MARGARET-ANN REYNARD v. EXQUISITE CUISINE LTD t/a LATOURS CUISINE
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 146 |
| PD801/03 | OPINION OF LORD HODGE in the cause MARGARET-ANN REYNARD Pursuer; against EXQUISITE QUISINE LIMITED TRADING AS LATOURS CUISINE Defenders: ________________ |
Pursuer: Maguire, Q.C., MacKenzie; Balfour & Manson, W.S.,
Defenders: Thomson; DLA Piper Rudnick Gray Cary Scotland LLP
9 November 2005
[1]The pursuer is aged 39. She was a midwife by profession. To celebrate her 35th birthday she visited the defenders' restaurant on Saturday 14 October 2000 with her fiancé and acquired salmonella poisoning there. The defenders admit liability for causing the salmonella infection. At the proof the defenders did not dispute that the salmonella caused the reactive arthritis from which the pursuer has suffered. The issues in this proof were (i) the causation of the pursuer's loss and damage, and in particular the extent to which the reactive arthritis caused loss, and (ii) the quantification of that loss.
Reactive Arthritis
[2]Reactive arthritis is an inflammatory process provoked by a bacterial infection of a mucosal surface in the body such as the gastro-intestinal tract or the genito- urinary tract. People who have a fault in the assortment process in their immune response can find that the immune response of the body not only attacks the infection but also inflames other parts of the body such as tendon linings and entheses and occasionally causes mouth ulceration and irritation of the eyes. In the pursuer's case the infection was salmonella and the original site of the infection was the gastro-intestinal tract. The reactive arthritis manifested itself principally in the tendon sheaths and in the entheses. The entheses are the points at which tendons insert into bone.
The cause of the pursuer's illness
[3]After eating the meal on Saturday 14 October 2000 the pursuer felt nauseated on the following day and did not go to work. She managed to work her shift on the following Monday but while doing so she suffered from abdominal cramps and felt sick. On Tuesday 17 October 2000 the pursuer was suffering from vomiting, rigors and a high temperature. That evening her general medical practitioner arranged for her to be admitted to Hairmyres Hospital where she suffered from diarrhoea, a high temperature, abdominal cramps and vomiting. She was treated by the administration of intravenous antibiotics and a drip. Incidentally, a scan identified that she had an ovarian cyst and on 22 October she underwent a laparotomy to remove the cyst. By 26 October, when she was discharged from Hairmyres Hospital, she was suffering pain in the knuckles of both hands. Her hands were swelling and were hot to touch. She also suffered pain in her wrists and described her fingers as looking like sausages. An on-call medical practitioner gave her antibiotics and painkillers. Thereafter pain spread to her jaw, neck, shoulders, elbows, spine, left hip, knees, ankles and feet. On 29 October she went to stay with her aunt, Annie Macleod, as her fiancé required to go to Leeds and was unable to look after her. She suffered severe pain in her shoulders; it caused her to cry and she required to lie on the floor. On 1 November she again visited her GP. Swelling was visible on her hands and her wrists and she was given a morphine-based painkiller. She returned to bed at her aunt's house. On 3 November her GP, Dr MacRae, took a blood sample. The pursuer had a further appointment with Dr MacRae on 8 November when the results of the blood test were available. The results revealed that her erythrocyte sedimentation rate ("ESR") was elevated at 112. This was indicative of an inflammatory process in her body. An elevated ESR does not identify the cause of the inflammation but as her rheumatoid factor was negative, the process was unlikely to have been rheumatoid arthritis. Dr MacRae referred the pursuer urgently to the Rheumatology Department of the Glasgow Royal Infirmary and in her letter of referral described the pursuer's symptoms as an acute polyathropathy. The pursuer had an appointment at Glasgow Royal Infirmary on 10 November and was admitted to hospital on 11 November when a bed became available. Professor Capell remembered the pursuer as manifesting a particularly severe reaction to salmonella and described her as a very unwell woman. She and Dr Madhok would have expected the pursuer's ESR to be less than 12 and her C-reactive protein ("CRP") to be less than 10. As Dr Madhok explained, CRP is an acute phase reactant, a protein metabolised by the body to assist white cells to localise areas of damage caused by infection or other insult. The measurement of this single protein is a non-specific marker of an inflammatory reaction. The pursuer's ESR result was over 100 and her CRP result on 9 November 2000 was 121. Dr Madhok remembered his first meeting with the pursuer vividly as he had been horrified by her marked inflammatory response.
