to raise a new and independent point they must, in my opinion, give proper notice of it on record (cf Neilson v Househill Coal & Iron Co (1842) 4 D 1187, Lord Justice-Clerk Hope at 1193). This is such a point.

[56] The defenders' averments as to the examination of the pursuer by Dr Tierney are made with a view to establishing that a specific remark was made to him by the pursuer. They do not foreshadow the suggestion made in Dr Tierney's Report that the pursuer is malingering or is suffering from a factitious disorder. In my view, it is not open to the defenders to take this point without having given proper notice of it on Record. I am confirmed in this view by the fact that the Report was lodged on the first morning of the proof and by the fact that the literature relating to the interpretation of the psychometric test on which Dr Tierney relied for his theory, was not produced. I shall therefore sustain the objection.

[57] Even if I had repelled the objection, I would have rejected the evidence to which it relates. Part of Dr Tierney's remit was to assess the genuineness of the pursuer's complaints from a psychological point of view. Dr Tierney examined the pursuer shortly before the proof. He gave her various psychometric tests and assessed her from interview, from observation, from a reading of her medical records and from her performance on the tests. One such test was the Structured Interview of Reported Symptoms (SIRS) the purpose of which is to detect whether the patient is feigning or exaggerating.

In his Report dated 16 February 2000, Dr Tierney stated inter alia:

"I had intended to complete the psychometric assessment of this lady using the Maudsley Obsessional Compulsive Inventory to assess the degree of obsessional behaviour. However after the SIRS I was reluctant to use any further psychometric assessments on the basis that I was firmly convinced that Mrs Callaghan was either Malingering or presenting with a Factitious Disorder either of which would lead to distortion of self report."

Dr Tierney adhered to this contention in his evidence. He said that in the course of his examination of the pursuer he became concerned as to her veracity. He considered that she was exaggerating and possibly feigning. He defined malingering and factitious disorder. In his definitions the difference lies in the underlying motivation. In the former case the patient exaggerates for the purpose of material gain. In the latter the patient exaggerates for the purpose of obtaining psychological support from family, friends and doctors. As I understood him, Dr Tierney considered that on either basis there was an intent to deceive. Dr Tierney suggested as an explanation that after the birth of Rachel the pursuer had sought a means of being at home with her without losing income. She therefore had to be off sick. On the basis that she was unfit for work she had received support from her family. She then could not get out of the situation because she could not acknowledge that she had received family support on a false basis. She had taken up a "sick role".

[58] It may be that from his professional standpoint the evidence that Dr Tierney obtained was sufficient for him to be "firmly convinced" of the judgment that I have quoted. In making my own judgment on the matter I have taken into account a much wider picture drawn from numerous sources of relevant evidence, not least the medical evidence.

[59] The pursuer has been examined over the years by at least four consultant surgeons; by a consultant psychiatrist of long experience and, in my view, of evident good judgment; and by the defenders' senior registrar in occupational health, Dr Noone. She has also been seen on numerous occasions by Dr Gillies, who has given her every appropriate form of primary care. None of these doctors has even suggested the possibility that the pursuer is a malingerer or that she suffers from a factitious disorder.

[60] Dr Jarvie is now treating the pursuer. His qualifications are comparable with those of Dr Tierney. He appeared to me to be a reliable witness who had taken a constructive approach to the pursuer's problems. He did not suggest that the pursuer was a malingerer or was suffering from a factitious disorder. He considered that her co-operation in attending at the Baird Street Centre pointed against a diagnosis of malingering. He accepted that the pursuer's scores on Dr Tierney's tests were high, but he did not find that surprising. In his experience, in cases involving pain disorder and anxiety an exaggerated presentation becomes part of the patient's symptoms. To Dr Tierney's two suggested diagnoses he added a third, namely that the pursuer has a histrionic and attention-seeking reaction to what was nonetheless genuine pain. As I understood his evidence Dr Jarvie did not accept that there was any deliberate attempt by the pursuer to mislead. He was satisfied that the pursuer was genuine in her complaints of pain. I accept his view.

[61] Mr Bennie too saw Dr Tierney's test results and rejected his theory. In Mr Bennie's view the pursuer did not fit the standard criteria for the diagnosis of malingering set out in the Diagnostic Statistical Manual (4th ed) of the American Psychological Association. His view was that malingering was a dangerous diagnosis to make.

[62] Moreover, I consider that it is unlikely that the pursuer, who had such a satisfactory work history before she entered nursing, and who was so committed to a nursing career, is the sort of person who would, from whatever motive, act in the way that Dr Tierney has suggested.

[63] I therefore reject Dr Tierney's evidence on this point.

XI Quantum of damages

Solatium

[64] On the unanimous evidence of the consultant surgeons I would have assessed solatium on the basis that the pursuer is suffering from a straightforward condition of mechanical back pain for which no surgical intervention would be helpful or appropriate. There are reasonable prospects that with rest and other normal treatments the pursuer's condition will be alleviated over the next few years. I would have included the psychological element in the calculation of solatium without making any discount for any predisposition to that condition on the pursuer's part.

