OUTER HOUSE, COURT OF SESSION [2008] CSOH 131
P239/08	OPINION OF LORD MATTHEWS in the Petition LOTHIAN & BORDERS POLICE BOARD established under the Police (Scotland) Act 1967 (as amended) and The Lothian and Borders Combined Police Area Amalgamation Scheme Order 1995 and having its headquarters at Fettes Avenue, Edinburgh for Judicial Review of a Medical Certificate under Regulation H2(3) of the Police Pensions Regulations, 1987 ________________

Petitioner: Swanston, Solicitor Advocate; Maclay Murray and Spens

Respondent: Armstrong QC; Macbeth Currie

9 September 2008

[1] This is a petition for judicial review of a medical certificate issued under Regulation H2(3) of the Police Pension Regulations 1987. The petitioners are a "police authority" in terms of the Police Pension Regulations 1987 and the respondent, Mr George Smillie was a serving police officer. On 8 August 2007, a Board of medical referees appointed under and in terms of the Regulations by the Scottish Public Pensions Agency, decided that a condition of lumbar back pain from which Mr Smillie suffered, was the result of an injury received in the execution of police duties. The petitioners seek reduction of that decision, the expenses of the application and such further order or orders as may seem just and reasonable in all the circumstances of the case.

Background
[2] The respondent joined Lothian & Borders Police as a probationary constable on 12 November 1979. He was a keen sportsman and fitness enthusiast. He attended basic training at Tulliallan Police College in 1980 and advanced training in 1981. While at Tulliallan in early 1981, he was diagnosed as suffering from an over-use injury to his knee which occurred after compulsory training exercises there. It is accepted by the petitioners that that injury was received in the execution of his duty as a constable. He wished to continue being active in sport and his knee was painful when he was so active, although it is averred by the respondent that at that time it was painful constantly and appeared swollen. The consultant orthopaedic surgeon to whom he was referred recommended surgery to reinforce the infrapatellar tendon attachment and he underwent surgery to his left knee in November 1981. Following that, he required to undergo a course of physiotherapy at Edenhall Physiotherapy Department. That physiotherapy treatment was described in 1982 as "injudicious" by Mr McQuillan, a consultant orthopaedic surgeon, and in 2001 as "over zealous" by Dr Johnston, the respondent's GP. During the period when he was receiving physiotherapy treatment, he experienced low back pain for the first time. It is averred by the respondent that the back pain was caused by the full length hip to ankle plastercast which he required to wear following surgery for a total of twelve weeks. He required to undergo further surgery on his knee in November 1982 and avers that thereafter he required to wear a full length hip to ankle plastercast for a further six weeks. Thereafter his knee healed satisfactorily. He developed sciatica and underwent further physiotherapy, which failed to relieve his condition. It is said by the petitioners that he developed this in 1983 but the respondent avers that it developed in October 1982 prior to his second operation. The consultant orthopaedic surgeon recommended rest. The respondent avers that he followed the advice given, rested and did not participate in sport although the petitioner avers that he remained active. In July 1983 he underwent a laminectomy to excise a disc protrusion and following surgery he again underwent physiotherapy. He returned to full duties in November 1983 and was absent from work from about 24 October 1985 to 8 December 1996 due to depression. He avers that he was also suffering from a recurrence of his back pain at the same site in late 1996. He responded well to therapy. While attending the police rehabilitation centre at Auchterarder in 1996, he injured his back while exercising on a rowing machine. He then returned to light duties on or about 9 December 1996. He had a further operation to re-explore and remove small amounts of disc material and bony decompressions in May 1997 and recommenced light duties in October 1997. Following back pain experience while on holiday in Florida in August 1999, he had a further operation in June 2000 to re-explore and remove small amounts of disc material and scar tissue. He avers that all of the back pain which he has ever suffered has been focused over the same site. He recommenced light duties in autumn 2000. In early 2001 his fitness for full operational duties was assessed and he avers that he was found not to be operationally fit. He also avers that before his training at Tulliallan in 1981, he had never experienced pain in or injury to his knee.

[3] In or about May 2001, the question of whether or not he was permanently disabled was referred to a qualified medical practitioner under Regulation H1 of the Regulations. The medical practitioner was a Dr D G Jones. He was asked to consider whether the respondent was disabled, if so whether such disablement was likely to be permanent and if so whether such disablement was the result of an injury received in the execution of duty. The doctor decided that he was permanently disabled but that that disablement was not the result of an injury received in the execution of duty. He certified that decision on 3 May 2001 and following that certification, the respondent was retired on grounds of ill-health with effect from 21 June 2001.

[4] In accordance with Regulation H2, the respondent gave notice to the petitioners that he was appealing against Dr Jones' decision. In terms of Regulation H2(2), the petitioners notified the Secretary of State of that appeal. Further in terms of that Regulation the Secretary of State appointed Mr Peter Scott, consultant orthopaedic surgeon as the "medical referee" to decide the appeal. The appeal was heard at Ross Hall Hospital, Glasgow on 10 June 2002 and on 26 July 2002 in terms of Regulation H2(3), the medical referee issued a medical certificate to the effect that the respondent was permanently disabled as a result of chronic back pain but that his injury was not received in the execution of duty.

[5] The respondent presented a petition for judicial review of that decision and it was reduced, Lady Paton issuing an opinion on 29 October 2005. The question whether the respondent had suffered an injury on duty was referred to a new medical referee, although on or about 1 October 2003 a system of appeals to a single medical referee was replaced by a system of appeal to a regional board. The question for determination by the Board was whether the chronic recurrent lumbar pain from which the respondent suffers was the result of an injury received in the execution of police duties.

[6] The appeal came before the Board on 8 August 2007 and they considered written and oral material as well as conducting a clinical interview and examination of the respondent. They concluded that his condition of lumbar back pain was the result of an injury received in the execution of police duties and issued a written report dated 8 August 2007. It is that decision which is the subject of this petition.

The Legislation
[7] The 1987 Regulations provide inter alia as follows:

"(a) Regulation B4
B4 - (1) This Regulation shall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as the result of an injury received without his own default in the execution of his duty ...

(2) A person to whom this Regulation applies shall be entitled to a gratuity and, in addition, to an injury pension, in both cases calculated in accordance with Part V of Schedule B ..."

(b) Regulation A12

A12 - (1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time when the question arises for decision and to that disablement being at that time likely to be permanent.

(2) ... disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be ...

(c) Regulation A13:

A13. For the purposes of these Regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death or the condition for which treatment is being received.,

(d) Regulation A11:

A11. - a reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable ...

(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if -

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding position may be satisfied and that the injury should be treated as one received as aforesaid ...

(e) Schedule A to the Regulations defines 'injury' as including "any injury or disease, whether of body or of mind"

(f) Regulation H1:

H1.-(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the police authority.

(2) Where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions -

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent;

and, if they are further considering whether to grant an injury pension, shall also refer the following questions:

(c) whether the disablement is a result of an injury received in the execution of duty, and

(d) the degree of the person's disablement ...

(4) The decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final.

(g) Regulation H2:

H2 - ... (2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within 14 days after being supplied with the certificate or such longer period as the police authority may allow, and subject to and in accordance with the provisions of Schedule H, give notice to the police authority that he appeals against the said decision, and the police authority shall notify the Secretary of State accordingly, and the Secretary of State shall appoint an independent person or persons (hereinafter in these Regulations referred to as the "medical referee") to decide the appeal.

(3) The decision of the medical referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner which he disagrees with the latter's decision, and the decision of the medical referee shall, subject to the provisions of Regulation H3, be final.

(h) Regulation L1:

L1 - (1) An award which is payable to or in respect of a person by reason of his having served as a regular policeman shall be payable by the police authority of the force in which he last served as such ..."

[8] The petitioners complain that the Board misdirected itself in law and failed to apply the correct test in terms of Regulation A11. In particular, it is said that they failed properly to consider whether the injury was directly and causally connected with the respondent's service as a police officer rather than simply with him "being" a police officer. It is said that had they applied the correct test the Board would have concluded that the injury was not received in the execution of duty within the terms of Regulation A11.

[9] It is also averred that the decision was unreasonable. Having regard to the reasons for the decision, it is said that it was not reached in a logical manner and did not give proper reasons which dealt with the substantial questions in an intelligible way. The reasons did not leave the informed reader and the court in no real and substantial doubt as to the material considerations taken into account in reaching it. Appendix 1 to the report contained reference to and excerpts from the relevant medical history for consideration by the Board and it is complained that no explanation is given as to which of these items had been considered in whole or in part and how those considerations had been taken into account in reaching the conclusion. There are a number of opinions, it is said, expressed in the material which contradict the Board's opinion and no explanation is given as to how these conflicting opinions were assessed to formulate a medical and legal basis for the Board's conclusion. The discussion which preceded the conclusions is said to be contradictory and fails reasonably to explain the conclusions reached.

[10] On the other hand, the respondent avers that the Board had proper regard to all material considerations and did not take irrelevant matters into account. They were entitled to reach the decision which they did and their report comprised relevant and intelligible reasons which were proper and adequate. Esto there was a lack of exposition of their reasoning, the petitioners have not been substantially prejudiced thereby.

[11] When the case called before me, the petitioners were represented by Ms Swanston, Solicitor Advocate and the respondent by Mr Armstrong, Q.C..

Submissions for Petitioners
[12] In looking at the reasonableness of the Board's decision, Ms Swanston indicated that she had three main criticisms. The first was the way the Board dealt with the "eggshell skull principle" and the way they dealt with Dr Scott's report. The second was the way they dealt with causation and the third was the way they dealt with the facts. In presenting her submission, she indicated that she would have to go through all the productions.

[13] Lastly, it was her intention to look at the issue of the correct legal test.

[14] In support of her submissions that the decision was unreasonable, she referred me to paragraph 11 of the petition, the effect of which I have summarised above. She referred me to the well known case of Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 345 and in particular to the opinion of Lord President Emslie at pages 347-348 as follows:

"A decision of the Secretary of State, acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular, it will be ultra vires if it is based upon a material error of law going to the route of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fail to be quashed if it, or any condition imposed in relation to a grant of planning permission, is so unreasonable that no reasonable Secretary of State could have reached or imposed it. These propositions, and others which are not of relevance for the purposes of these appeals, are, it appears to me, amply vouched by many decided cases"

and his Lordship thereafter referred to a number of authorities.

[15] Ms Swanston submitted that Lord President Emslie had identified five considerations.

[16] She submitted that at page 356 Lord Cameron identified two further considerations when he said the following:

"In giving his decision the Secretary of State is required by the relevant rules to give his reasons for that decision; if he fails to do so or if his reasons are not intelligible to the mind of an informed reader then his decision will be quashed. If the letter is so obscure and would leave in the mind of an informed reader such real and substantial doubt as to the reasons for his decision and as to the matters which he did or did not take into account, it does not comply with the requirements of r.11(1) and therefore on that ground the minister's order must be quashed. The matter was put thus by Megaw J in the case of Givaudan & Co Ltd v Minister of Housing and Local Government at p.258 in words which I would respectfully adopt."

[17] In fact Lord President Emslie had also referred to these considerations at p.348.

[18] Ms Swanston then referred me to a case of Associated Picture Houses v Wednesbury Corporations [1948] 1 K.B. 223. At page 229, Lord Greene M.R. said the following:

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, then maybe something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Shott v Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair."

At pages 233 and 234 he said the following:

"In the result, this appeal must be dismissed. I do not wish to repeat myself but I will summarise once again the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but at a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."

[19] She submitted that of more relevance perhaps was the case of Strathclyde Joint Police Board v McKinlay 2005 S.L.T. 764, a decision of Lord Reed sitting in the Outer House. She drew my attention to paragraph 50 thereof which is in the following terms:

"[50] It appears therefore that, at a general level, the issues arising on an appeal under Reg. H2(2) will include questions of medical diagnosis and prognosis, but may also include questions of fact of a non-medical nature, and questions of law. In the present case, the critical questions which the medical referee had to determine were whether the respondent's admitted disablement was the result of an injury received in the execution of duty, and whether the disablement was likely to be permanent. The decision on the first question depended in part upon the correct diagnostic inference to be drawn from the respondent's symptoms and history, so as to identify the 'injury' which she had suffered; in part, upon the correct inference to be drawn as to the aetiology, in the light of medical knowledge as to the aetiology of such injuries and factual knowledge of the respondent's history, so as to determine whether the injury had been "received in the execution of duty"; and in part, upon an accurate understanding of the meaning of the question (e.g. as to the meaning of the words 'received in the execution of duty' and as to the appropriate test of causation). The decision on the second question depended in part upon the correct prognostic inference to be drawn, in the light of knowledge of the progress of conditions of this kind, and in part upon an accurate understanding of the meaning of the question (e.g. as to the meaning of the word "permanent"). Leaving aside the medical referee's understanding of the meaning of the questions, as to which no issue has been taken in these proceedings, his decision thus depended essentially upon establishing the respondent's symptoms, establishing her history and applying expert medical knowledge in order to arrive at an opinion as to diagnosis, aetiology and prognosis. Taking a history from a patient is of course a routine aspect of medical practice, in which medical practitioners receive training and acquire experience, but it does not itself depend on expert medical knowledge; and it was the respondent's true history (in particular, whether she had been treated by other officers as she claimed) which was the main point of contention in the statement submitted to the medical referee."

[20] Ms Swanston submitted that what Lord Reed had set out as to the concerns to be addressed were correctly set out. One had to look at the history, the aetiology and the prognosis. She then referred me to paragraph 54 which is to the following effect:

"[54] The principles of fairness which are germane to these proceedings can in my view be reduced to the two that were referred to by Diplock L.J. (in a judgment to which the present discussion is indebted) in R v Deputy Industrial Injuries Commissioner ex P. Moore, at [1965] 1 Q.B., pp.488-490, and by the Privy Council (in a judgment delivered by Lord Diplock) in Mahon v Air New Zealand Ltd at [1984] A.C., p.820: cases dealing with the exercise of different forms of investigative jurisdiction. First, the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value. Secondly, he must give fair consideration to any contentions of other relevant material submitted by the parties to the proceedings. I cannot see any breach of those principles in the present case."

[21] Again Ms Swanston submitted that this was a correct statement of the law.

[22] She then referred me to the statutory framework which I have already set out.

[23] She submitted that Regulation A11 was somewhat circuitous. However, she conceded that the knee injury which the respondent suffered while in training at Tulliallan was suffered by him in the execution of his duty as a constable.

[24] There was, however, an issue as to whether the knee injury was the cause of the later disability. The petitioner's position was that whatever was wrong with him now was nothing to do with the knee injury.

[25] With that preamble, Ms Swanston turned to the documents in this case.

[26] 6(1) of process was the certificate of permanent disablement signed by Dr Jones which certified that the respondent was disabled from performing the ordinary duties of a member of the police force, that the disablement was likely to be permanent but that it was not the result of any injury received in the execution of duty. That was appealed to a medical referee and the certificate of that referee, dated 26 July 2002, is No. 6/2 of process. The appeal was unsuccessful.

[27] As I have indicated, that certificate was a subject of a successful petition for judicial review and the matter was referred to the Board of Medical Referees, whose report, dated 8 August 2007, is No. 6/3 of process.

[28] I was referred to the case of The Queen on the application of the Metropolitan Police Authority v Medical Referee (Mr B E Okafor) [2002] E.W.H.C. 2389 Admin.