[4]On 15 November 2000 a stool sample of the pursuer tested positive for salmonella enteritidis and she was placed on antibiotic therapy and discharged home to avoid cross infection. Dr Madhok explained that she was suffering from a reactive polyathropathy secondary to salmonella poisoning. Investigations had revealed that she had a gene, human leukocyte antigen B27 ("HLA B27"), which occurred in less than 10 per cent of the population and was a marker for reactive arthritis. Dr Madhok also explained that tests for rheumatoid factor and anti-nuclear factor excluded other diagnoses of the pursuer's condition such as rheumatoid arthritis and connective tissue disorder. X-rays of her hands suggested soft tissue swelling and confirmed the florid swelling visible on her hands. An isotope scan of her shoulders revealed an uptake of tracer in the acromioclavicular joints which Dr Madhok saw as confirmation of an inflammatory process. The pursuer was given local intra-articular injections of non-steroidal anti-inflammatory drugs every four weeks. These were first line or symptom-relieving drugs to reduce inflammation at the site of the damage. She was also given a disease-modifying drug, which suppressed the body's immune system and thereby its tendency to cause widespread inflammation. Initially the disease-modifying drug which the pursuer was given was sulphasalazine. The drug reduced but did not remove the effects of her continuing inflammatory disease. It has common side effects including nausea, headaches and skin rashes and can occasionally affect the blood count. It also can cause headaches as well as rarer, more serious side effects. The pursuer suffered several serious side effects from taking sulphasalazine, particularly nausea, which restricted the dosage she could tolerate. During 2001 she continued to suffer from enthesitis and tendonitis: Dr Madhok in a report following an examination on 29 November 2001 recorded that there was more evidence of both enthesitis and tendonitis.
[5]The pursuer remained in considerable pain and had very limited mobility. She was confined to her flat. Her failure to improve caused her to become depressed. She would not get out of bed and would not answer the phone. Dr Cunning, another general medical practitioner who treated the pursuer, prescribed Prozac to address her depression. She suffered continuing pain in her shoulders and hands and had difficulty sleeping. Dr MacRae prescribed splints for her hands. As a result of her continuing disability, in May 2001 she and her fiancé postponed their wedding for a year. She remained on anti-depressants and in January 2002 Dr MacRae changed her anti-depressant from Prozac to Effexor as the pursuer had been suffering from heart beat irregularities. Dr Madhok sought to reduce pain in her right shoulder by injecting her shoulder in April 2002. There was also evidence of low back pain.
[6]On 4 May 2002, she married her fiancé. On 16 May she suffered a rupture of her right Achilles tendon when putting on a shoe and required to wear a below knee plaster cast. She was able to go on a cruise for her honeymoon but on 21 May suffered a rupture of her left Achilles tendon when getting out of a chair. As a result both legs were in below knee plasters and the pursuer became very depressed. She spent two weeks in hospital and received a wheelchair from the Red Cross. On 2 September 2002 the pursuer's left Achilles tendon ruptured again when she stood up from a couch. She required to undergo surgery at Hairmyres Hospital. She continued to suffer pain in her joints.
[7]In January 2003, in an attempt further to suppress the pursuer's reactive arthritis, Dr Madhok introduced her to another disease-modifying drug, namely methotrexate, which she started to take in addition to sulphasalazine. Methotrexate is used to combat persistent disease activity. It is an aggressive drug but is effective in modulating the immune system. Its side effects include nausea, the reduction of bone marrow, mouth ulceration and an inability to have children. The pursuer suffered severely from mouth ulcers and required to take folic acid daily to control the ulcers. She also suffered nausea and vomiting as a side effect of the drug and took anti-emetics in an attempt to reduce the problem. Nonetheless the nausea was incapacitating, forcing her doctors to reduce the dosage of methotrexate. In October 2003 there was evidence that the pursuer was suffering from hot flushes and shaking which Dr MacRae related either to the methotrexate or to the anti-depressants. The pursuer suffered and suffers from bilateral dry eyes and also inflammation of the cornea. She required and requires to use eye drops.