[65] Counsel for the pursuer referred me to Duffy v Lanarkshire Health Board (1995 SLT 1312), Bush v Greater Glasgow Health Board (1995 GWD 25-1333), Hay v The Secretary of State (1998 SLT 436) and Burke v Royal Infirmary of Edinburgh NHS Trust (1999 SLT 539).

[66] In Duffy, the pursuer was found to have had a predisposition to depression. Solatium, which would otherwise have been assessed at 16,000, was discounted to 5,000 on that account. In Bush, solatium for a chemical burn and its psychological consequences was agreed at 20,000; but a discount of 20% was made from the overall figure to take account of the possibility that the psychological effects could have been triggered by some other equivalent event. In Hay the pursuer suffered a soft tissue injury to her buttock. There was no organic cause for the buttock pain that she experienced nor any clinical reason, so far as either her buttock or lower back was concerned, that would have prevented her from working. She nevertheless suffered some sort of psychological disorder and perceived herself as being disabled by pain in that area. Lady Cosgrove held that the accident was the trigger for the pursuer's psychological problems. On that basis she assessed solatium at 8000 with no discount. In Burke, the pursuer was 26 at the date of the accident. He was found to have had no predisposition to the psychological effects of his back pain. Solatium was assessed, again without discount, at 20,000. In that case it was found that there was little prospect of improvement in the pursuer's symptoms.

[67] Counsel for the pursuer also referred me to McDonald v Chambers (5 January 2000, unrepd., Lord McCluskey), to indicate that solatium values are rising sharply, and to the Judicial Studies Board guidelines. He proposed that I should assess solatium at 25,000.

[68] I consider that there is a reasonable prospect that the pursuer's condition will be alleviated over the next few years, particularly in view of the help that the pursuer is receiving from Dr Jarvie. With the guidance of these decisions, and particularly those in Hay and Burke, I would have assessed solatium in this case at 12,000 and made no discount. I would have allocated one half of this sum to the past and allowed interest on that at 4%.

Past wage loss

[69] Past wage loss including interest to date is agreed at 16,572.

Future wage loss

[70] Counsel agree that full wage loss in this case for the remaining twenty two years to age 60, if paid in a lump sum now, would fall to be assessed at 93,015. I accept that the prognosis for the pursuer is uncertain and that there is serious cause for concern as to whether she will ever return to auxiliary nursing. However, there must be some discount on the agreed figure for contingencies such as the possibility that for other reasons the pursuer would not have worked to age 60 anyhow and the possibility that she may return to some form of light work, perhaps on a part-time basis.

[71] There is a real prospect, in view of Dr Jarvie's evidence, that the pursuer will recover sufficiently to be able to return to some form of work within the next few years.

[72] Counsel for the pursuer suggested that I should discount the agreed figure by 50% to allow for such contingencies. On the other hand counsel for the defenders suggested that since there was a serious prospect of the pursuer's returning to work I should allow wage loss of three to five years at the most. This is not a calculation on which there need be any degree of actuarial precision. I would have taken a broad axe to the problem and assessed future wage loss at 30,000.

Pension loss

[73] Full pension loss has been agreed in this case at 23,000. This figure is based on an Ogden calculation in which contingencies of a general kind are built in; for example, the contingency that the claimant may not live to retirement age. However, there must also be some discount on this figure for contingencies that are specific to the present case; for example, the possibility that the pursuer may return to some form of pensioned employment. Here again, there is no need for actuarial precision. I would again have taken a broad axe to the problem and would have assessed future pension loss at 7,500.

Services

  1. Administration of Justice Act 1982, section 8
  2. [74] The pursuer is receiving help from her husband and her mother. Counsel for the pursuer has suggested that I should assess the extent of that help at about two hours a day. I adopt that assessment, which seems to me if anything to be an underestimate. The approach to valuation that I took in Kennedy v Lees of Scotland Limited (1997 SLT 510, at 513D-514H) would be appropriate in this case. In that case I allowed the claim at the rate of 2 per hour. In this case counsel for the pursuer proposed the same figure. Counsel for the defenders said that he did not quibble with it.

    [75] On this basis I assess the help given by the pursuer's husband and her mother at about 730 hours yearly, say 1,500 yearly. I would have allocated that sum both for the past and for the future as to two-thirds to the pursuer's husband (1,000 yearly) and one-third to the pursuer's mother (500 yearly).

    [76] Services to date would therefore have yielded a total figure of 5,250 plus interest of 750, which would therefore have fallen to be allocated as to 4,000 to the pursuer's husband and 2,000 to the pursuer's mother.

    [77] In view of the contingencies affecting this case I would have accepted the suggestion of counsel for the pursuer that future services should be assessed in total at 5,000. Counsel for the defenders did not suggest any other figure. I would have divided this figure in the same proportions, that is to say 3,333 to the pursuer's husband and 1,666 to the pursuer's mother.

  3. Administration of Justice Act 1985, section 9

[78] Counsel were agreed that an appropriate figure for the pursuer's inability to render services to date would be 1000. Counsel for the defenders made no suggestion as to future loss. I would have added 500 for the future.

XII Contributory negligence

[79] On the view that I have taken in this case the question of contributory negligence does not arise.

XIII Interlocutor

[80] I shall sustain pleas 2 and 3 for the defenders and grant decree of absolvitor.