[29] This was an application to quash a decision made by a medical referee, Mr Okafor. He had been asked to decide whether or not the interested party was permanently disabled because of chronic low back pain and whether that condition was the result of an injury received in the execution of his duty. He found in favour of the interested party, Mr Waldron, on both those points.

[30] It appears that Mr Okafor examined the officer but all of the medical reports ran counter to his findings.

[31] He suffered very serious injuries as the result of an attack on him in 1974 in the course of his duties. However, he suffered a back injury following the collapse of a sun lounger in 1996 and all of the medical opinion was to the effect that his chronic low back pain resulted from that. In granting the application, Hooper J. said the following at paragraph 19 onwards:

"Against that background, how was it, one may ask, that Mr Okafor right at the outset of his report attributes the chronic low back pain to the 1974 attack? There was, in my judgement, nothing in the documentary material placed before him which could have supported such a conclusion. ... If, against the background of all the material to which I have referred, Mr Okafor was going to attribute the chronic lower back pain so directly to the 1974 incident, that called for a full explanation for him. In those circumstances, it seems to me that this application must necessarily succeed."

[32] Ms Swanston submitted that Hooper J.'s approach was correct and that if doctors on the Board disagreed with medical opinions, it was incumbent on them to say why.

[33] The summary of the Board's decision was as follows:

"After a full consideration of the Appellant's case, which included a review of all the written information submitted, a full clinical (orthopaedic) assessment and detailed cross-questioning during the Hearing itself, the Board concluded that his lumbar back pain is the result of an injury received in the execution of Police duties. The appeal is, therefore, upheld."

It was made plain in the summary that it was to be read in conjunction with the attached report. The introduction to the report indicated that the medical appeal process comprised:

"1.1 Perusal of requested medical records.

1.2 Perusal of written submissions from the parties involved.

1.3 Consideration of submissions, statements and answers to specific questions from the Board made during the hearing.

1.4 Review of relevant medical fitness standards and scientific literature as appropriate.

1.5 Clinical interview and examination of the Appellant on 8 August 2007.

1.6 Discussion by the Board members."

The report went on as follows

"The following documentation was available to the Board for perusal prior to the Appeal Hearing:

2.1 Referral documents from the SPPA.

2.2 Appellant's Occupational Health (OH) record.

2.3 Appellant's General Practitioner (GP) record.

2.4 Submission from Ian Smith Watson Solicitors (31.7.07) and response to submissions lodged by Lothian & Borders Police (faxed 31.7.07).

2.5 Submission Lothian & Borders Police 17.7.07.

During the declaration of documents Mr Ian Smith Watson raised a concern with respect to the inclusion of Dr Scott's report in the Lothian & Borders Police submission. The objection was on the grounds that this hearing was being heard de novo. After discussion it was agreed that the clinical content of Dr Scott's examination would be regarded as admissible but that no weight would be given to any aspect of his report or his opinion."

Dr Scott's opinion was the one which was the subject of a successful attack in the previous petition for judicial review. Ms Swanston submitted that the manner in which the Board dealt with Dr Scott's opinion was relevant. He was the only person who said that there was an asymptomatic pre-existing degenerative condition. She agreed that the Board should have disregarded his opinion but submitted that they did not. Mr Russell, another medical practitioner, said that the reason for the back pain was that the respondent said that he had been in plaster which had put strain on the lumbar back. Dr Scott said that the strain on the lumbar back could not have affected a healthy back and concluded that there was an asymptomatic degenerative condition. That was the first time that that had been mentioned. She criticised the Board because they took that into account. It was only relevant if there was a degenerative condition. She accepted that one had to take one's victim as one found him. If he had a degenerative condition and what had happened to him had caused back pain then the principle was relevant. If Dr Scott's opinion was disregarded where did it come from? The Board had not fully explained all that in an intelligible way and they ought to have done.

[34] Having said all this Ms Swanson later retracted her submission in part since, in his evidence before the Board, Dr Jones opined that it was highly likely that the lumbar spine was already beginning to develop pre-existing degenerative changes by the time the respondent's left knee was placed in plaster of Paris.

[35] She made this concession having read the report of proceedings.

[36] That indicated in summary that the respondent gave a description of his current symptoms and his solicitor drew attention to a report from a Dr Cypart (sic) dated 13 September 2002 in which the respondent was described as suffering from classical sciatica experienced whilst undergoing physiotherapy for his original left knee injury. (In fact the doctor's name is Sypert). He submitted that there was a direct causal link between the knee injury incurred at the training college and the subsequent development of his disabling lumbar spine condition. Reference was also made to Mr Russell's report in which reference was made to a direct link between being encased in a full length plaster of Paris splint to the left leg and the subsequent strain placed upon the lumbar spine. It was said that it was entirely possible that during this period of time when abnormal locomotion and thereby abnormal movements of the lumbar spine had to be undertaken by the respondent that damage to a lumbar disc was caused.

[37] Dr Jones gave evidence in which he said, as I have indicated, that it was highly likely that the lumbar spine was already beginning to develop pre-existing degenerative changes by the time the respondent's left knee was placed in plaster of Paris. To this extent he agreed with the report from Dr Sypert. He went on to say that if he were to accept that the police duties contributed to the respondent's back problem he would have to assess to what extent such activities had contributed. He would have to be satisfied that the contribution was substantial. He said that, in the event, the respondent made a full recovery from his injuries and had 14 trouble-free years as a police officer without back problems until he had sustained two significant injuries in 1997 and subsequently 2000. His opinion was that without these two injuries the respondent could have continued as a police officer. In summary, even if the knee injury was an injury on duty, it was the events of 1997 and 2000 which had substantially contributed to the respondent's lower back condition and his subsequent retirement and not the knee problem.

[38] The respondent's solicitor drew the Board's attention to the "eggshell skull principle" and submitted that even if the respondent's lumbar discs were already degenerating that did not matter. It was his submission that, though the respondent may have had pre-existing degenerative changes of the back, he would have remained asymptomatic if he had not been involved in the accident of 1982 which led to his knee problems.

[39] A clinical examination was thereafter undertaken by Mr Vanhegan, a member of the Board, and the chairman and second Board member were also present, as was Dr Jones. After the examination the respondent described in more detail how he incurred his knee injury and indicated that following surgery the knee was maintained in full extension in a plaster of Paris cylinder from ankle to thigh and the ankle was thus immobilised for a total of 18 weeks. On his surgeon's instructions he was not allowed to bear weight and was issued with crutches. He said that his first episode of back pain was whilst undergoing physiotherapy in Edinburgh. He had recently come out of the long leg plaster of Paris and whilst having physiotherapy he experienced discomfort like a tweaked hamstring. This did not resolve and he was referred to the orthopaedic surgeon Mr McQuillan.

[40] Dr Jones indicated that his conclusion was that the degenerative low back condition was not due to service and he made his decision accordingly.

[41] The solicitor submitted that this was an injury on duty. The respondent suffered a knee injury during the course of his duty as a result of which he developed secondary back problems which led to his retirement from active police duties. There was therefore a clear link established. He referred to a report from the Department of Work and Pensions dated 21 May 2002 in which it was clearly stated that the loss of faculty (reduced and painful movements of the left knee and reduced and painful back movements) were the result of an industrial accident on 25 February 1981.

[42] The report contained full details of the medical examination. According to the report the relevant clinical information was that having reviewed all medical records and questioned the respondent the Board established that he had not had back pain before the problems with his left knee. Following his first operation on the left knee the physiotherapist reported pain and spasm in the right hamstring muscles consistent with referred pain from the back which led to an MRI scan that showed a prolapsed L5/S1 disc pressing on the right S1 nerve root. The onset of symptoms had a temporal relationship to the knee injury and the Board did not establish any other reason for him developing the disc protrusion. It was accepted that the L5/S1 disc might have been degenerate at the time of the left knee surgery. The predominant features in the history were that he had three 6 week periods of immobilisation with a long leg conventional heavy plaster of Paris cylinder cast from high up in the left thigh to the ankle, non-weight bearing on each occasion using crutches. During these periods there was not only abnormal strain on the low back but lack of normal mobility would have resulted in loss of core stability and support for the lumbar spine predisposing to the disc problem. The Board had no way of knowing whether he would have suffered a prolapsed disc in any event but were satisfied that the problems experienced by the respondent reasonably flowed from the injury at work.

[43] It is said that it was not true that following his first back operation he was totally pain free until the second exploration because there were references to ongoing back problems in the GP records, particularly the entry in August 1989 that in 1983 he had had a partial discectomy at L5/S1, that is not all the disc material had been removed. At this date in August 1989 absence of the right ankle jerk was noted. He was sent for x-ray and physiotherapy. In September 1989 "right sciatica" was noted and subsequently it was noted that he felt his back had improved and he was desperate to return to work. In October 1989 there was a further note as follows "Recurrence of back pain. Gradually worse when exercises and then worse after helping lift an 18 st. man" and he was advised to curtail sporting activities of running and cycling.

[44] The Board established that recurrences of back pain occurred on two occasions turning over in bed rather than secondary to further particular injury. That led to the conclusion that he had an on-going substandard back from the time of his first left knee surgery.

[45] The ongoing complaints were that there was always some discomfort associated with the low back radiating to the right buttock but not sufficient to need medication.

[46] There then followed a report of the examination proper followed by the Board's conclusions as follows:

"The examination was essentially normal but shows evidence of a previous right S1 nerve root compression with permanent absence of the right ankle jerk. He has got tolerable discomfort in his back and is not limited in day to day activities. It is noted that surgical findings were principally of scarring at the site of previous surgery with residual disc material extruding. This is often fibrous tissue resulting from bleeding into the disc space after initial surgery. It is no longer standard practice to scrape out all disc material as this can lead to 'disciitis' which can give rise to intractable pain from an intervertebral disc space. It also accelerates collapse of the disc space at that level. The standard practice is to remove only the prolapsed disc and any other material liable to prolapse further. There is therefore a significant incidence of about 10% of recurrent disc problems after initial surgery, which accounts for the ongoing problems that the Appellant has experienced, i.e. his long-term back problems from a sub-standard back symptomatic on and off since his initial back problem. He cannot be considered to have recovered completely at any time after that first operation in the interim up to the time of leaving the police service."

[47] The report thereafter narrates the Board's discussion as follows:

"1. The material facts of the case before the Board were that the Appellant suffered a left knee injury in February 1981 and that this was incurred during the execution of Police duties (at Training College).

2. Secondly, during the recovery period from this injury (and whilst receiving physiotherapy) the Appellant began to complain of low back pain.

3. The question before the Board was to consider whether there was sufficient evidence to ascribe a significant causal link between the knee injury and his subsequent development of back problems.

4. In its deliberations the Board noted several key features:

- after the initial onset of back pain, the Appellant was never entirely symptom free and the medical records contained evidence of other episodes of pain in 1984 and 1989.

- The Appellant underwent the operation of discectomy in 1995 following which he was never fully operational.

- At this initial operation he underwent the procedure of full discectomy. The orthopaedic records indicate that at his second and third operative procedures small amounts of disc material and scar tissue were removed.

- The episodes of increased back pain in 1997 and 2000 were spontaneous events involving minimal trauma. The Appellant made a reasonable recovery from each event although it is noted that he was left with a sensory S1 dermatome deficit on the right hand side as well as a permanently absent right ankle reflex.

- The Board's opinion was that this was a unifocal lesion in a spine which, until 1981, had not caused the Appellant any symptoms. Furthermore, there was no constitutional abnormality which would lean one to regard the Appellant as at greater risk of developing degenerative disc disease (above the background population) and other discs in the lumber spine were noted to be healthy.

- In the Board's opinion, therefore, the Appellant's recurrent back problems flowed from the original incident. The Board, at this distance in time, is unable to state the exact nature of the original mechanism of back injury but postulate that decreased core stability, immobility, and abnormalities of gait consequent upon immobilisation for 18 weeks in a plaster of Paris leg cast were the cause of significant loading on the low back to induce the initial disc lesion.

5. On balance of probability, therefore, and taking the 'eggshell skull principle' into account, the Board finds in the Appellant's favour and its opinion is that the Appellant's condition of lumbar back pain is the result of an injury received in the execution of Police duties.

5. The Appeal is therefore upheld."

I need not refer to the Board's conclusions, which were merely a summary of the decision reached. Appendix 1 in the report listed certain medical and occupational health records along with a number of extracts therefrom.

[48] Ms Swanson submitted that it was confusing that the records were not listed in chronological order and also that the Board did not start at the beginning. The first GP record referred to was dated 2 June 1983, the Board saying that that was the first entry which was legible and which related to the respondent's back. She submitted that there were earlier records which related to the knee and therefore the Board had used an artificial starting point. They should have said something about the earlier records because it was the treatment of the knee injuries which they said they were looking at for the causative link. That was a material consideration. They should have started by looking at No. 6/4, a letter from Mr McQuillan dated 21 October 1981. That indicated that the respondent had been having recurring problems with his knee. He was a fitness fanatic and when he cut back in his training, physiotherapy etc, that caused his knee to settle for a short time, but immediately he tried to become active it bothered him again. Reference was made to the condition of his knee and a diagnosis of High Jumper's knee was made. That was always an over-use injury and affected the infra-patellar tendon attachment. Reference was made to the sort of treatment which might assist. It was said that if he were put in plaster for 6 weeks the symptoms would recur after 2 or 3 weeks when he came out of it. A reconstruction was proposed.

[49] No. 6/5 was an operation note dated 12 November 1981 relating to an operation to reinforce the infra-patellar tendon attachment. The aftercare was said to be elevation and static quadriceps when his symptoms had settled. He was to be up non-weight bearing with crutches.

[50] No. 6/6 was a follow-up letter dated 8 December 1981 and read as follows:

"Further to my earlier notes, I saw this man today and removed his plaster. What he has been doing with himself in the last 3 weeks I hesitate to think. His Quadricep muscle has virtually disappeared, his whole leg is inco-ordinate and really a terrible mess. This is very disappointing in as much as I went over in great detail with him what he should do and obviously he has failed to do this. He will need a lot of work done on his leg now to get a decent result but I have been in touch with the Edenhall physiotherapy department and they will take him on and try to bring his leg back to life. I will see him again in a fortnight."

[51] No. 6/7 was another letter from Mr McQuillan dated 12 May 1982. This said inter alia:

"I saw this chap again today. He really is a problem. I may have misjudged him in the past but there is no doubt that his knee is not right. ... I think it is reasonable to give him a small dose of Prednisolone for one week only. ... It would probably be sensible to give him one week of oral penicillin also. Should these measures not work, then I think we will have little alternative but to put him in plaster for a few weeks."

No. 6/8 was a further letter from Mr McQuillan dated 22 September 1982. It reads as follows:

"Further to earlier notes, this man made a further appointment to see me. His knee was all right for a while but it has gradually deteriorated until he is now back to his pre-operative symptomatology. I had his knee x-rayed and this shows new bone formation down the centre of the re-attachment. This almost certainly represents avulsion of the new tendon attachment which I created and unquestionably it relates to the injudicious use of excessive weights in Edenhall Hospital to which I referred in my earlier letters and which unfortunately has proved to be extremely detrimental to his knee. I think we have no alternative but to revise the procedure and I will try and get him in as soon as I can."