[8]The pursuer's depression improved in the course of 2004. In her evidence the pursuer stated that she was getting more pleasure out of life and she was able to get in touch with her friends and go out for lunch. She continued to take anti-depressants on the instructions of her psychiatrist in order to avoid a relapse.
[9]In January 2004 her physical symptoms included sore hands, a stiff neck, restricted movement in the shoulders, and pain in her elbows and hips and in her Achilles tendons. Dr Madhok suggested that she had synovitis in her wrists and hands and enthesitis in her elbows and hips. The pursuer's symptoms vary over time as what Dr Madhok described as "her progressive severe illness" affects different areas of her body at different times. She has periods of time when her condition is better than at other periods. The pursuer currently suffers low back pain and pain in her knees as well as in her hips, heels, wrists, hands, elbows, shoulders and neck. She also suffers pain in her toes, a sore mouth and sore, dry eyes. She takes painkillers regularly including during the night as pain prevents her from sleeping. When she wakes in the morning she often suffers pain and stiffness. Regular massage appears to alleviate her symptoms. Her mobility has improved since she started to take methotrexate in January 2003. In April 2003 she expressed enthusiasm to return to the gym to control her weight but has not been fit to do so. She is able to go out to a restaurant occasionally and to shop with assistance. She described herself as having good days and bad days. Dr MacRae suggested that she wore her hand splints intermittently as she did not always have problems with her joints but that she continue to wear splints particularly at night. She suffers pain and discomfort when walking. She needs her husband's assistance to wash her hair. Her functional capacity, particularly in her hands, is unlikely to improve so as to allow her to resume a career as a midwife. A carer visits daily to make her lunch, do housework and sometimes shop.
Issues of causation
[10]The parties disagreed on the period during which the pursuer has suffered from reactive arthritis and the contribution which that has made to her incapacity. The principal issues canvassed in the proof were: (i) whether the pursuer continues to suffer from reactive arthritis, (ii) whether the reactive arthritis contributed to the ruptures of her Achilles tendons, (iii) whether her depression has continued and whether she suffers from a psychological condition which is unconnected with her reactive arthritis, and (iv) whether her other problems, including hypertension, paraesthesia of the thigh and dry eyes have contributed to her incapacity. I deal with these issues in turn.
Whether the pursuer continues to suffer from reactive arthritis
[11]Dr Madhok's diagnosis was that the pursuer has suffered from polyarthritis which manifested itself as tendonitis and enthesitis. He suggested that the pursuer's disease was a progressive severe illness involving systemic inflammation but was controlled by drugs. Despite the aggressive immunosuppressive therapy her disease was persistent. This had resulted in profound disability which affected her ability to live independently. If the pursuer had to lower the level of methotrexate which she was taking it was likely that the disease would recrudesce. In making his diagnosis of reactive arthritis, he relied on the pursuer's clinical history, his clinical examinations, the fact that she had had a salmonella infection and had the gene HLA B 27, the ESR and CRP readings and also the bone scan of the shoulders which showed symmetrical uptake of tracer in the acromioclavicular joints indicative of a systemic inflammation. Dr Madhok had discussed the pursuer's case with his medical team at Glasgow Royal Infirmary; the pursuer had been examined by other doctors and none of them had suggested that the pursuer's symptoms were inappropriate or disproportionate. In support of his assessment that the reactive arthritis was continuing he produced tables which he compiled from reports in the medical records of Glasgow Royal Infirmary and her GP which showed that the pursuer continued to have raised levels of ESR and CPR over four years after the salmonella infection and the onset of the reactive arthritis. This supported his view that there was a continuing inflammatory disease.
