[1] The pursuer in this action was formerly employed by the defenders as a nursing auxiliary in their learning support team. Her duties included assisting disabled students in a number of respects, including assisting them to go to the toilet. In this action she alleges that on 24 October 1995 she sustained an injury to her back while assisting one such student, Roy Thomson, to urinate. The pursuer was off work from 26 October 1995 until 13 November 1995 when she returned to work. She worked until about June 1996 when she complained of severe pain in her back. In December 1996, she was operated on for a prolapsed intervertebral disc but she continues to suffer pain and disability and is unable to work. She sought damages from the defenders in respect of the whole disability from which she has suffered since 24 October 1995, claiming that all her disabilities were causally related to the incident on that date. The action went to proof before the sheriff in Aberdeen who, by an interlocutor dated 13 December 1999, assoilzied the defenders.

[2] The sheriff heard evidence from three consultant surgeons and on the basis of their evidence concluded that there was no connection between any incident on 25 October 1995 and the extensive disability from which the pursuer suffered after June 1996. In the appeal, counsel for the pursuer did not seek to challenge that finding. He restricted his submissions to the proposition that the pursuer had sustained injury in an accident on 25 October 1995 as a result of which she had been off work for three weeks and had sustained loss, the amount of which had been assessed by the sheriff at £930, including interest to the date of the proof. In these circumstances, it is not necessary for us to consider the medical evidence in any detail. There are, however, three points about it which are worth mentioning at this stage. Firstly, the operation which the pursuer required to undergo in December 1996 was an operation related to the intervertebral disc at the C6/7 level, that is to say in the region of the shoulders. The discussion of the injuries which the pursuer might have sustained in October 1995 was, however, complicated by the fact that at that time she consulted her general practitioner who made a record of a complaint of low back pain. Some questions were put to the pursuer in relation to that entry and the entry was discussed in the context of the evidence of the consultant orthopaedic surgeons. However, no evidence was led from the general practitioner who made the note. The pursuer herself, in her evidence, described her pain as initially being felt in the stomach and radiating up the back towards the neck and shoulders and her complaints were similarly described by her husband who also gave evidence. In his submissions, counsel for the pursuer initially suggested that what she had sustained was a low back strain but subsequently modified that submission and argued that it was sufficient for the pursuer to show that she had sustained a transient back strain of some kind in 1995, if that back strain could be related to an accident causing injury. That seems to us to be a correct approach to the issues raised in the appeal. On any view, the entry in the GP records not spoken to by any witness and not admitted to be correct is not evidence that any low back injury was sustained. The second point which it is useful to note at this stage is that the pursuer at the proof made both a common law case and a case under the Mechanical Handling Regulations and evidence was led which had a bearing on the common law case. However, the defenders conceded that if the pursuer's account of what had taken place was accepted and she established that an accident had occurred in the course of lifting Thomson, there would be liability under the regulations. Thirdly, the pursuer had, on the evidence, a degenerative condition of the spine which had caused her problems in 1993 and 1994.

[3] The student Thomson suffered from cerebral palsy and was unable to walk. On the evidence, he had some strength in his arms but little or none in his legs and was confined to a wheelchair. The wheelchair had a moulded seat and Thomson was held in position by a strap or straps so that he would not slip down. His position in the wheelchair was not, it seems, a fully upright one but it was not clear on the evidence precisely what his position was. It does, however, seem to be clear, on all the evidence, that normally all that was necessary to enable Thomson to urinate was to go with him to a toilet, loosen his trousers, give him a bottle, and after he had urinated empty the bottle and refasten his trousers. On the particular occasion on which the pursuer founds, something further was apparently necessary. The sheriff in his note says:

[4] The sheriff considered that evidence and also took into account the evidence in relation to the pursuer's complaints. In particular, he referred to the fact that the pursuer had said that she had not been aware of any problems with her back or neck prior to the alleged accident when she was first asked about the matter and that she had to be reminded of occasions when she had consulted her doctor in 1993 and 1994. In the light of that, the sheriff held that he could not place any reliance on the evidence of the pursuer.

[5] Counsel for the pursuer submitted that the sheriff had not been entitled to reject the pursuer's evidence in this way. He said that it had not been specifically, at least, put to the pursuer that there had been no accident on the occasion in question. There had been a perfectly adequate description by the pursuer of what she was doing and there had been evidence from another colleague, Mrs. Angelo, which was consistent with the pursuer's evidence. Mrs. Angelo had also given evidence that the pursuer had said that she had hurt her back at the time of the alleged incident and that evidence had not been challenged. No reasonable sheriff, it was submitted, could have rejected the pursuer's account.

[6] The pursuer's evidence in regard to what precisely happened was examined in some detail in the course of the appeal. It is, however, in our view sufficient to consider a relatively short passage. Having said that Thomson had asked her to ease his trousers down a bit the pursuer said that she tried to raise his buttocks a bit to ease them down. Her evidence continued:

Thereafter she explained that she had been a stooped position and felt a pain coming through her stomach to her back and up her back as far as the shoulder blades.

[7] With regard to that evidence, we can only say that we fully share the sheriff's difficulty in understanding precisely what it was that the pursuer was trying to describe. The sheriff had the advantage of seeing and hearing the pursuer and had, or could have had, the benefit of seeing any kind of demonstration or gesture which the pursuer might make. Having had regard to the evidence as it is recorded, in our view it could not be said that no reasonable sheriff could have reached the conclusion that this sheriff did. On the contrary, in our view, the sheriff was fully entitled, for the reasons which he gives, to hold that the pursuer had not given a reliable account of any incident causing injury.

[8] It is true that there was, as counsel for the pursuer pointed out, evidence from Mrs. Angelo as well as from the pursuer that the pursuer did complain of back pain in October 1995, about the time of the alleged incident. There was, however, no evidence directed to the question whether or not an incident of the kind described by the pursuer could reasonably be regarded as causally related to a transient strain of the back of the kind on which the pursuer now seeks to found. At the time of the proof, of course, the parties' attention was directed not to any question of a transient strain but the question whether it could be shown that something had occurred which had, subsequently, given rise to the serious disc problem which required to be dealt with in 1996. Given that the pursuer was a person who had a bad back, which had caused her problems on previous occasions, it does not seem to us to be possible to conclude that any pain which she suffered in October 1995 was causally related to the kind of incident which she described as opposed to merely being a coincidental effect of the severe degeneration of the spine from which she already suffered.

[9] In all the circumstances, therefore, in our view nothing that was submitted by counsel for the pursuer would justify interference with the decision of the sheriff. The appeal therefore falls to be refused and the sheriff's decision affirmed.