[52] Ms Swanson drew my attention to the use of the word "injudicious".

[53] The previous letter indicated that the respondent wished to resume activities but if he did that he had a problem. When he indulged in any activity at all such as golf the knee began to heat up and burned quite significantly.

[54] No. 6/9 was a letter dated 29 November 1982 indicating that the respondent was admitted to hospital for exploration of his left patella tendon. Some fibrous tissue and ischaemic bone were found at the interface of the tendon and bone. This was excised. He made a good post-operative recovery and was discharged.

[55] No. 6/10 was an occupational health record dated 9 February 1983 but nothing turns on that and the same is true of No. 6/11.

[56] No. 6/12 was a further letter from Mr McQuillan dated 17 March 1983. This reads, inter alia, as follows:

"Further to our earlier notes this man's left knee has healed satisfactorily. There is now no heat and he can do a lot of work to improve his quadriceps for practising purposes. He has at last got a satisfactory result. Today he tells me that he has been having treatment from the physiotherapist for his right hamstrings which have been troubling him since October, although this is (the) first time we have ever heard of it. Physiotherapy is clearly making no difference ..."

[57] Ms Swanston drew my attention to the suggestion in that letter that the knee had healed by then.

[58] No. 6/13 was a further occupational health note dated 14 April 1983 which indicated that he had developed a further complication and a consultant's opinion was being sought.

[59] No. 6/14 was a letter from Mr McQuillan dated 21 June 1983 and was in fact referred to by the Board. It indicated that the present complaint was of pain in the region of the right thigh which the respondent initially regarded as a pulled hamstring. This had been bothering him on and off and he had now got to the stage where he had difficulty in getting on shoes. If he sat and tried to get up he had difficulty and quite clearly he was suffering from nerve root irritation. Clinically he had a lot of spasm in his back with a sciatic scoliosis. His straight leg raising was limited to 45 degrees on the right leg. Plain x-rays were essentially normal and Mr McQuillan had little doubt that he had sciatica almost certainly due to a disc prolapse which had not responded to fairly considerable physiotherapy which he had been having in the Royal where he attended for his knee and then mentioned his back to them and they had been treating him there for some time but with no substantial improvement.

[60] No. 6/15 was a letter dated 5 July 1983 which was also in the Appendix. It is in the following terms:

"Further to my earlier letter, I saw this chap again today. He tells me that he went to bed for three days and his symptoms remitted completely. Since then he has been up and about because he was too bored lying in bed and in consequence his symptoms have returned although not so severely although as they were when I saw him last.

Today he has once again got back a sciatic scoliosis and he had limitation of straight leg raising without neurological signs - the limitation being at about 70 degrees. He is therefore better than he was the last time I saw him, but clearly was very much better than this until he took it upon himself to get up and run about too soon. I have told him that if he is patient this should recover, as will most of these disc lesions, but if he is silly he will probably talk himself into another operation."

[61] An extract from that letter appeared in the Appendix but it did not refer to the patient's getting up and running about too soon or talking himself into another operation if he was silly. Ms Swanston submitted that it was dangerous for the Board to extract from the document. It was one thing for the Board to list documents and another to replicate them but to extract from them was a flaw. The reader would not know if the whole letter was considered or just the part which was extracted. If they were merely listed then one could assume that the whole document was looked at. It appeared that the part which was not listed did not form part of the Board's consideration.

[62] Ms Swanston conceded that there was no evidence that the respondent had been "silly" but she reminded me that he did have another operation.

[63] No. 6/16 was a letter from Mr McQuillan dated 20 July 1983. The Appendix listed the physical signs referred to in that letter but did not refer to the part of it which indicated that the respondent had tried to remain in bed but found it very difficult to do so.

[64] Ms Swanston submitted that when he did rest in bed his symptoms settled and the Board should have considered the question of his getting up. The Board did not tell us what impact his wish to remain active would have had on his treatment.

[65] No. 6/17 was another operation note dated 25 July 1983. This operation was on the lumbar spine. It is referred to in the Appendix.

[66] No. 6/18 was a report to the GP following the operation. No. 6/19 was another occupational health unit report dated 11 August 1983 and No. 6/20 was a further such note dated 7 September 1983.

[67] No. 6/21 was a letter from Mr McQuillan dated 7 September 1983 in the following terms:

"I saw this chap again today. He is certainly better than he was pre-operatively, but he still has some physical signs although these are fairly minimal. His back is much better with very little spasm. His straight leg raising, however, is restricted at 75 degrees with persistent right sciatica. He has persistent hypo-aesthesia at S1 consistent with the interference to the nerve root. Generally, he is very much better than he was but he is clearly not yet right and is not ready to go back to the police.

I think we should now enlist the help of the physiotherapy department at Edenhall as I am fairly confident that some decent physiotherapy should get rid of his residual symptom complex. The nerve, as you will see from the operation note, was extremely tight and adherent consistent with him having had trouble for nearly a year and under these circumstances recovery is always slower than if one gets out disc material at an earlier stage. He should, however, do perfectly well with some physio and I have made the necessary arrangements."

That letter was excerpted in the Appendix as follows:

"Is certainly better than he was pre-operatively but he still has some physical signs although these are fairly minimal. His back is much better with very little spasm. His straight leg raising however is restricted to 75 degrees with persistent right sciatica. He has persistent hypoaesthesia at S1. For physiotherapy."

Ms Swanston criticised this excerpt because it left out the observation that he was very much better and that he would do well with physiotherapy. While the words "for physiotherapy" were used, the letter was more positive than the excerpt. Summarising was dangerous and the same question arose as was asked previously namely, had the Board ignored the positive message. What had they done with it?

[68] No. 6/22 was a letter dated 27 September 1983 from Mr McQuillan indicating that the respondent had improved considerably. He now had forward flexion so that his hands reached within two inches of the floor without a sciatic scoliosis. His straight leg raising was more than 80 degrees and he had few symptoms. The extract fairly reflected these observations but did not mention the next sentence which was as follows: "He is clearly well on the way." Ms Swanston complained about this because the reference to "improving considerably" did not have the same effect. The position was not accurately reflected in the excerpt.

[69] No. 6/23 was an occupational health unit note of 2 November 1983 indicating that he was fit to return to full duty as from 8 November 1983.

[70] Ms Swanston submitted that there were references in the report to the fact that the Board did not consider the respondent to have recovered fully from his symptoms at any point after the knee injury. They could not come to that conclusion without indicating what they made of this entry.

[71] I pause to observe, however, that a return to duty does not mean that he is totally pain or symptom free.

[72] No. 6/24 was an injury report relating to an incident on 17 December 1983 which resulted in absence from work and No. 6/25 was a follow on letter indicating that he had made an excellent recovery. No. 6/26 was a set of clinical notes indicating a report of sciatica in May 1984. He was advised to rest for a week. That is referred to in the Appendix, as is the later note that he was improving slowly. No. 6/27 was a further set of clinical notes. A reference was made to an entry of 7 October 1989 indicating a recurrence of back pain which got gradually worse when exercising and then worse after helping lift an 18 stone man.

[73] No. 6/28 was a letter from the Eastern General Hospital dated 14 December 1989 indicating that the patient was referred for treatment of sciatica on 27 October and had responded to lumbar traction. He now had full pain free flexion and extension of his lumbar spine. He had been shown some back exercises to prevent future problems occurring. That letter does not appear to be referred to in the Appendix.

[74] No. 6/29 is a set of clinical notes. The relevant entry is on 9 February 1995 and relates to sciatica and backache. It is referred to in the Appendix but Ms Swanston submitted that there was a considerable gap between that entry and the previous notes of pain.

[75] No. 6/30 was a temporary medical record card which was somewhat difficult to read but which appeared to indicate back pain and right sciatica on 5 November 1996. That note is referred to in the Appendix.

[76] No. 6/31 was a letter from a chartered clinical psychologist dated 20 November 1996. Amongst other things, this indicated that at a meeting on 15 October, the respondent had appeared ready to go back to work and was going to suggest this when he returned to occupational health. However, when the psychologist saw him on 19 November, he had developed a problem with his back. This had occurred three weeks previously and seemed to have been related to an impulse to test his fitness on a rowing machine three weeks prior to that when he was at a police rehabilitation establishment in Auchterarder. He told the psychologist that the back pain was very severe and that he was now on a number of tablets which were successfully reducing it.

[77] Thus far, the letter was referred to in the Appendix. The letter went on to indicate certain emotional difficulties.

[78] No. 6/32 was an occupational health note dated 20 November 1996. This referred to the incident where he injured his back at Auchterarder on a rowing machine while trying to make himself physically fit. It went on to indicate that he was physically incapable of returning to work and was being investigated in hospital for the amount of damage he had done. This was very unfortunate, as he had got himself into a position to be returning to work the following week. However, the physician thought that it was a temporary setback and he was making arrangements for the patient to be seen in two months time.

[79] Ms Swanston submitted that the accident with the rowing machine was not adequately dealt with in the Board's report and was not referred to at all.

[80] That is not in fact the case as it is referred to in the excerpt to which I have just referred.

[81] Nonetheless, she submitted that one would have expected some commentary about it. The reference to its happening was not enough. How was it dealt with by the Board? It was highly relevant to his subsequent condition.

[82] No. 6/33 was an occupational health note dated 28 November 1996. The respondent was felt to be able to return to light duties. This is referred to in the Appendix.

[83] No. 6/34 is referred to in the Appendix and relates to back pain on 30 October 1996 and a probable prolapsed disc with right-sided sciatica on 21 November 1996.

[84] No. 6/35 was a report of an MRI examination of the lumbar spine following an examination on 12 December 1996. It is referred to in the Appendix. It appeared that at L5/S1, there was a large soft tissue prolapse which was central lateral and was displacing the right S1 nerve route posteriorly. Minor degenerative changes were noted at L4/5 with hypertrophy of the facet joints. The opinion of the examiner was that the appearances were those of a large L5/S1 disc protrusion compressing the right S1 nerve route. Ms Swanston said that this was significant. It was an indication of degenerative changes at L4/5 but not at L5/S1, the disc which was operated on. While there might be evidence for degenerative changes at another disc, it did not relate to the one operated on.

[85] No. 6/36 was a request for an outpatient consultation dated 3 January 1997. It indicated that the officer had a large L5/S1 disc prolapse as confirmed on the MRI scan. It was said that he had a history of having had sciatica in 1983 which required laminectomy and removal of prolapsed intervertebral disc, L5/S1 by Mr McQuillan. He presented again with sciatica in October and although the degree of pain had improved quite considerably from presentation, he continued to have hypoaesthesia in the sole of the right foot and loss of the right ankle jerk. His straight leg raise when last tested was limited at about 30 degrees. An opinion was sought as to whether any further operative intervention was likely to be indicated.

[86] No. 6/37 was a letter from the Occupational Health Service of Lothian and Borders Police dated 12 February 1997. That indicated that he had been on light duties since 9 December 1996. That was generally working very well, he was having no difficulty with getting in and out of work and he was finding his return to duties extremely congenial. Unfortunately the respondent had hurt his back during the course of his convalescence and had an orthopaedic appointment in the next few weeks. This is excerpted in the Appendix.

[87] No. 6/38 was a letter from the Consultant Neurosurgeon dated 19 March 1997. It indicated that the respondent had had a very good 14 years since his last disc surgery at L5/S1 carried out by Mr McQuillan. His present problem indicated again a right S1 root problem and MRI confirmed that with a large right sided L5/S1 disc prolapse. The risks of a second operation were explained to Mr Smillie but he accepted that in order to get back to full duties he had to have it and he was put on the waiting list. This is referred to in the Appendix.

[88] No. 6/39 was a discharge letter following an exploratory operation on 28 May 1997. It indicated that he had made a good post-operative recovery.

[89] No. 6/40 was a discharge summary dated 9 June 1997 which read, inter alia, as follows:

"This 39 year old policeman who had a previous discectomy in 1983 re-presented with back pain, right leg pain, and numbness over the lateral border of his right leg and foot and had an MRI scan demonstrating a right sided L5/S1 disc prolapse compressing the right S1 nerve root. He was admitted electively and underwent re-exploration with findings of a combination of L5/S1 disc protrusion and calcified scar tissue compressing the S1 nerve root. This was decompressed and post-operatively he made good progress, mobilising well around the ward and able to be discharged on third post-operative day with arrangements for follow-up in six weeks time". This is referred to in the Appendix.

[90] No. 6/41 was an Occupational Health Service letter dated 23 July 1997 indicating that he was improving steadily with regard to his mobility since the recent back surgery but he remained unfit. It is referred to in the Appendix.

[91] No. 6/42 was a letter from the Superintendent Physiotherapist at Edenhall, dated 28 July 1997, indicating that he was progressively improving and that the physiotherapist felt that he was confident to continue with a home exercise programme. It is referred to briefly in the Appendix.

[92] No. 6/43 was a letter from a specialist registrar at the Department of Clinical Neurosciences at the Western General Hospital dated 30 July 1997. It indicated that the patient was quite pleased with the results of the re-exploration of the right L5/S1 discectomy and decompression. His leg pain had completely subsided and the only complaint he had was of numbness in the outer border of his right leg. On examination straight leg raising was unrestricted in both legs and power was normal in both lower limbs. He had an absent right ankle reflex and reduced sensation over the S1 distribution on the right. He was generally very pleased with his progress.

[93] That letter is referred to in the Appendix .

[94] No. 6/44 was a letter from the Occupational Health Service dated 24 September 1997 indicating that the officer felt that he was making continued further improvement regarding his mobility and he was thought to be fit to re-engage with light duties in a staged manner. It is referred to in the Appendix.

[95] No. 6/46 was a set of clinical notes which was somewhat difficult to read. There appear to have been a review on 27 April 1998 and it appeared that the patient was working full time on light duties. He reported to be coping well with this. He had managed to play some golf although there did appear to be a report of some problem in the right leg.

[96] No. 6/47 was a report from the Occupational Health Service dated 28 April 1998 indicating that he was working a full day on light duties. It is referred to in the Appendix.

[97] No. 6/48 was a report from the Occupational Health Service dated 24 June 1998 indicating that he had been carrying out full duties for a number of weeks and was fit to continue. It is also referred to in the Appendix.

[98] No. 6/49 was an MRI scan report following an examination on 3 March 2000. It is referred to in the Appendix. It indicated that there was an apparent recurrent disc prolapse at the L5/S1 level with central and right paracentral mass effect, and right epidural and anterior enhancement featuring. The remaining disc levels were normal and the spinal canal appeared adequate. The imaging features were in favour of recurrent disc prolapse with superimposed fibrosis.

[99] No. 6/50 was a set of handwritten notes. The entry from 13 January 2000 indicated severe right sided sciatica since 6 o'clock that morning. The note is referred to in the Appendix.

[100] No. 6/51 was a discharge summary from a BUPA hospital at Murrayfield dated 8 October 1998. The clinical diagnosis referred to was a "disc derangement lumbar spine" and certain treatment was given. The document indicated that he was progressing well on discharge and was to attend the Police Rehabilitation Centre.

[101] No. 6/52 was a request for an outpatient consultation dated 19 January 2000. It indicated that the officer had had two operations for discectomy in 1983 and 1997. He presented on 13 January 2000 with the worst episode of pain he had ever experienced which came when he tried to get out of bed in the morning. He was totally immobilised by the pain for 2 to 3 days but was now beginning to move. An opinion was requested. The episode giving rise to this appears to be referred to in the Appendix in an entry relating to 13 January 2000.