[12]He also referred to an article by David T Yu and Craig W Wiesenhutter, "Course and Treatment of Reiter's syndrome and reactive arthritis" (in 2000 UpToDate Volume 8 No 2) which suggested a scoring process for the prognosis of reactive arthritis. There were seven predictive factors observed in the first two years of disease to each of which a numerical degree of contribution was assigned and the total was summed. A sum of three or less suggested a benign outcome while a sum of seven or more predicted a severe outcome. The pursuer had a score in excess of seven and was likely to have persistent joint problems. I was also referred to a paper on Reiter's syndrome (which, for present purposes, is another name for reactive arthritis but also involves extra-articular complications) by W. F. Kean and D.W. MacPherson in "Prognosis in the Rheumatic Diseases" (ed. N Bellamy, London, Kluwer Academic Publishers 1991) in which, among others, severe disease at onset, duration of symptoms beyond one year, the involvement of the Achilles tendon and the presence of individual disease sites such as the heel indicated a poor long-term prognosis. In a paper on reactive arthritis and enteropathic arthritis in the "Primer on the Rheumatic Diseases" (11th ed, published by the Arthritis Foundation and edited by Dr John H. Klippel) Dr Frank C. Arnett stated that "approximately 15 per cent of patients continue to have chronic, often destructive and disabling arthritis or enthesitis". In Dr Madhok's opinion the pursuer was one of this unfortunate minority.
[13]Professor Capell supported Dr Madhok's diagnosis of a continuing reactive arthritis, manifested as an enthesitis. She opined that although on clinical examination the signs were subtle, the pursuer's symptoms would have been florid if the inflammatory process were not suppressed by drugs.
[14]The defenders led evidence from Dr Axford, a consultant rheumatologist, and Mr Iain Mackay, a consultant orthopaedic surgeon. Dr Axford accepted that the pursuer had developed a reactive arthritis. He explained that reactive arthritis is normally self-limiting and resolves within weeks after the infection which provoked it. He had examined the pursuer on one occasion in October 2004 and did not find any inflammatory disease in her joints. This contrasted with the findings of Dr Ewan MacDonald, a consultant occupational physician, who examined the pursuer in November 2004. He found that she had tenderness in her shoulders, elbows, hands and feet and reduced grip strength in her hands and opined that her symptoms were consistent with an active inflammatory process. Dr Axford found her disability disproportionate to his findings on examination, as she had a normal range of movement at her joints. He accepted that the pursuer was genuinely suffering pain but did not identify the cause of that pain. At that time he had made a differential diagnosis of enthesitis. From his review of the medical records he suggested that the pursuer had suffered reactive arthritis (an expression which he used to refer to inflammation of the joints themselves and not of the entheses) for three years since the salmonella infection but there was no continuing inflammatory disease in her joints. He had seen Dr Carson's psychiatric report and suggested that the pursuer's psychological state was causing her additional disability. He had also seen Mr MacKay's report and had noted that the pursuer was more mobile when seen by him than when Mr Mackay saw her.
[15]Miss Maguire in cross examination referred Dr Axford to Dr Madhok's tables which showed the continued elevated levels of ESR and CRP. He frankly accepted that these supported the view that the pursuer continued to suffer from systemic inflammation. He deferred to Dr Madhok whom he described as an experienced rheumatologist and who had seen the pursuer regularly while he had not. While accepting that the pursuer continued to suffer from enthesitis, he suggested that there should be further investigation of the causes of her pain and immobility.
[16]Mr Mackay examined the pursuer on one occasion in September 2004 and had access to her medical records. On examination he did not detect any inflammation in her joints, synovitis or any evidence of enthesitis. He accepted that she continued to suffer a reactive arthritis which contributed to her disability but suggested that the arthritis was controlled by the disease modifying drugs which she took. He suggested that her other health problems, which he did not associate with her reactive arthritis, were contributing materially to her disability. These were her bilateral Achilles tendon ruptures, her obesity, her history of depression and the stress she suffered from because of her husband's health problems and her hypertension. There was also a possibility that some of her shoulder and neck symptoms should be attributed to a road traffic accident which she suffered in October 1999. In a supplementary report dated December 2004, after he had seen reports from Dr Axford and Dr Carson, Mr Mackay expressed the view that the pursuer's pre-existing spinal complaints from the road traffic accident, her depression and her obesity were very significant pre-incident factors which contributed to her disability as did her ruptured Achilles tendons.