[102] No. 6/53 was a letter from the patient's GP dated 13 March 2000 asking for the referral to be expedited. The respondent was unable to work and continued to need high levels of analgesia.

[103] No. 6/54 was a medical report from Dr Ian Johnston, the respondent's GP, addressed to Dr D G Jones, the Consultant Occupational Health Physician with Lothian and Borders Police, dated 12 April 2000, though it must in fact be 12 April 2001.

[104] The letter reads as follows:

"Thank you for your request for a medical report on the above police officer. I can confirm that he developed knee pain whilst attending Police College in January 1981. This was diagnosed by Mr Bill McQuillan, the Consultant Orthopaedic Surgeon as High Jumper's knee at that time. He comments that this is an overuse injury and affects the infrapatellar tendon attachment. He then carried out an operative reinforcement of the infrapatellar tendon attachment of George Smillie's left knee in November 1981 and post-operative a plaster of Paris cylinder was applied. He was asked to be non-weight bearing and supplied with crutches at that time. I can confirm that up until this date George Smillie had no problems with his back. I enclose photocopies of the relevant hospital records at the time and as you can see it appears that his post-operative period was hampered by inappropriately vigorous physiotherapy. The knee was reopened for further examination in November 1982. He was then seen by Mr McQuillan for final review in March 1983 when the left knee was said to have healed satisfactorily. There is a mention in this letter that he was having physiotherapy treatment for his right hamstrings, which had been troubling him since the previous October. He was then referred back to see Mr McQuillan in June the following year because of pain in the region of the right thigh, which had been initially regarded as a pulled hamstring but in fact which was diagnosed as a right sided sciatica. The letter dated 21 June 1983 seems to link the development of the sciatica to the knee physiotherapy, which he was having and Mr McQuillan felt that he had almost certainly got a disc prolapse causing these symptoms. The result of all this was that he had an L5/S1 prolapsed lumbar disc excised in July 1983 and since the symptoms of what was originally thought to be a hamstring pull in fact turned out to be sciatica. I can understand Mr Smillie's assertion that this dated to his time on crutches whilst recuperating from his knee operation.

In answer to your question as to whether or not the area, which has caused repeated problem from his back is the original area, I can confirm that in 1997 he had a further prolapsed disc on the right at the same level of L5/S1. This was confirmed on MRI scan. At that operation he was found to have a degree of disc protrusion and some calcified scar tissue comprising the S1 nerve root. This was decompressed in April 2000. He had a further MRI scan because of recurrent symptoms, which showed a further recurrent disc prolapse in addition to some scar tissue. The right L5/S1 disc space was re-explored on 3 July 2000 and further scar tissue was excised to good effect. It would therefore appear that all his back problems lie at the one level and could be traced back to the original lesion. I hope you will find the photocopies helpful".

[105] Ms Swanston submitted that that was a reasonable summary of what had been seen so far.

[106] No. 6/55 was a letter from the Consultant Neurosurgeon, Mr Russell dated 26 April 2000. This indicated that the patient was reviewed in his clinic the day before and the findings of the latest MRI scan explained to him. There was every chance that he had a recurrent disc prolapse. A re-exploration of the right L5/S1 disc space was organised for 3 July 2000. It is referred to in the Appendix.

[107] No. 6/56 was an Occupational Health Service letter of 31 May 2000 indicating that the patient was currently working 5 to 6 hours per day in a light duties capacity and felt that he was just managing. He continued to have significant symptoms with regards to his ongoing medical condition and had a date for surgery in early July. It is referred to in the Appendix.

[108] No. 6/57 was a discharge summary dated 28 August 2000 indicating that he was discharged on 7 July following a re-exploration of the right L5/S1 nerve root foramen. The exploration had been carried out and was technically very successful. There was moderate but not significant reduction of the symptoms after the operation, but only time would tell as to how much recovery he would gain. It is referred to in the Appendix.

[109] No. 6/58 was a letter from the Consultant Neurosurgeon dated 2 October 2000 indicating that Mr Smillie had made a good recovery following the S1 nerve root decompression and the excision of scar tissue. He still had intermittent niggling pains in the right leg as well as right foot paraesthesia but said that it was nowhere as bad as it had been in the past and he had not had any of the painful exacerbations from which he used to suffer. He was very happy with the outcome and he could now return gradually back to normal activities. This is referred to in the Appendix.

[110] No. 6/59 was a letter from Dr D G Jones dated 2 October 2000. It was addressed to Chief Superintendent Couper at Leith Police Station. It indicated that the hospital surgery had had a beneficial effect on the respondent's condition, his back symptoms were now a lot less troublesome and the hope was that the surgery would reduce the risk of further occurrences. He was likely to return to work within the next week or two. He had a desk based job and the doctor believed that he was fully fit for all the duties involved in that. The doctor had significant doubts about whether he would be able to cope with full operational duties in terms of physical contact with the public in conflict situations. He was, however, fully fit for his current duties.

[111] No. 6/60 of process was a letter from the same doctor to the same addressee, dated 22 November 2000. The doctor had reviewed the respondent's case notes with regard to the issue of whether or not his recent back problems were related to his duties as a police officer. The letter said:

"According to notes made by the previous Occupational Health Service doctor Mr Smillie's recent back problems commenced while he was on holiday in Florida in August 1999. His symptoms had settled by early 2000 but recurred after rising from the lying position on a bed. Unless this latter event took place whilst he was at work, which would seem unlikely, I can say that the medical evidence would not suggest that his current back problems are work related in nature. I am aware of the fact that Constable Smillie has had previous back problems, both in 1983 and 1997, these problems apparently settled on each occasion and therefore I would say the medical evidence would not support the conclusion that they are linked in nature...he is currently fit for his desk based duties but there might be a possibility in the future that you would wish him to resume full operational duties". Both of these letters are referred to in the Appendix.

[112] No. 6/61 was another letter from Dr Jones to Fiona Jack, a Personnel Officer with the petitioners dated 15 January 2001. That indicated that the respondent had been fairly successful in terms of his return to work and had recently been provided with new seating. The respondent did not believe he could cope with full operational duties. He felt that the stress of such duties, if he had to return to them, would be very difficult to cope with. The evidence from a medical point of view suggested that at the present time such duties would be too much of a risk in terms of the possibility of causing further exacerbation of recurrence of his back problem. The doctor was not optimistic that such a return would be possible within the foreseeable future. The letter went on as follows:

"During the course of the consultation the subject of the cause of PC Smillie's back problems arose. As you will be aware from previous correspondence, I have indicated that the medical evidence available to me did not support the conclusion that PC Smillie's back problems were attributable to his duties as a police officer. I indicated that this was the position and he told me that his view was that this was not so. He firmly attributes his back problems to an injury he claims to have received whilst working at the Police College in 1981. He told me that he had been suffering knee problems at that time and as a result of this spent a long time walking on crutches. He said that his back condition developed during this time whilst he was at work and that this same back problem had been a recurrent feature of his life since then. I explained to him that we would need suitably (sic) medical evidence to support such a claim and that if it became appropriate to consider this further at some stage in the future I would have to write to his hospital specialist on the basis that there should be continuous notes covering all his back problems which will clarify the connection between the individual episodes of back pain and any original problem dating after 1981. In the circumstances I would now have to qualify the comments I made in my letter dated 22 November 2000 which were of course based upon the view of the notes available to me at that time. I would now have to say that there is a possibility that PC Smillie's back problem could be attributable to his duty. The medical evidence would obviously need to be clarified further and I think it might also be helpful for you to review his personnel file to see if any information is available regarding the points raised above. Any accident or injury reports or information pertaining to his sickness absences or duties at the Police College in the 1980s would also be of relevance". An extract of this is referred to in the Appendix.

[113] No. 6/62 was another letter from Dr Jones to Dr Johnston, dated 14 March 2001. An extract of it is referred to in the Appendix. The letter says the following, inter alia:

"If Mr Smillie has to retire from the Police Force on health grounds, one particular issue which will be of very major financial significance will be whether his back problem can be attributed to his service as a police officer. Whilst his more recent episodes of back trouble are not linked in such a fashion, Mr Smillie seems to feel that he has had the same continuing problem over the years and that it derives from an original problem which developed in the early 1980s. At this time he was continuing at his duties at the Scottish Police College in Tulliallan whilst suffering a knee condition. This required him to use crutches and he believes that his back problem developed at that time as a result of this".

Thus far the excerpt is a fair summary of the letter.

[114] The letter went on to indicate that the doctor was anxious to establish whether there was any substance to his belief and sought information. One issue which the doctor had a major interest in was whether it was the same specific area of his back which had repeatedly caused problems or whether he had been unfortunate enough to suffer a series of independent back conditions. He appreciated that that might be difficult to elucidate.

[115] No. 6/54, to which I have already referred, was the answer to that letter.

[116] No. 6/63 was another letter from Dr Jones to a Chief Superintendent Byrne at Leith Police Station dated 8 May 2001. That letter reads as follows:

"Further to previous correspondence regarding the above, I have now received the report requested from his General Practitioner. The doctor states that Constable Smillie developed knee pain whilst attending the Police College in 1981, he was seen by a consultant orthopaedic surgeon at that time and I have copies of the correspondence and reports relating to this. Constable Smillie's condition was diagnosed as an over use injury for which an operation was performed. Constable Smillie then spent some time in a plaster of Paris cylinder for his leg condition. There seems to be some question thereafter about the physiotherapy which he received in terms of it possibly having precipitated some kind of back problem. I have to say that the information about this is all very vague and I have no specific indication as to when or how Constable Smillie's back problem started. He did subsequently require an operation on a lumbar disc, and it is this disc that he has had subsequent operations for due to ongoing back problems. In particular he suffered back problems in 1997 which appear to have commenced whilst he was attending Auchterarder for a separate issue. I understand that his pain recommenced whilst performing exercise on a rowing machine. Last year he had another occurrence of the same disc problem, which seems to have been initiated whilst on holiday. I think there is therefore evidence that it is the same problem which has recurred on each occasion, however, I cannot say with any certainty that the problem would not have happened anyway, and in that sense I am not persuaded that the original injury can be said to be directly responsible for his current problems. There is also the issue of when the original injury occurred, there is evidence that he had a knee problem which appeared to be due to over use and this may relate to his time at the College. There is no certainty, however, that this led to the back condition, and in particular there is no evidence when the back condition actually started. There is a suggestion that it may have been brought on by physiotherapy for the original knee condition, but clearly this should be an extremely tenuous link in terms of attributing his back problem to any form of Police duty. In the circumstances, and having researched the evidence available to me to a thorough degree, I have reached the conclusion that the payment of an injury on duty award cannot be justified in this case. As you will be aware Constable Smillie has on a number of occasions during his consultations with me argued that his current back condition can be attributed to his duty as a Police Officer, and in the circumstances I suppose he may wish to appeal my decision, we will have to wait and see what develops in this respect.

In the meantime, I believe that all parties are agreed that he should retire on health grounds, and therefore I enclose a certificate duly completed to this effect ..."

That certificate was of course No. 6/1 of process.

[117] Ms Swanston reminded me that Dr Jones had said that he would need to see the medical records. He had now seen them and said that there was no indication when and how the back problems started. He was saying exactly what he said to the Board. The 1997 and 2000 episodes were separate, having been caused by the rowing machine and some problem on holiday.

[118] No. 6/64 of process was a letter from Dr Jones to the respondent dated 8 May 2001. That letter sought to explain the doctor's reasoning. The letter runs, inter alia, as follows:

"I do have extensive evidence from your General Practitioner and the Police Force, which I have studied and thereby come to a conclusion. There are three particular problems with the question of whether or not your work can be responsible for your current condition, the first difficulty is when and how the original injury occurred. I am aware that you had a knee problem which was described as being due to over use, although it is by no means clear that this could be attributed to your duties. The medical evidence thereafter suggests that your back problem may have developed during physiotherapy for your knee condition but this would be a very tenuous link with your duties. The subsequent history of disc problems could certainly be attributed to the same inter-vertebral disc, however, after the original problem there was certainly a lengthy period without any symptoms and it is therefore reasonable to conclude that the subsequent disc problems could have occurred in any case and I am unable to conclude that the original injury has therefore directly led to your current situation.

The final point I have considered is that the subsequent disc problems in 1997 and 2000 did not occur whilst you were on duty and this adds to the balance of evidence against an injury on duty award ...." This is referred to in the Appendix.

[119] No. 6/65 was a report by Mr Smillie's general practitioner, Dr Johnston dated 20 August 2001 and is referred to in the Appendix at some length. It was written to the respondent's solicitor for the purposes of his appeal. The salient points are as follows:

"(The respondent) maintains that whilst recovering from a knee operation sustained during police training he injured his back resulting in a disc injury, which has persistently plagued him throughout the rest of his career in the Police Force. This case hinges on Mr Smillie's above assertion and I enclose photocopies of the relevant medical records, which suggests that he may well have a case. He was initially referred to Bill McQuillan the Orthopaedic Consultant in October 1981 and was seen privately at Drumsheugh Gardens. At that time George had been having recurring problems with his left knee which had started during his police training at Tulliallan Police College. This was diagnosed as High Jumper's knee and was operated on in November 1981. Following this at follow up it was noted that his quadriceps muscles had wasted considerably and he was referred to the Physiotherapy Department at Edenhall Hospital. Physiotherapy was apparently a little over zealous according to Mr McQuillan and this resulted in some further damage to the recovering knee which resulted in re-exploration of his knee in November 1982. At this operation some fibrous tissue and ischaemic bone was found and this was excised. At follow-up from this operation when he was seen by Mr McQuillan in March 1983 it was noted that he was having treatment from the Physiotherapist on his right sided hamstring which had been troubling him since the previous October. This was the injury which was to turn out to be related to his low back injury and although it was initially diagnosed as a hamstring pull it turned out to be sciatica due to a prolapse disc in his lumbar spine. This is made fairly clear in Mr McQuillan's letter dated 21^st. June 1983. Subsequent to this he did not recover completely and therefore underwent a laminotomy and excision of prolapse disc at S1 root level on the 25^th. June 1983. Again it is noted in the letter dated 9^th. August 1983 that this patient had no previous back trouble and had been a keen sportsman prior to his police training commencing. I also draw your attention to comments in the letter dated 7^th. September 1983 where Mr McQuillan states that the disc was extremely tight and adherent consistent with George having had trouble for nearly a year. He then presented to the practice with further right sided sciatica in late 1996 and an MRI scan at that time showed a large soft disc prolapse displacing the right S1 nerve root posteriorly. Degenerative changes were noted at level L4/5 but the disc protrusion was at the same level as his previous disc injury. This would appear therefore to have been a recurrence of disc prolapse at the same level as he had in 1983. (It seemed to me that this was important in view of what Ms Swanston had said about the disc problems). He was referred to Tom Russell, the Consultant Neurosurgery (sic) in December that year and seen by Mr Russell in March 1997. This was operated on in late May that year and a small amount of disc and bone was removed to allow the nerve root to be freed up and he made a good post-operative recovery from this operation. He then represented to me on the 6^th. August 1999 with further right sided sciatic symptoms and I arranged for some physiotherapy and treated him with anti-inflammatory tablets and again he was off work for approximately 3 weeks. In January 2000 he presented again with an acute right-sided sciatica. He had a further MRI scan which showed some scar tissue at the L5/S1 disc space level but a recurrent disc prolapse could not be ruled out and Mr Russell re-explored the same disc space on the 3^rd. July 2000 with further excision of scar tissue and nerve root decompression. It would therefore appear that all his back problems have emanated from one level and that this level was originally damaged in 1983 whilst he was recovering from an operation on his left knee. If you can tie all that together then he must have a good case for pension review since his knee was most certainly damaged during police training at Tulliallan....." This is referred to in the Appendix.