[17]While the pursuer has suffered from a combination of problems since 1999, I accept the unequivocal evidence of Dr Madhok and Professor Capell, who have treated her over several years, that she continues to suffer from a reactive arthritis which manifests itself primarily as an enthesitis. In particular, Dr Madhok has seen the pursuer frequently over those years and has been able to observe the development of her health problems. Mr Axford readily accepted that this was a substantial advantage in diagnosing a patient over a professional who saw the patient on only one occasion and who had to form judgements from that clinical examination and an analysis of the patient's medical records. While Dr Axford suggested that it would have been wise to give a patient, such as the pursuer, with long-term problems a thorough clinical examination and to take X-rays of her joints at least annually, I am satisfied that the medical practitioners at Glasgow Royal Infirmary who were responsible for the pursuer's care had ample evidence from their examinations of the pursuer over time (including the regular recordings of ESR and CPR levels) and from the medical literature to support their opinion that the pursuer continues to suffer from an aggressive inflammatory process which gives rise to significant disability even when it is suppressed by disease modifying drugs. Standing Dr Axford's concession when shown Dr Madhok's tables of the raised ESR and CPR levels, there was in the end little dispute between the parties that the pursuer continued to suffer from reactive arthritis manifested primarily as an enthesitis. The dispute thus moved to the contribution which other factors were making to her disability, which was not challenged by any of the medical witnesses.
Whether the reactive arthritis contributed to the rupture of the Achilles tendons
[18]The defenders suggested that the pursuer's disability and her depression were exacerbated by the bilateral ruptures of her Achilles tendons to which I referred in paragraph 6 above. This, they argued, was one of several factors which were not connected with the pursuer's reactive arthritis and thus their negligence.
[19]The pursuer's medical witnesses however suggested that there was a causal link between the reactive arthritis and the damage to the tendons. Dr MacRae suggested that the arthritis would cause inflammation of the ligaments and weaken the site of the tendon insertions. Professor Capell also expressed the view that prolonged inflammation would weaken the tendons and enable relatively minor trauma to snap them. There was evidence of prolonged inflammation in the records of the pursuer's elevated ESR and CPR. The pursuer's Achilles tendons had ruptured without any significant trauma. Dr Madhok stated that inflammation of the site of the insertion into bone of the Achilles tendons was a well-recognized complication of reactive arthritis. The pursuer had suffered bilateral ruptures with only minimal trauma. He expressed the view that her continuing inflammatory process, which in 2002 was manifested in both enthesitis and tendonitis, made a major contribution to the ruptures. Finally, Dr Ewan Macdonald, the consultant occupational physician, emphasised that bilateral ruptures were very unusual and attributed them to her reactive arthritis as he could detect no other cause.
[20]Miss Maguire referred both Professor Capell and Dr Madhok to a histology report on the pursuer's left Achilles tendon dated 18 September 2002 which referred to the presence of chronic inflammatory cells and also the formation of new blood vessels. Both Professor Capell and Dr Madhok opined that the report supported their view that inflammation from reactive arthritis had caused or contributed to the ruptures. The operation note dated 4 September 2002 recorded the finding of old, rounded, fatty ends of tendon, a finding which Dr Madhok suggested supported the view that the tendon had become frayed over time by the inflammatory process.
[21]In response to this the defenders in May 2005 sought to amend their pleadings to assert that the cause of the ruptures was the pursuer's obesity and also to add to their list of witnesses a histopathologist to give expert evidence on the interpretation of the histology report and to suggest that obesity caused or contributed to the ruptures. For the reasons discussed in the postscript to this opinion I did not allow them to do so.