[120] No. 6/66 of process was a report from Mr Russell based on an examination of 16 November 2001. It was available to the Board and was referred to in submissions.

[121] For the purposes of preparing the report Mr Russell had seen the case notes held in the Department of Clinical Neurosciences at the Western General Hospital in Edinburgh. Mr Russell in his report set out the history as related by the respondent and his present condition as he described it. He then set out details of a clinical examination before giving his opinion.

[122] I think I shall have to set out that opinion in full.

[123] It runs as follows:

"From the information available to me, it is my opinion that Mr Smillie developed a prolapsed lumbar disc in or around October 1982. Mr Smillie is quite clear that this was the first occurrence of low back pain he had ever had and the pain down the right thigh was quite different from the problems he had with his left knee.

Unfortunately Mr Smillie falls into a small group of people in whom one operation to remove a disc is not sufficient. It should be understood that excision of a lumbar disc is not total excision for very sound technical reasons. The piece of disc left behind can thereafter fragment and a re-prolapse of the same disc usually on the same side can occur. Unfortunately this has occurred on 2 further occasions to Mr Smillie and it is my opinion that the right leg numbness when he has been sitting and the pins and needles on the same occasions along with the right leg cramping is a direct result of a combination of 3 disc prolapses and 3 operations.

It is also my opinion that Mr Smillie's present complaints are unlikely on the balance of probability to improve in the future.

Turning to the question of whether Mr Smillie's disc problems in the past and his present condition are related to injury in the course of his training at Tulliallan, it is very difficult for me to formulate an opinion concerning this. There is little doubt that some time in the first half of 1981 Mr Smillie injured his knee and had his first left knee operation in November 1981. It is also clear from what Mr Smillie says that his back pain and the beginnings of his right leg pain did not begin until October 1982. I must assume therefore that since he was only on light duties when he returned to work between his first knee operation in November 1981 and his second knee operation in November 1982 that the injury in question happened not between these 2 operations but prior to the first operation. If this reasoning is correct then there would have to be a time span of at least one year between the injury and the development of the low back pain and beginning of right leg pain in October 1982. It is very difficult under any circumstances to relate the onset of symptoms to an incident, which happened in excess of one year prior to the onset of symptoms. It is my opinion that it would be very difficult from a medical point of view to hold the position that an incident in mid 1981 caused the development of low back pain and the beginning of right leg pain in October 1982.

However, these is no doubt that as a result of the surgery in November 1981 Mr Smillie had to wear a full leg plaster, that is from ankle to thigh for some 6 weeks and then a slightly shortened plaster in May 1982 because of recurrence of his left knee problem. It is certainly the case that whilst wearing plasters of this size when the knee is unable to bend, that there is extra strain on the lumbar spine and abnormal movement of the lumbar spine to accommodate the non-movement of the knee. It is entirely possible that during this time period when abnormal locomotion and thereby abnormal movements of the lumbar spine had to be undertaken by Mr Smillie that damage to a lumbar disc was caused. Even when Mr Smillie was not immobilised because of his left knee problem, he did have pain in his left knee and this per se may well have caused him to walk in an unusual fashion and therefore put unusual strain on his lumbar spine. It is my opinion therefore that as a result of the repeated immobilisations Mr Smillie is likely to have damaged one or more of his lumbar discs and I think that his present condition arises from these repeated period of immobilisation as I have described above.

It is therefore my opinion that Mr Smillie's present problems with his right leg arising (sic) indirectly from the accident in 1981 in Tulliallan College."

[124] In other words Mr Russell concluded that there was an indirect connection between the accident and the symptoms but it was difficult to find a connection from a medical point of view. The period of immobilisation could have caused the lumbar strain and was therefore an indirect cause.

[125] Whether the current symptoms could be said to have been caused by the accident in a legal sense was something which had to be discussed.

[126] No. 6/67 of process was the medical report prepared by Mr Peter Scott dated 29 July 2002. The Board said that they had had regard to the clinical content but not to the opinion. As I understood it, Ms Swanston submitted that the history set out in the report and the review of the medical records contained in it did not add anything to what has already been discussed and the opinion could be disregarded on the basis of what the Board had said about it.

[127] No. 6/68 of process was a set of handwritten notes. An entry for 20 February 2004, referred to in the Appendix, indicated that there was right sciatic pain.

[128] No. 6/69 of process was an MRI report based on an examination on 4 May 2004. It is also referred to in the Appendix. Previous surgery was noted at the L5/S1 level. There was further small recurrent predominantly right-sided disc protrusion to the lateral recess at this level with associated mass effect. As before, there was also some evidence of enhancement around this area consistent with scarring. At present the predominant feature was scar tissue rather than small recurrent disc. The appearances in the levels above 5/S1 were within normal limits with normal signal returned from the conus and cauda equina and normal marrow signal for each. The opinion was that there was a small recurrent disc protrusion into the lateral recess at 5/S1 but the more striking feature was a considerable amount of enhancing scar tissue around this site following gadolinium enhancement. This was consistent with post-operative fibrosis.

[129] No. 6/70 of process consisted of certain clinical notes. The entry for 7 March 2005 indicated that the patient went on a golfing holiday to Portugal the previous week. He worked in a nuclear power station. Four days previously he awoke with right buttock pain and other problems. Again this entry is referred to in the Appendix.

[130] Ms Swanston then referred me to No. 6/71 of process, the medical report of Dr Sypert dated 13 September 2002 which was referred to in paragraph 6 of the Medical Board's report.

[131] Ms Swanston reminded that she had erroneously indicated that Dr Scott was the only person who had mentioned pre-existing changes. In fact he was the first person who had mentioned them. Dr Sypert's report was prepared for the first judicial review and Dr Scott's views were challenged. Dr Scott was the only person who said that there must be pre-existing degenerative changes for the knee injury to be held to be the ultimate problem. His position in his opinion, to which the Board indicated that they were paying no attention, had been that the respondent would inevitably have to have asymptomatic pre-existing degenerative changes in a disc in order for the periods of immobilisation and the use of crutches producing an altered pattern of mechanical strain to his lumbar spine to have produced a disc prolapse. He also went on to say in his opinion that, as an individual who was keen on exercise, the respondent would have been likely to have carried out activities which would have produced as great if not greater strains to the lumbar spine and therefore on the balance of probabilities would have produced a disc prolapse anyway since he had pre-existing asymptomatic degenerative changes in his disc. He would have been likely to have developed disc damage with prolapse and sciatica even if he had not sustained the injuries to his left knee.

[132] As Ms Swanston conceded, however, his opinion was out of the picture.

[133] Dr Sypert's report proper is a very brief document running to just over 2 pages whilst his CV covers 17.

[134] His report runs as follows:

"This independent medical opinion is based on the history given by Mr George Smillie and a full review of the medical records, including various medical reports and opinions rendered by both consulting neurological surgeons and orthopaedic surgeons.

Based on the patient history and the medical records, Mr George Smillie developed classical sciatica secondary to a lumbar herniated intervertebral disc compressing the right first sacral nerve root. This occurred during his physical therapy programme as part of his therapy for an industrial or occupational injury to his left knee. Therefore, the spinal injury is directly related and a direct consequence of the original occupational left knee injury. It is not relevant whether or not Mr George Smillie had pre-existing asymptomatic degenerative spinal invertebral disc disease. All humans past the age of 30 years have some asymptomatic degenerative spine disease which will gradually progress over their lifetime. Moreover, lumbar invertebral discs degenerate at various rates in all humans over their adult life depending on a variety of factors including genetic pre-disposition and the trauma of daily living. At various stages, the intervertebral disc becomes susceptible to herniation given pre-existing degeneration and external trauma such as the physical therapy programme given to Mr George Smillie. It is within reasonable medical probability that had Mr Smillie no injured his knee, he would have lived his life never having herniated an intervertebral disc with resulting permanent injury to his right first sacral nerve root. This opinion is based on the modern knowledge of the natural history of lumbar intervertebral disc disease. (See Sypert, GW: Lumbar Disc Disease, Part 1: Natural History and Diagnosis. Neurology and Neuro-Surgery Updates Series 7(11): 1-8 1987, page 14 of attached CV).

It is therefore my opinion that Mr George Smillie's present permanent lumbar spine disability is directly related to his original occupational knee injury received in the execution of his duty as a police constable."

[135] In his opinion, therefore, pre-existing changes were irrelevant.

[136] Dr Jones had said in his submission to the Board that it was highly likely that the lumbar spine was already beginning to develop pre-existing degenerative changes by the time his left knee was placed in plaster of Paris and to this extent he agreed with the report from Dr Sypert.

[137] Ms Swanston submitted that it was not at all clear from the Board's report whether they thought that there were asymptomatic degenerative changes or not. At page 14 they said:

"Furthermore, there was no constitutional abnormality which would lead one to regard the Appellant as at a greater risk of developing degenerative disc disease (above the background population) and other discs in the lumbar spine were noted to the healthy."

[138] It appeared that they were agreeing there with Dr Sypert and the other discs were healthy.

[139] At paragraph 5 of their discussion again on page 14, the Board said the following:

"On balance of probability, therefore and taking the 'eggshell skull principle' into account the Board finds in the Appellant's favour and its opinion is that the Appellant's condition of lumbar back pain is the result of an injury received in the execution of Police duties."

[140] Ms Swanston submitted that if he did not have a pre-existing degenerative condition and he was no different from the rest of the population, why were they taking the so-called "eggshell skull principle" into account. It had no relevance. In what way were they taking it into account and why had they mentioned it? In their conclusions on pages 12 and 13 they said inter alia

"There is therefore a significant incidence of about 10% of recurrent disc problems after initial surgery, which accounts for the ongoing problems that George Smillie has experienced, ie. his long-term back problems from a sub-standard back symptomatic on and off since his initial back problem."

Ms Swanston submitted that the Board did not say that the sub-standard back pre-existed.

[141] The two issues were being wrongly linked. If their finding was that there was no pre-existing change, then they had wrongly taken the "eggshell skull principle" into account. It was irrelevant and their conclusions were unintelligible. We did not know what effect that had on their overall decision. It might have had the effect that they had played down the other conditions which they should have taken into account namely the active or injudicious treatment and the respondent's being over zealous in his activities. The very fact that we were having a debate about the matter showed that it was flawed.

[142] I have some difficulty with this submission. The sentence last quoted merely indicates that the sub-standard back was symptomatic on and off since the initial back problem. It does not discuss the issue whether it was asymptomatic before. The third paragraph of the entry relating to the medical examination contains the following sentence: "It is accepted that L5/S1 disc may have been degenerate at the time of the left knee surgery."

[143] In the circumstances it seems to me that the Board are simply saying that there was a certain amount of degeneration but no worse than anyone would suffer from. Their conclusion that the immobilisation etc arising out of the 18 weeks in the leg cast affected an already degenerate back is, I think, only a conclusion that the same thing could have happened to anyone else in the same condition. Had there been no such immobilisation then the Board indicated that they had no way of knowing whether he would have suffered a prolapsed disc in any event but, given that there was a trigger I see no difficulty in their taking account of his pre-existing condition albeit it was one from which everyone suffered.

[144] Perhaps they could have expressed themselves better but I do not think that his condition was irrelevant.

[145] It was, after all, based on evidence from Dr Jones. Even if it was irrelevant as Dr Sypert opined it does not seem to me that it was a matter which, if left out of account, would have entitled the Board to reach a different opinion.

[146] In any event Ms Swanston went on to argue that the discussion of what had caused the disc problem was contradictory.

[147] At page 10 the Board said:

"The onset of symptoms had a temporal relationship to the knee injury and the Board did not establish any other reason for him developing the disc protrusion. It is accepted that L5/S1 disc may have been degenerate at the time of the left knee surgery."

Ms Swanston said that those two findings were contradictory but I have to disagree with that. The Board are merely narrating what his pre-existing condition was and indicating that after the knee injury he developed his problems, with nothing explaining them other than the injury and its treatment. As I have indicated, the Board reported that they had "no way of knowing whether he would have suffered a prolapsed disc in any event but are satisfied that the problems experienced by Mr Smillie reasonably flow from the injury at work." Ms Swanston submitted that that was a severe flaw because the Board had to be able to say that the respondent would not have suffered a prolapsed disc anyway. They had to say that it flowed from the knee injury. Their findings that his problems did so flow were contradicted by the sentence just quoted.

[148] Again I disagree. It seems to me that all the Board were saying is that in due course of time the respondent might well have suffered a prolapsed disc, in common with other members of the population, but as it happened his condition was brought about by the knee injury and its treatment. There is nothing contradictory about that.

[149] Ms Swanston then quoted from page 14 as follows:

"In the Board's opinion, therefore, the Appellant's recurrent back problems flowed from the original incident. The Board, at this distance in time, is unable to state the exact nature of the original mechanism of back injury but postulate that decreased core stability, immobility, and abnormalities of gait consequence upon immobilisation for 18 weeks in a plaster of Paris leg cast were the cause of significant loading on the low back to induce the initial disc lesion."

[150] Ms Swanston said that the Board was saying that they did not know the exact nature of the mechanism and pointed out that Mr Russell had said that medically one could not link events which were a year apart. She said that a postulation was an axiom or something which was self-evident. In the Okafor case the judges had indicated that in order to reach a conclusion there had to be evidence in support of it.

[151] It seems to me however that there was such evidence and I do not read the word "postulate" in the same way as Ms Swanston did. It does not seem to me that the Board are using this in the sense it might be used in a university lecture on logic but simply indicating what their medical opinion or hypothesis is.

[152] Ms Swanston submitted that there were material considerations which were not taken into account. The first of these was the treatment. It was accepted in the Board's report that the treatment had to be looked at. It could not be looked at in isolation though. The respondent was someone who wished to remain active and that had to be taken into account as well as the fact that the physiotherapy was injudicious. The respondent's medical progress was very tenuously linked to the original injury. If the treatment caused the problem one had to make mention of these other factors. The Board in fact made no mention of it.

[153] No mention was made of the later incidents in connection with the rowing machine and the Florida holiday, although they did mention the recurrence of back pain occurring on two occasions when the respondent turned over in bed.

[154] Mr McQuillan in No. 6/15, indicated that most disc lesions should recover so not every knee injury involving a plaster cast resulted in permanent disability. The context was therefore relevant. I think it is fair to say however that there did not appear to be any evidence before the Board that treatment or any activities on the part of the respondent could be said to amount to a novus actus interveniens, breaking the chain of causation.

[155] Ms Swanston submitted that the Board's report should be reduced on the basis of the principles set out in Wordie Property Company Limited. There had been irrelevant considerations taken into account and relevant and material considerations not taken into account.