[22]Dr Axford, in evidence which was subject to objection because there was no record, suggested that the pursuer's obesity contributed to the ruptures and founded on a reference to fatty cells in the histology report. He had not been able to find any medical literature which associated ruptures of the Achilles tendons with reactive arthritis. I do not find the absence of extensive medical literature surprising as severe and prolonged reactive arthritis is comparatively rare. Both Dr Madhok and Mr Mackay were aware of individual case reports which suggested an association between reactive arthritis and ruptures of the Achilles tendons.
[23]While the cause of the pursuer's problems with her Achilles tendons was not explored in any detail, I am satisfied that on balance of probabilities her reactive arthritis contributed materially to the ruptures which she suffered. The pursuer spoke of suffering pain in her Achilles tendons for several months before the ruptures. I accept the evidence of Professor Capell and Dr Madhok and also that of Dr MacDonald and Dr MacRae. Although the defenders had no record for their assertion that obesity contributed to those problems, I am not persuaded that further evidence which pointed to obesity as a contributing factor would have altered my view. For it is clear that, notwithstanding the pursuer's prior history of obesity, which I discuss in paragraph 39 below, her long-term disability after November 2000 caused by the reactive arthritis resulted in a significant increase in her weight and thereby exacerbated any contribution which obesity made to the ruptures. The evidence did not support the contention that her pre-incident obesity of itself was sufficient to cause the bilateral Achilles tendon ruptures.
Whether the pursuer suffers from a psychological condition unrelated to her reactive arthritis
[24]A major plank of the defenders' case on causation was that the pursuer had suffered from a depressive illness for several years and that she also suffered from a somatoform disorder which caused her suffer greater disability than her physical condition itself would have caused on its own. As Mr Thomson put it, their case was that the pursuer by the time of the food poisoning incident in 2000 was in a spiral of decline. It is necessary therefore to record her circumstances shortly before the incident.
[25]The pursuer undoubtedly suffered serious problems in 1999 and 2000. She was off work for almost eight months between late May 1999 and February 2000 as a result of among other things a depressive illness. During 1999 she fractured her ankle at work in May and she had a road traffic accident in October, in which she suffered a whiplash injury and injured her shoulder. In August 1999 she suffered from Ramsay Hunt syndrome, a form of shingles. Her mother was terminally ill with cancer during 1999 and died on 26 June 2000. She also suffered stress looking after her sister who suffered from manic depression, abused alcohol and was potentially suicidal. The pursuer also suffered from hypertension. As a result of these stressors, the pursuer became depressed and in her own words "hit a brick wall". She was prescribed Prozac between May 1999 and February 2000 when her depressive symptoms alleviated.
[26]She formally returned to work in February 2000 but took six weeks' holiday and therefore actually resumed working on 3 April 2000. Initially she worked three days a week and gradually built up her hours to thirty hours (or four days) a week. In June 2000 she injured her back at work when putting on her trousers and was absent from work because of sciatic pain. After her mother died on 26 June 2000 she remained off work until 17 July 2000. Thereafter she had no absences from work until after the food poisoning incident on 17 October. The pursuer gave evidence that her sciatic problems caused by the road traffic accident were easing by September 2000, and the improvement of her sister's condition and the end of her mother's terminal illness had removed stressors which had made her life so difficult in the preceding eighteen months. She said that but for the food poisoning and its consequences she would have reverted to a thirty-seven and a half hour week by January 2001 and that she was fit to do so by October 2000.
[27]The pursuer's account was supported both by her GP, Dr MacRae, who was an impressive and careful witness. Dr MacRae rejected the idea that the pursuer's life had reached a major and long-term crisis in 1999 and 2000 and characterised the pursuer's circumstances at this time as a series of unconnected health problems in quick succession. Dr MacDonald, the consultant occupational physician, agreed. He suggested that the pursuer's condition was a result of an unrelated series of events and that but for the food poisoning she would probably have been able to work as a midwife until her retirement age.