[156] There was no proper basis in fact to support the conclusions reached and the reasons for the conclusions were not properly explained. Insofar as they could be decerned, they did not support the conclusions and did not leave the informed reader or the court in no doubt what the reasons for the decision were and as to the matters taken into account or not.

[157] Ms Swanston then turned to the Benefits Agency letters Nos. 6/72 and 6/73 of process.

[158] The first of these was dated 9 January 2002 and was written to the respondent. The first sentence is as follows: "I am writing to tell you that we have decided the accident you had on 25 February 1981 was an industrial accident."

[159] Thereafter the letter deals with the mechanisms for making a claim for Industrial Injuries Disablement Benefit. The other letter, dated 21 May 2002, gave details of a final assessment of the respondent's disability. The Agency decided that the industrial accident on 25 February 1981 caused him a loss of faculty consisting of reduced and painful movements of the left knee, reduced and painful back movements and discomfort and altered sensation in the right leg. It set out the extent of his disability in percentage terms over particular periods and the rate of benefit payable.

[160] Ms Swanston submitted that the letters were irrelevant. In any event the Board did not appear to have taken them into account. The test for disablement benefit was different and the matter was governed by the Social Security Act 1998. The letters did not assist in dealing with a case under the Police Pension Regulations.

[161] At page 9 of their report the Board referred to a submission from the respondent's solicitor who relied on the letter of 21 May 2002 but the Board did not deal with that matter in their discussion. Ms Swanston said that they were right to do so.

[162] In the circumstances I do not consider that I need to say any more about this particular issue.

[163] Ms Swanston then turned to the legal test. She submitted that in concluding that the disability resulted from the original injury in the execution of the respondent's duty the Board misdirected itself in law. She referred to Regulation A.11. They failed properly to consider whether his condition was directly and causally connected with his service as a police officer rather than with his merely "being" a police officer. If they had applied the correct test they would have concluded that the injury was not received in the execution of duty. The correct approach would have been, having recognised that he was suffering from a particular condition which constituted permanent disablement for the purposes of the Regulation, to have gone on to consider whether it was linked directly to his service as a police officer, as I understood the submission. Statements such as "the onset of symptoms had a temporal relationship to the knee injury and the Board did not establish any other reason for him developing the disc protrusion" showed that the wrong test was applied.

[164] I am bound to say that the Board's report has to be read as a whole and selective quotation like that does not really assist.

[165] She submitted that it was not enough to say that the respondent was a serving police officer when he started to have a problem with his back.

[166] With respect to Ms Swanston, I really do not think that that is what they did do. It has to be borne in mind that the original injury was ex concessu suffered by the respondent in the execution of his duty as a constable. The question before the Board was whether his current problems were caused by that injury. If so, then the Board was entitled to take the view that they were caused by an injury in the execution of his duty. If not then different considerations would apply.

[167] In any event Ms Swanston submitted that the Board failed to take account of the way the patient responded to the treatment and did not deal properly with the intervening events. In that respect their approach was flawed.

[168] If the rowing machine incident contributed to the back problem it did not matter that it happened while he was a serving policeman. How could it be said that that incident was something which occurred during the execution of his duty?

[169] She referred to the case of Garvin v Police Authority for City of London [1944] 1 KB 358. In that case the appellant, who was a police constable, was on duty during the Blitz serving 12 hours a day instead of the usual 8 hours. He could only take meals at irregular hours and was subject to constant wettings. The medical evidence showed that these conditions rendered him more liable to contract tuberculosis and in fact he did contract it at some time after September 1940. It was held that tuberculosis was an injury within the relevant Police Pensions Act 1921 and that it was a direct result of and therefore suffered in the execution of his duty. Humphreys J. at page 361 said the following:

"The second ground raises, I think, a more difficult question. The laws to be construed are 'injury received in the execution of his duty without his own default' .... That the words "in the execution of his duty" are to receive a benevolent interpretation is clear when reference is made to s. 33, the interpretation section. By sub-s. 2 of that section, injury suffered by a member of a police force is deemed to have been suffered in the execution of his duty if so suffered whilst on a journey to or from duty or in consequence of some act performed in the execution of his duty. A pensionable injury, therefore, if I may use that term, may be suffered at a time when the man is not actually on duty. There must, undoubtedly, be some degree of causal relation between the injury and the duty. It would not be sufficient for the claimant to say: 'I was a serving policeman when I contracted tuberculosis." It would probably be impossible in any case of pulmonary tuberculosis to establish by evidence the day or the week, or, perhaps, even the month, during which the infection of the lung occurred, but where it is shown that the conditions of service during the critical period were such as to cause unusual mental and bodily strain which, acting on a frame ordinarily healthy but at the time infeebled by long hours of duty, frequent wettings and such matters, rendered it more liable than usual to such infection, I think the injury might be described as being the direct result of, and, therefore, suffered in the execution of duty."

[170] Ms Swanston then referred to R. v Kellam ex parte South Wales Police Board [2000] ICR 632 and Lothian & Borders Police Board v MacDonald 2004 SLT 1295, another decision of Lord Reed in the Outer House.

[171] In the latter case the Police Board sought judicial review of a decision of a medical referee certifying that a police officer was permanently disabled from performing the ordinary duties of a member of the police force by reason of a depressive illness as a result of an injury received in the execution of duty. The medical referee had concluded, inter alia, that he had developed a depressive illness of moderate severity caused by the stress he faced at work which had built up from the early 1990's and which revolved around his perception that his abilities were not being recognised and also concluded that there was a substantial causal connection between the circumstances to which he had been exposed when carrying out his duties as a police officer and his mental injury. Lord Reed held that there was a sense in which the respondent's depression could be described as "brought about by stresses suffered actually through being at work" but a distinction could and should be drawn between stresses encountered while the officer was at work which arose out of the execution of his duties as a constable and those which were experienced while at work but which did not arise out of the execution of his duties, although they might be connected. Applying the test in R. (on the application of Stunt) v Mallett [2001] ICR 989, something external had to impact on the claimant while he was carrying out his duties but no event had been identified which caused the respondent's perception that his abilities were not recognised nor had it been determined whether any such event arose in the course of the execution of his duty as a constable and the petition was granted. There was a fairly comprehensive review of the earlier law and Ms Swanston drew my attention in particular to paragraphs 77-79 of Lord Reed's Opinion at pages 1313 and 1314 as follows:

"[77] A number of points arise from the judgments in Stunt. First, the judgments focus on whether the injury was received by the officer 'while he was carrying out his duties' (per Lord Phillips of Worth Matravers MR) or "actually through being at work" (per Simon Brown LJ) or 'on police duty' (per Longmore LJ). These phrases reflect the language of the legislation itself, which focuses on whether injury was received by the officer "in the execution of duty". They might be contrasted with the language used in Kellam (eg. 'all aspects of the officer's work', "work circumstances", 'events experienced by the officer at work'), which is capable of a wider interpretation and appears to have been used in a wider sense.

[78] Secondly, the judgments make it clear that in a situation where a variety of events, conditions or circumstances have contributed to a single injury, only some of which were experienced by the officer in the execution of his duty, then the question whether the injury was "received in the execution of duty" is to be answered (ordinarily at least), as in the law of delict by deciding whether the events experienced in the execution of duty made a material contribution to the injury. That principle was adopted in the law of delict so as to relieve a pursuer of the burden of proving the impossible (ie the proportions in which the factors were effective in producing the injury, or which factor was decisive), in a situation where justice demanded that he receive a remedy. For the same reasons as in the law of delict , the application of that principle would appear to be just and reasonable in the context of the regulations. This appears to be the appropriate way of dealing with the issue which Richards J. referred to as 'compartmentalisation', and also with the question, which he left unanswered, as to whether there requires to be a substantial causal connection (the answer to that question being in the affirmative, as Lord Phillips of Worth Matravers MR made particularly clear)."

Pausing there for a moment, Ms Swanson submitted that that was the correct approach and that the Board had failed to follow it. They had failed to look at the history of events and consider which contributed to the respondent's current condition and they had failed to consider whether other factors had made a substantial contribution to the injury. I am bound to say however that once they had taken the view that the knee injury and the treatment made a substantial contribution to the injury, it is difficult to see why they should require to indicate whether in their view anything else did as well.

[172] In any event, paragraph 79 went on as follows:

"[79] Thirdly, the judgments recognise that there may be situations where an injury has been caused (or contributed to) by a condition affecting the officer while he was on duty, but in which it nevertheless cannot reasonably be said that the officer received the injury in the execution of his duty, within the meaning of the regulations. For example, if an officer suffers a disabling stroke as the result of progressive heart disease from which he has suffered throughout his career, then (in the absence of some precipitating event while on duty) he cannot reasonably be said to have received the disabling injury in the execution of his duty, even though he was affected by the disease throughout his police service. The purpose of the regulations is not to protect police officers against health problems which are unrelated to the execution of their duty. Similarly, if the officer is suffering stress while on duty and also while off duty, which ultimately leads to his developing a psychiatric illness, the fact that he was suffering stress while he was on duty will not necessary entitled him to an injury award."

[173] It seems to me that there maybe a parallel in what Lord Reed says in that case with the current situation. If the respondent was indeed suffering from an asymptomatic degenerative condition in his lower back then he would not be able to claim a pension if that condition became symptomatic without, as Lord Reed put it, some "precipitating event while on duty". In the current case the Board has found that there was a precipitating event while on duty and indeed it is conceded that the precipitating event, if such it was, namely the knee injury, was suffered while in the execution of his duty. That knee injury and its treatment, which there is no reason to categorize as a novus actus interveniens, is, according to the Board, the source of the respondent's current complaints.

[174] Ms Swanson submitted however that one has to look at the contributions made by different factors. There were a number of factors which the Board had not properly taken account of which could have contributed to the respondent's current condition and which were not attributable to service as a police officer.

[175] The Board had therefore failed to apply the correct legal test.

[176] I was invited to uphold the petitioner's four pleas-in-law and reduce the decision complained of.

[177] Again I have some difficulty with the later part of Ms Swanson's submission. The problem which was addressed in the authorities to which she referred me was whether a particular condition could be said to have arisen while the officer was in the execution of his duty. In the current case the issue was whether the respondent's condition was attributable to an injury which was admittedly suffered in the execution of his duty and it seemed to be that that is a matter for medical rather than legal experts. See Kellam.

Submissions for the Respondent
[178] Mr Armstrong invited me to sustain the respondent's pleas-in-law, repel those of the petitioners and refuse to grant the orders sought. He recognised and accepted the basic principles set out in Wordie Property Company Limited, Associated Picture Houses v Wednesbury Corporation and Strathclyde Police Board v McKinlay.

[179] He submitted, however, that there were a number of authorities which refined those principles. Ms Swanson had made a very close and legalistic analysis of the situation but that was not necessarily appropriate.

[180] The starting point was that the knee injury was indeed an injury sustained in the execution of the respondent's duty as a constable. The question was whether the back injury or any episode of it was something separate.

[181] The petitioners said that it was separate but the Board had come to the opposite conclusion. The true interpretation of the Board's decision was that the episodes of back pain from which the respondent suffered over the years were complications of the original injury. It had not been submitted before the Board that there was continuing unremitting disability. There had been intermittent episodes during which sometimes the pain was unbearable and the respondent was rendered unfit for work. Under reference to Strathclyde Joint Police Board v McKinlay, he said that the major task of the Board was to consider the aetiology of the back pain. The decision-making process was in essence a matter of medical opinion and that had been stated and restated in a number of cases.

[182] He referred firstly to Bradley v London Fire & Civil Defence Authority [1995] ILRL 46. The appellant in that case was a fireman who was involved in a road accident on his way to work and sustained a whiplash injury which caused him persistent pain thereafter. He developed severe depression and retired from the Fire Service on grounds of ill-health. The Fireman's Pension Scheme provided for payment of a gratuity and an injury pension where an injury or disease was received by a fireman in the execution of his duties and the regulations were similar to those with which we were dealing in the current case. Mr Armstrong drew my attention to paragraphs 29 & 30 of the decision of Latham J as follows:

"29. Following the wording of the scheme itself, the first question is whether or not there has been disablement as a result of mental infirmity. There is no issue in relation to this question. The next question is whether or not that mental infirmity was occasioned by disease. That is a question of medical opinion, which has been answered by Dr Dick in his letters of both 9 March 1992 and 30 April 1992. In the former, he described the appellant's condition as 'adjustment disorder with depressed mood', and categorised it as a disease. In the latter, he gives a slightly different nomenclature to it that is an 'adjustment reaction with depressive symptoms', but nonetheless still categorised it as an illness. I do not consider that he intended there to be any difference between the word "illness" and the word 'disease', even though his description of the syndrome may have been slightly different.

30. That being the relevant "injury", the question then is whether or not it is a qualifying injury as having been 'received in' that is having arisen out of or being caused by, the execution of his duties as a regular fire-fighter. This is a question of aetiology, which is essentially a matter of medical opinion. In the present case, Dr Dick's opinion was clear in his letter of 30 April 1992, namely that the infirmity (he was clearly referring to the illness, or disease) was caused by the stresses of his work. On the facts of this case, it seems to be that that answered the final question conclusively in the appellant's favour. It may be that in certain circumstances where there is a complex aetiology, an issue of law may arise as to whether or not a particular factor identified by medical opinion is so remote or so nebulous as to justify the conclusion that there is no real causal nexus between that factor and the ultimate injury or disease. But the present case is not in any view such a case."

[183] Mr Armstrong submitted that as a consequence of authorities like that, medical referees were given more scope than might be thought appropriate in other circumstances.

[184] He referred again to Kellam and in particular to pages 644 and 645 where Richards J said the following:

"The test of causation is not to be applied in a legalistic way. The concept is relatively straightforward, as Latham J observed in Bradley v London Fire & Civil Defence Authorities [1995] IRLR 46, and falls to be applied by medical rather than legal experts. In particular, in my view, the reference to a 'direct' causal link does not mean that fine distinctions may be drawn between "direct" and 'indirect' causes of the injury. The reference derives from the statement in Garvin's case that the injury was the "direct result of, and, therefore, suffered in, the execution of duty". That language was used, as it seems to me, as a means of emphasising the existence of a substantial causal connection between the injury and the person's service as a police officer. The point was to distinguish such a situation, which qualified for an award, from the case where a receipt of an injury and service as a police officer were entirely coincidental rather than connected circumstances, which did not qualify for an award".

[185] He then referred to Phillips v Strathclyde Joint Police Board 2001 SLT 1271, a decision of Lord Hamilton sitting in the Outer House. In that case a former police constable who had been discharged from the force on medical grounds sought judicial review of a decision of a medical referee who found that he had not been disabled as a result of an injury sustained in the execution of his duty. It was accepted by the referee that the petitioner had developed an anxiety disorder while working as a policeman, having had to deal with a number of stressful incidents in a short space of time but concluded that nothing had taken place that was out of the ordinary for a policeman and his illness did not arise from an injury sustained in the execution of his duty. His Lordship held that the relevant disablement had to have been caused or substantially contributed to by an "injury" as defined and there had to be a substantial causal connection between the injury and the constable's duty but while the mere fact that the condition manifested itself while he was a serving policeman would be insufficient in itself to satisfy the causation test, it was not necessary that the work circumstances were the sole cause of the injury, nor did a particular vulnerability or susceptibility on the part of an individual constable prevent an award being made. In relying on the fact that the events causing the illness were not out of the ordinary for a policeman the referee had misdirected himself and reduction was granted. Mr Armstrong drew my attention to page 1274 paragraph E where His Lordship said the following:

"The test of causation is not to be applied in a legalistic way but falls to be applied by medical rather than legal experts ( Kellam at [2000] ICR, p 644".