[28]Both the pursuer and the defenders led psychiatric evidence. Dr Taylor, a consultant psychiatrist whom Miss Maguire led on behalf of the pursuer and who interviewed the pursuer in May and October 2004, recognized that the pursuer had a predisposing vulnerability to depression because of her family history. However he characterised the pursuer as a resourceful woman who had achieved academic success in difficult social circumstances. She had suffered a mild to moderate depressive episode in 1999 and 2000 when she was subjected to a series of stresses but she had been able to reduce her medication by early 2000. He rejected the suggestion that the pursuer was on a downward path after 1999 and suggested that she had made a complete recovery from her depressive illness in 2000. She had suffered a pervasive depressive illness since December 2000. While the depressive episode in 1999 and 2000 had increased her vulnerability to further episodes of depression, it was not a major factor in her condition. What had precipitated and maintained her long-term depression since 2000 was her physical disability. Having responded over time to anti-depressive drugs, her depressive condition was now in remission but she needed to continue to take anti-depressive medicine as she would have a high risk of relapse if medication were removed after a long-term depressive illness. There was nothing in her present mental state that prevented her from working; it was her physical condition that precluded a return to work.
[29]Mr Thomson led the evidence of Dr Alan Carson, a consultant neuropsychiatrist, who interviewed the pursuer in October 2004 and produced two reports. He suggested that the pursuer had shown signs of depression before 1999, founding in particular on an incident of irritable bowel syndrome in 1995. He noted that her father had an alcohol problem as did her sister who also suffered from a bipolar disorder. He suggested that the pursuer had an active somatoform process which caused a person to show excessive disability from any injury. However, in his first report, he opined that the major source of the pursuer's disability was her reactive arthritis. In his second report which he prepared after attending a case conference with Dr Axford and Mr Mackay, he relied on Mr Axford's view that the pursuer's reactive arthritis was in remission. In that report he adopted the position that the pursuer's mental state had been affected by her reactive arthritis for only approximately six months and then later by her Achilles tendon ruptures. The illness of her husband was a significant factor and she had unusually long periods off work in 1999 and 2000 in response to the stressors to which she was then exposed. There were three elements which had contributed to the pursuer's mental state, namely her depression, her reactive arthritis and her somatoform disorder. The less significance attributed to one factor meant that the role of the other two was greater. As Dr Axford was of the view that the reactive arthritis had gone into remission, Dr Carson concluded that the pursuer would have been disabled by depression even without her reactive arthritis.
[30]The difficulty for the defenders is that Dr Carson's revised view, however logical, depends on his acceptance of the opinion which he attributed to Dr Axford that the pursuer did not have a continuing arthritic process and that her symptoms were disproportionate to her physical disability. But Dr Axford accepted on cross examination that the pursuer's raised ESR and CPR levels pointed to a continuing inflammatory process. Thus the role which Dr Carson attributed to depression and a somatoform disorder must thereby be diminished. This as a result calls into question the position which he took in his second report and undermines his conclusion that it is likely that she would have been disabled even if she had not had the reactive arthritis.
[31]In his first report, Dr Carson expressed the view that the principal cause of her depressive illness between 2000 and 2004 was her reactive arthritis although she had a predisposition to depression both in her family history and as a result of her depressive episode in 1999 and 2000. He suggested in that report that it was likely that there would be further relapses but that they would not necessarily interfere significantly with her life. He expressed that view that the prospect of her returning to work depended on her rheumatological condition and not on her mood state. In this regard his opinion is consistent with that of Dr Taylor. See paragraph 34 below.
[32]It appears to be common ground between the experts that the pursuer's depression is now in remission. The pursuer herself suggested that her mood had improved since about March 2004. While there were some differences of view as to when the depression went into remission, I am satisfied that this occurred during 2004 or at the latest by early 2005. The prolonged depression between late 2000 and 2004 coming after her depression in 1999 and early 2000 has left the pursuer vulnerable to further relapses.