[186] In Lothian & Borders Police Board v Ward 2004 SLT 216 the petitioners sought judicial review of a decision of a medical referee certifying that a former police constable was permanently disabled as a result of an injury sustained in the execution of her duty. The respondent had been absent from work as a result of stress experienced after the marking of her annual assessment, which she challenged, and was transferred temporarily to another station. Eventually she was medically retired on grounds of depression. The petition was refused in the Outer House and the Board reclaimed arguing inter alia that there was insufficient evidence of events prior to the respondents going off sick to justify the conclusion that her depressive illness was an injury received in the course of her employment. The appraisal process should not have been considered as part of the "works circumstances" and was a manifestation of the relationship between the officer and the Force which was extraneous to the carrying out of her duties.

[187] In a reclaiming motion, it was held that the Lord Ordinary, who had refused to grant reduction of the medical certificate, had not erred.

[188] The opinion of the court included the following extract at page 218:

"We consider that the principles to be drawn from Stunt and Kellam and the other authorities mentioned and approved in these cases, applicable to the issue that arises in this case are as follows. The person's injury must be 'directly and causally connected with his service as a police officer' (Huddersfield Police Authority v Watson). The test of causation is not to be applied in a legalistic way and falls to be applied by medical rather than legal experts (Kellam). What is important is the existence of a "substantial causal connection between the injury and the person's service as a police officer" (Kellam). The words 'in the execution of duty' are to receive a benevolent interpretation (Garvin v City of London Police Authority)".

"Duty" relates to the officers "work circumstances". The injury must have been caused through actually being at work as a police officer (Kellam). The circumstance that a particular constable is more vulnerable that the generality of his colleagues to injury (whether that is a physical vulnerability or mental vulnerability by reason of having, for example, an "egg shell" personality) does not preclude that constable from obtaining an injury award (R v Fagin Ex p Mountstephen)".

[189] What was to be expected in a decision made by a Board? In answer to that Mr Armstrong looked first of all at the case of Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577.

[190] This was an appeal by landlords against a decision of a rent assessment committee.

[191] The facts are not directly relevant to the current discussion but Mr Armstrong referred me in the first place to certain remarks made by Danckwerts L J at pages 600 to 601 as follows:

"On the first point, the principle question, as I understand it, is whether there was a failure by the committee to give, as required by the Act of 1958, the reasons for their findings and decision, so that there is an error of law which visiates that decision.

There are certainly criticisms that can be made in respect of lack of clarity and resulting obscurity in regard to the grounds on which the decision of the committee was based, but I think that there is force in the contention that the committee is not a formal body, and is not wholly composed of lawyers, so that the necessary skill which a trained judge would have exercised may not be found in the members of the committee.

I think that it is not right to require a too high standard of the committee in this respect. It is possible, in my opinion, to appreciate from the decision of the committee the matters which affected their conclusions."

[192] Mr Armstrong submitted that a similar approach was appropriate in the current case. He also referred me to the opinion of Edmund Davies LJ at page 603 as follows:

"That the decision, expansively expressed thought it was, leaves untied many loose ends is beyond doubt and, again, has not been doubted. Nevertheless, it has constantly to be remembered that such tribunals are basically informal in character. Its members are not restricted to the evidence adduced before them; they are free to draw upon their cumulative knowledge and experience of the matter in hand (see Crofton Investment Trust Ltd v Greater London Rent Assessment Committee); and they are not expected to express their decisions with the formality and precision which is required in judicial proceedings."

[193] I was then invited to look at Metropolitan Property Holdings Ltd v Laufer and Others [1975] 29 P&CR 172, another appeal against a decision of a rent

assessment committee. The landlords appealed against the determinations of the committee, contending that they had erred in law in, inter alia, failing to give reasons dealing with the case made by the landlords and not taking into account the rising cost of living as expressed in the retail price index. Amongst other things it was held in dismissing the appeal that the character, nature and extent of the reasons given by a tribunal under section 12 of the Tribunal & Inquiries Act 1971 must in some measure be governed by the nature of the problem which it was set to resolve; that where in a typical simple case of a matter of valuation opinion a rent assessment committee was not satisfied with either of the alternative figures put forward in evidence on each side and on its own expert knowledge preferred another figure, which it was entitled to do, there were no reasons which it could give or was bound to give save that it thought that its figure was right.

[194] At page 176 Lord Widgery CJ said the following:

"So there is an obligation to state reasons, and it is necessary to say that this is a provision applicable to a wide range of tribunals, not merely the rent assessment committee, and it is, I think, obvious that the character of the reasons given, the nature of the reasons, the extent of the reasons, must in some measure be governed by the nature of the problem which the particular tribunal has been set to resolve. It is well established, so much so, that I shall not refer to any authority, that rent assessment committees when fixing fair rents are entitled, indeed bound, to have regard to their own experience and knowledge."

[195] Mr Armstrong submitted that these considerations applied equally to a board of medical referees and I have to say that I find that argument attractive. That is precisely why such boards are set up. Reference was then made to the case of Seddon Properties Ltd & Another v Secretary of State for the Environment & Another [1981] 42 P&CR 26. Mr Armstrong referred to this because of the suggestion by Ms Swanston that the Board had to deal with every single issue which was raised before them. Seddon Properties was a case where an application was made to quash a decision of the Secretary of State whereby he dismissed two planning appeals by the applicants and refused permission for a particular development. Forbes J set out in his judgement the principles affecting judicial review including questions of Wednesbury unreasonableness, the taking into account of irrelevant material and the failure to take account of relevant material and other principles. At pages 27 and 28 he said the following:

"If there has been conflicting evidence at the inquiry, it seems to me that he (the Secretary of State) may, if he wishes, prefer one piece of evidence to another, though the material must be there to enable him to do so, he must give reasons for doing so and, if he is disagreeing with a finding of fact by the inspector, he must apply the procedure of rule 12. (That involved notifying the parties and giving them the opportunity of making further representations). Since the courts will only interfere if he acts beyond his powers (which is the foundation of all the above principles), it is clear that his powers include the determination of the weight to be given to any particular contention; he is entitled to attach what weight he pleases to the various arguments and contentions of the parties; the courts will not enter a submission that he gave undue weight to one argument or failed to give any weight at all to another. Again in doing so, he must, at any rate if substantial issues are involved, give clear reasons for his decision.

In considering whether or not the Secretary of State has acted contrary to any of these principles the materials on which the court may come to a conclusion, are, in general, the inspector's report and the letter of the Secretary of State setting out his decision. In approaching this task it is no part of the court's duty to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph."

[196] Mr Armstrong submitted that in the current case the parties were aware of the lengthy history of the respondent's medical condition. They were also well aware of the content of the various competing submissions.

[197] He referred to Bolton Metropolitan District Council & Others v Secretary of State for the Environment & Others [1996] P&CR (HL) 309, a House of Lords case.

[198] This was another planning appeal and I need not go into the facts. At pages 313 and 314 Lord Lloyd of Berwick said the following in his speech:

"Before dealing with each of these challenges, I should first make some preliminary observations on the correct approach to decision letters in planning appeals, with which alone we are concerned in this case. This can be done very briefly, since the question was fully covered in the recent speech of Lord Bridge of Harwich in Save Britain's Heritage v No.1 Poultry Ltd. Under section 70(2) of the Act of 1990, read with section 77(4), it was the duty of the Secretary of State to have regard 'to the provisions of the development plan ... and to any other material considerations'. Under rule 17(1) of the Town and Country Planning (Inquiries Procedure) Rules 1988 (SI 1988 No. 944), it was the duty of the Secretary of State to "notify his decision ... and his reasons for it in writing to all persons entitled to appear at the inquiry who did appear ..." So the Secretary of State had to have regard to all material consideration before reaching a decision, and then state the reasons for his decision to grant or withhold planning consent. There is nothing in the statutory language which requires him, in stating his reasons, to deal specifically with every material consideration. Otherwise his task would never be done. The decision letter would be as long as the inspector's report. He has to have regard to every material consideration; but he need not mention them all.

What then must be mentioned? The classic exposition was given by Megaw J in In re Poyser & Mills' Arbitration approved by this House in Westminster City Council v Great Portland Estates Plc:

Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised.

Ten years later, in Hope v Secretary of the State for the Environment Phillips J said:

'It seems to me that the decision must be such that it enables the appellant to understand on what grounds the appeal has been decided and be in sufficient detail to enable him to know what conclusions the inspector has reached on the principle important controversial issues.'

Lord Bridge in Save Britain's Heritage v No 1 Poultry Ltd, described this statement as being "particularly well expressed".

Coming to the present case, Glidewell LJ put the matter as follows:

'In relation to two of these issues, Schiemann J in the passages I have quoted said that it is "fanciful to postulate" that the Secretary of State did not take these matters into account, nor give them appropriate weight. With all respect to a judge with great experience in this field, I do not think this is a proper approach. A decision letter must, in order to give proper and adequate reasons, refer to each material consideration, and explain why, because or despite it the eventual decision is reached. At the least, if there is no express reference to some matter, it must be possible for the reader to infer that the words used implied such a reference.

It may be that in this passage, Glidewell LJ was saying only that he disagreed with Schiemann J's conclusion. But insofar as he was saying that the decision letter must refer to 'each material consideration' I must respectfully disagree. This seems to go well beyond Phillips J's formulation in Hope v Secretary of State for the Environment. What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the "principal important controversial issues". To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."

[199] Mr Armstrong submitted that while that case dealt with planning issues, the same approach ought to be applied when looking at the decisions of a medical board. Indeed that seemed to be what Ms Swanston was saying when she quoted from Wordie Property and I have no difficulty in holding that that is the correct approach.

[200] Mr Armstrong submitted that the report of the Board substantially complied with the tests and should not be considered in the absolute terms desiderated by Ms Swanston but on a more refined and generous level.

[201] He referred again to Strathclyde Police Joint Board v McKinlay and drew my attention to page 781, paragraph 48, where Lord Reed sums up the previous paragraphs in which he set out the role of the medical referee (now the Board):

"48. The function of the medical referee thus has an investigative character, rather than being purely adjudicatory. He carries out such examinations and interviews of the appellant as he considers necessary. He is entitled to rely on his own medical knowledge in reaching his decision. He is not restricted to accepting or rejecting the respective contentions (if any) of the appellant and the police authority. He is free to form his own view, although it may not coincide with the contentions of either party."

[202] Mr Armstrong submitted that the Board had a wide discretion as to how they conducted their investigation.

[203] How had the Board approached the matter in this case? In the first place, Mr Armstrong drew my attention to page 3 and the decision summary which read, as I have said, as follows:

"After a full consideration of the Appellant's case, which included a review of all the written information submitted, a full clinical (orthopaedic) assessment and detailed cross-questioning during the Hearing itself, the Board concluded that his lumbar back pain is the result of an injury received in the execution of Police duties."

It was plain, therefore, that they had had regard to all of the written material. He reminded me that the essence of the duty was to have regard to it and they had fulfilled that duty. It was their medical opinion as to the effect of that material which counted, not legalistic consideration.

[204] At page 4, they set out what the material consisted of and there was no doubt that they had complied with their duties to have regard to all of the information put before them.

[205] In these circumstances, while they had excerpted certain material, it was plain that they had had regard to everything.

[206] At page 10, where the report of the medical examination itself began, there was set out a clear rational process leading to the decision. In the first place, it was narrated that they had reviewed all medical records. In the second place, it was established that there was no back pain before the left knee problem. The source of that was a letter from the respondent's G.P. In the third place, it dealt with a report of pain and spasm in the right hamstring muscles following the first operation, consistent with referred pain from the back. That led to an MRI scan showing a prolapsed L5/S1 disc pressing on the right S1 nerve route. Over the years, it was plain that the respondent suffered from sciatic pain and there were several MRI scans which all pointed to the one complaint, that is, a prolapse at L5/S1. The Board were entitled to take that into account and reached the conclusion that it was the same vertebrae throughout.

[207] There was a temporal relationship with the knee injury and the prolonged immobilisation of the left leg. It was accepted that the disc may have been degenerate already and there was no back problem before the knee injury occurred. They were entitled therefore to conclude that the prolapsed disc flowed from the injury to the knee at work.

[208] It was apparent that from around October 1982, until the MRI scan in 1984, there had been complaints of sciatica in the right leg at fairly regular intervals. There was a gap between 1989 and 1995 but that did not cause a problem for the respondent's submissions. The condition was just in remission and there were subsequent relapses as was often the case.

[209] The case of Okafor did not establish any principle. It was a decision on its own facts and therefore distinguishable. The facts were not comparable. There was no evidence before Mr Okafor which entitled him to reach his decision but the opposite was true in the current case.

[210] In that case, there were several contrary medical opinions and the referee gave no reason why he disregarded them. That was simply not the case here, where we had a very full report.

[211] There were a series of episodes of acute back pain, all referable to the same vertebral level. There had been three operations on that same vertebrae. The Board had plainly set out their explanation for their conclusions in their discussion.

[212] In the current case, there was medical opinion which the Board was entitled to rely on, which was not the case in Okafor. Mr Armstrong referred to No. 6/66, Mr Russell's report. I have already referred to the relevant paragraphs. Mr Armstrong submitted that Mr Russell was saying that, in the absence of any other explanation, it was difficult to conclude that the two conditions were linked because of the time gap, when he said:

"It is my opinion that it would be very difficult from a medical point of view to hold the position that an incident in mid 1981 caused the development of low back pain and the beginning of right leg pain in October 1982."

However, that opinion was qualified in the next paragraph, to which I have already referred, but which bears repetition:

"It is entirely possible that during this time period when abnormal locomotion and thereby abnormal movements of the lumbar spine had to be undertaken by Mr Smillie, that damage to a lumbar disc was caused. Even when Mr Smillie was not immobilised because of his left knee problem, he did have pain in his left knee and this per se may well have caused him to walk in an unusual fashion and therefore put unusual strain on his lumbar spine. It is my opinion therefore that as a result of the repeated immobilisations Mr Smillie is likely to have damaged one or more of his lumbar discs and I think that his present condition arises from these repeated periods of immobilisation as I have described above."

This was therefore, said Mr Armstrong, a supportive opinion and the case did not fall into the same category as Okafor.

[213] Mr Vanhegan, who carried out the medical examination for the purposes of the Board's deliberations, was an eminent man and the report of that examination was set out. There were also letters from Dr Jones, who appeared at the hearing, and who suggested that there was no relationship between the knee injury and the back pain.

[214] Dr Jones was, however, a specialist in occupational health. The particular problem which the referees were facing, was one which Mr Vanhegan was more qualified to address.

[215] Mr Armstrong then turned to the conclusions following the medical examination, noted at page 12. Part of these conclusions ran as follows:

"It is noted that surgical findings were principally of scarring at the site of previous surgery with residual disc material extruding. This is often fibrous tissue resulting from bleeding into the disc space after initial surgery. It is no longer standard practice to scrape out all disc material as this can lead to "disciitis" which can give rise to intractable pain from an intervertebral disc space. It also accelerates collapse of the disc space at that level. The standard practice is to remove only the prolapsed disc and any other material liable to prolapse further. There is, therefore, a significant incidence of about 10% of recurrent disc problems after initial surgery, which accounts for the ongoing problems that George Smillie has experienced, i.e. his long-term back problems from a sub-standard back symptomatic on and off since his initial back problem. He cannot be considered to have recovered completely at any time after that first operation in the interim up to the time of leaving the police service."

Mr Armstrong submitted that that provided support for the view of the Board that the respondent's symptoms since the onset of the pain were related and that they all stemmed from the same thing. Sometimes it went into remission but at other times it gave rise to acute pain. They were not separate matters.

[216] On occasions the pain might be associated with getting out of bed or using a rowing machine or being on holiday but, effectively, it was the same condition throughout.

[217] Mr Armstrong turned to No. 6/54, the letter from Dr Johnston properly dated 12 April 2001 to which I have already referred. That was the source of the comment in the Board's report that the respondent had had no problem with his back before his operations.

[218] There is reference in that document to the post-operative period being hampered by inappropriately vigorous physiotherapy. An L5/S1 prolapsed lumbar disc was excised in July 1983 and the symptoms of what was originally thought to be a hamstring pull turned out to be sciatica. Dr Johnston could understand the respondent's assertion that this dated to his time on crutches whilst recuperating from his knee operation. That was an affirmation of the respondent's contentions. There was a further prolapsed disc on the right at the same level of L5/S1 in 1997 and all of this was consistent with what Mr Vanhegan was saying.

[219] Dr Johnston's opinion that "it would therefore appear that all his back problems lie at the one level and could be traced back to the original lesion" was also consistent.

[220] Mr Armstrong submitted that if the onset of sciatica could be traced to the original knee injury, then every other episode of acute back pain must also be so linked.

[221] Mr Armstrong then turned to some specific criticisms which Ms Swanston had made. Her first complaint was that to have excerpted documents produced confusion and indicated that the Board had not taken account of all relevant material.

[222] He referred again to the Board's report which asserted that they had had regard to all of it.

[223] She had said that the first document referred to was dated June 1983 because there was no reference to the knee in it. That was inaccurate. Nos. 6/10, 6/11 and 6/13 were in fact referred to in Appendix 1 in the treatment of the occupational health records and they were all dated earlier in 1983. In any event, the Board had had regard to everything. As far as the lack of earlier reference to the knee injury was concerned, I was referred to page 13 of the Board's report where they said the following:

"The material facts of the case before the Board were that the Appellant suffered a left knee injury in February 1981 and that this was incurred during the execution of Police duties (at Training College)."

They were, therefore, treating the fact of the knee injury as a given. There was no dispute about it. The question was whether the back injury was referable to that, so it was not surprising that there was no specific reference to documents dealing exclusively with the knee.

[224] As far as the omission of references to the actions of Mr Smillie himself was concerned, I was referred to No. 6/15 of process, the excerpt of which in the Appendix had been the subject of criticism since, inter alia, it did not refer to the respondent probably talking himself into another operation if he was silly.

[225] As it happened, that excerpt did indicate that he had been up and about but there was no evidence anywhere that Mr Smillie had been "silly".

[226] No. 6/16, the letter from Mr McQuillan dated 20 July 1983, noted that the respondent had tried to remain in bed but found it very difficult to do so. The excerpt of that letter had been criticised by Ms Swanston. There was no evidence that his finding it difficult to stay in bed had caused any problem. As far as the rowing machine was concerned, (as referred to in No. 6/32 of process), that was referred to in the Appendix. However, it seemed to be suggested that the omission of reference to these factors or at least detailed reference to them, meant that they were not afforded the relevance they ought to have been afforded and the informed reader needed to know how the Board's consideration of the issues was affected by the extraneous events.

[227] Mr Armstrong submitted that there was clear medical opinion that all of the episodes of back pain related to the same thing. If so, it did not matter what was happening in between. The fact that other episodes were brought on by various life experiences did not affect the history of the underlying problem.

[228] Secondly, if the suggestion was that Mr Smillie was responsible to any extent, then that was not a relevant argument. At the point after the knee injury, the scheme of the regulations did not allow for the allocation of fault or contributory negligence. The regulations were designed to deal with a situation where there was an injury in the execution of duty.

[229] I was not persuaded that this was a sound argument. If the back pain flowed from the original knee injury and its treatment, then Mr Smillie would be entitled to a pension. If on the other hand, the chain of causation was broken by some extraneous or unwarranted event, then the opposite would apply. However, it did not seem to me that there was any evidence that there was any novus actus interveniens. The Board were entitled to treat the references to injudicious treatment and silliness and the references to the rowing machine and the holiday episode as being insufficient to break the chain of causation and I do not think it was necessary for them to refer to them specifically. Once they formed the view, as they were entitled to do, that the episodes of back pain through the years were caused by the original injury, then it did not matter that particular events triggered such pain from time to time.

[230] Dealing with the "eggshell skull principle", Mr Armstrong turned to Ms Swanston's criticisms of the Board's report at page 14, where they indicated they took that principle into account. The Board had said:

"Furthermore, there was no constitutional abnormality which would lead one to regard the Appellant as at greater risk of developing degenerative disc disease (above the background population) and other discs in the lumbar spine were noted to be healthy"

They went on to say, however, that they took the "eggshell skull principle" into account. Mr Armstrong said there were two ways of looking at that. In the first place it could mean that for completeness, the Board were saying that, as far as they could see, there was no constitutional abnormality but if they were wrong then the principle would apply.

The second was that, having had regard to all the material and having listened to the submission which related to the "eggshell skull principle" they had come to a view about it. The criticism appeared to be that one could not tell how the Board had dealt with the principle but that was not the case. They had expressly dealt with it. Their treatment of it had to be seen in context and it was not completely irrelevant.

[231] At page 13 the Board indicated that the respondent had experienced long-term back problems from a sub-standard back symptomatic on and off since his initial back problem. That was a reference to his vulnerability since the first prolapse.

[232] At page 10 the Board indicated that "it is accepted that the L5/S1 disc may have been degenerate at the time of the left knee surgery." That may be a reference to the opinion of Dr Jones set out at page 7. In his opinion it was highly likely that the lumbar spine was already beginning to develop pre-existing degenerative changes by the time the left knee was placed in plaster of Paris.

[233] It might well be that the comment at page 10 simply meant that there was no dispute between the parties about this. The most reasonable explanation seemed to be that he might well have had pre-existing degenerative changes but no more than anyone else as indeed the Board say in terms. That may explain why reference was made to the "eggshell skull principle."

[234] The Board might be saying, according to Mr Armstrong that if they were wrong and there were constitutional changes then the "eggshell skull principle" would apply. Mr Armstrong reminded me that the Board did not consist of lawyers. A meaning could be derived from the words by people who were reading as informed parties. Provided the general thrust was clear then one need not and ought not to construe the report as a conveyancing document.

[235] I had little difficulty with the Board's reasoning in this regard.

[236] It seems to me that having indicated in the report of the medical examination that the L5/S1 disc may have been degenerate at the time of the left knee surgery, they have gone on to deal with the consequences of that and in my opinion they cannot be criticised for it. They were entitled to proceed upon that basis given the evidence before them.

[237] Mr Armstrong then turned to the criticism of the comment at page 10 that the Board had

"no way of knowing whether he would have suffered a prolapsed disc in any event but are satisfied that the problems experienced by Mr Smillie reasonably flow from the injury at work."

[238] He submitted that there was a relevant meaning to that. The Board was saying that they could not tell for definite whether he might or might not have had a prolapsed disc in due course if the knee injury had not happened. Putting that to one side however, they were satisfied that the problem resulted from the injury.

[239] I have already indicated what I think the proper interpretation of that quote is and I do not think that Ms Swanston's criticisms of it are justified.

[240] In any event, Mr Armstrong reminded me again that the Board did not consist of lawyers.

[241] He turned then to the criticisms of the Board's comments at page 14 that they were

"unable to state the exact nature of the original mechanism of back injury but postulate that decreased core stability, immobility, and abnormalities of gait consequent upon immobilisation for 18 weeks in a plaster of Paris leg cast were the cause of significant loading on the low back to induce the initial disk lesion."

[242] He submitted that the postulation was supported by the opinions and the evidence. The Board simply said that they were simply unable to state the "exact" nature of the original mechanism of back injury. That made sense. They could not say what the mechanism was with absolute precision. As far as the other factors were concerned namely, the respondent's wish to remain active, the over zealous physiotherapy, how he responded to it, the rowing machine episode and the holiday episode, these were aspects of the facts which led to acute episodes of pain. The respondent had been left vulnerable to episodes such as these because of his injury and its treatment and they were essentially irrelevant since they merely provoked symptoms of an ongoing situation. The Board's reasoning was that they attributed the original problem to the plaster of Paris cast and the immobilisation and everything that happened thereafter was a result of the same problem. Sometimes it was in remission, as Mr Armstrong had already submitted, and sometimes it became acute. The cause of its becoming acute varied from time to time, whether it be an episode in bed or the episodes with the rowing machine or on holiday but all of these were referable to the original injury. The Board had to decide what was materially or substantially the cause of his condition.

[243] As far as the legal test was concerned, Mr Armstrong submitted that the Board had applied the correct one. The petitioners were keen to separate out his various episodes of back pain and apply the test to each of them. There was, though, only one relevant injury, the knee injury, and everything else after it was a complication or consequence of it. As long as the Board were satisfied that the knee injury was the original cause of the injury, the Board were entitled to be satisfied that everything that happened thereafter flowed from it.

[244] When one asked how the reasoning would appear to an informed reader, it was obvious that it was sufficient.

[245] Parties were agreed that expenses should follow success in the normal way.

Discussion
[246] In my opinion, the submissions for the respondent are to be preferred.

[247] It has to be borne in mind that the Board of medical referees consists of medical practitioners rather than lawyers and their decision ought not to be construed in the same way one might construe a decision of a judge.

[248] I agree with Mr Armstrong's submissions to that effect on the basis of the authorities to which he referred.

[249] The general principles to be applied are, it seems to me, the same, whether one is dealing with a tribunal set up to consider planning matters or rent assessment committees. The general principles of judicial review are applicable.

[250] Secondly, I think it has to be said that the Board's report ought to be read as a whole. I can understand why selective quotations are made from it in argument but, in order to understand it, one must have regard to the whole of it.

[251] Medical referees are not in precisely the same position as judges. As Lord Reed put it, in Strathclyde Police Joint Board v McKinlay, they have an investigative characters rather than a purely adjudicatory one. They can carry out their own examinations and interviews and may rely on their own medical knowledge. In the current case, it is plain that they relied in part on Mr Vanhegan's examination of the respondent and they were perfectly entitled to do that.

[252] There was plainly evidence before them which entitled them to reach the conclusion which they did.

[253] As far as the criticisms of their report are concerned, I have already dealt in some measure with those as I have gone along.

[254] Was there material which they failed to take into account? In this regard, Ms Swanston's principal argument was based on the fact that excerpts from a number of documents appeared in the Appendix and some documents were not referred to at all. I have not attempted to set out in full the extent to which documents were referred to in the Appendix but I do not think that is necessary.

[255] As Mr Armstrong pointed out, the duty of the Board is to have regard to the appropriate material. I do not consider it necessary that they mention every single aspect of it.

[256] Their report makes it plain that they did have regard to all of the material and it is not for me to go behind that, just because they did not mention particular parts of it. Ms Swanston would have had no complaint, she said, if no reference had been made at all to individual documents and I do not think that the reference to excerpts makes her position any better.

[257] Of particular concern to the petitioners was to the lack of any specific reference to the vigorous physiotherapy, the respondent's desire to be active and the episodes with the rowing machine and on holiday. It is said, effectively, that the reader is left in doubt as to what the Board made of these and to what extent they took them into account.

[258] As Mr Armstrong pointed out however, the Board's position is that the current symptoms were directly related to the original injury to the left knee which resulted in immobilisation, causing damage to the lower back which may already have contained pre-existing degenerative changes, albeit no worse than those to be found in the general population. Having reached that conclusion, it seems to me to be obvious that they have taken the view that the various individual episodes referred to by the petitioners are simply episodes of and symptomatic of the ongoing problem, with different mechanisms triggering the problem from time to time. That is a conclusion which the Board were entitled to reach.

[259] They obviously reached the view that there was no break in the chain of causation and I do not consider it was necessary for them specifically to rule out any such break, particularly when the evidence about injudicious physiotherapy and the petitioner's own willingness to engage in physical activity is so vague. Indeed, it seems to me that they would probably not have been entitled to take the view that there was a break in the chain of causation in reliance on that evidence.

[260] There was plenty of evidence before them which entitled them to reach the conclusions which they did and it cannot be said that it was manifestly unreasonable in any sense. There was evidence to support it, unlike the situation in Okafor, which is easily distinguishable.

[261] I have already indicated my opinion as to the Board's reference to the "eggshell skull principle". On the evidence they were, it seems to me, entitled to have regard to that. Even if they were wrong in taking it into account, I do not think that that prejudices the petitioners' position. It might on the other hand have prejudiced the respondent if they failed to take account of a pre-existing condition where it existed. As I read the Board's report, they opined that it may well have existed, albeit to no greater an extent than in the general population. Ms Swanston had referred to the MRI scan of 19 December 1996 but the Board mentioned specifically the changes at L4/5 and Dr Johnston's report of 20 August 2001 dealt with it also. It was a matter for the Board to attach such weight to that as they saw fit.

[262] In all the circumstances it seems to me that the Board's reference to the "egg shell skull principle" was perfectly rational.

[263] As far as the legal test is concerned, the Board were not answering the same type of question as was posed in the various authorities to which Ms Swanston referred. These dealt with the question whether a particular injury or condition was attributable to the execution of duty. That is not the case here. The question for the Board was whether the condition from which the petitioner suffered at the time of their examination was attributable to an injury which was admittedly caused in the execution of his duty. Obviously, in answering that question, they had to be satisfied that that injury was a substantial contributor to his condition but that was a question of medical fact and they were entitled to answer it in the affirmative based on their perusal of the records, the evidence they heard, the medical examination which they carried out and the submissions which they heard. Having found that the original injury was a substantial contributor to the respondent's current condition, it was not necessary for them to deal with any other factor which might also have contributed. In any event, as I have indicated, they plainly concluded that the other intermittent episodes of back pain were a manifestation of the continuing injury. They found that after the initial onset of back pain the respondent was never entirely symptom free and at the end of the medical examination, they concluded that he could not be considered to have recovered completely at any time after his first operation.

[264] It seems to me that they reached a rational conclusion which was open to them on the evidence and while their reasons might not be expressed with the same clarity one might expect from a lawyer, they are perfectly intelligible.

[265] There was plainly a conflict in the medical opinion but it was for them to resolve and they resolved it in favour of the respondent. The parties knew perfectly well what the issues were and in my opinion the Board did not require to go any further than they did.

Decision
[266] I shall sustain the pleas-in-law for the respondent and repel the pleas-in-law for the petitioners. I shall accordingly refuse to reduce the decision complained of and find the petitioners liable to the respondent in the expenses of the cause as taxed, in so far as not already dealt with.

[267] I should lastly indicate my gratitude to both Ms Swanston and Mr Armstrong for their researches and the expeditious conduct of the hearing before me.