[33]I am not satisfied on balance of probability that the pursuer has a somatoform disorder. Professor Capell explained that it was common for people to think that a patient with enthesitis was exaggerating her symptoms. The condition was very painful and she described it as being like sandpaper rubbing against a bone. She disagreed with the suggestion that the pursuer's symptoms were disproportionate to her physical condition. In this regard I note that Dr Carson rejected the idea that the pursuer was deliberately malingering and Dr Axford, while uncertain as to the cause, expressed the view that the pursuer's pain was genuine.
[34]I also accept the conclusions of Dr Taylor that while her depressive episode in 1999-2000 increased her vulnerability to depression, it was her physical disability caused by the reactive arthritis which precipitated and prolonged her depression between 2000 and 2004. What prevents the pursuer from returning to work is not her mental state but her physical condition.
[35]I mention for the record that Miss Maguire invited me to give less weight to Dr Carson's evidence on his hypothesis that the pursuer was suffering from a somatoform disorder. She pointed out that the defenders' counsel had given no notice on record and had not put this suggestion, and the suggestion that the disorder was likely to have disabled her even if there had been no reactive arthritis, to the pursuer or Dr Taylor or her general medical practitioners, or her treating rheumatologists or Dr Macdonald. She referred me to Bryce v British Railways Board 1996 SLT 1378. In the event I do not need to rely on this approach. As I have said, it is clear that Dr Carson's view on the role of a somatoform disorder as an explanation of the pursuer's symptoms depended in large measure on his acceptance as correct the opinion expressed by Dr Axford in his second report that the pursuer no longer suffered from reactive arthritis. As Dr Axford substantially departed from that report on cross-examination, the scope for a somatoform disorder as a hypothesis to explain the pursuer's symptoms diminished, supporting my conclusion that the existence of such a disorder had not been established.
Whether other problems have contributed to the pursuer's incapacity
[36]A major complication in this case has been that a number of factors combined in 1999 and 2000 to cause the pursuer, who in the past had had a very good work record, to be off work for several months. This caused the defenders to argue that the pursuer's health had deteriorated before the food poisoning incident and that the pursuer was wrong to attribute her problems since the food poisoning principally to that incident.
[37]I have already discussed her problem with depression in paragraphs 25 to 34 above. Another issue was the effect of her road traffic accident in November 1999. After that accident the pursuer suffered shoulder pain, particularly in her right shoulder, during 2000 and at least until September 2000. But Dr McRae expressed the view that she had coped well with her difficulties and had been able to return to work. The pursuer gave evidence that Mr Sherlock, a consultant orthopaedic surgeon, who had examined her at the time, had advised her that her symptoms from the road traffic accident would resolve and that she would be fit to work to her normal retirement age of sixty. Dr Madhok opined that the bone scan (referred to in paragraph 4 above) which was taken in November 2000 showed that the inflammation of the shoulders was systemic and not local and was therefore not associated with trauma from the road accident. He also suggested that one would not expect such inflammation a year after the accident. Dr Madhok was clear in his evidence that the shoulder problems were a symptom of reactive arthritis. Thus her treating medical practitioners did not associate the continuing shoulder pain with the accident and I see no reason to disagree with their assessment.
[38]In addition evidence was led of other conditions which had the potential to affect the pursuer's ability to work but which in my opinion do not alter the conclusion which I reach below (paragraph 48) that it was the onset and continuance of the reactive arthritis which has prevented the pursuer from working to her normal retirement age. I consider each in turn.
[39]Obesity: A problem from which the pursuer suffered was her weight. She was and is obese. At the time of the incident her weight was 92 kg (approximately fourteen and a half stone). In December 1998 her weight had been 97 kg (15 stone 4 pounds). Aware of the problem, she had taken exercise at the gym and by the time of the incident was maintaining her weight at around 90 kg (fourteen stone). Her job as a midwife also involved physical activity which helped her control her weight. After the incident and as a result of her enforced inactivity, her weight increased from 92 kg in November 2000 to 103 kg by November 2001 and 107 kg by August 2002. At the time of the proof in February 2005 her weight remained at about 107 kg. Professor Capell suggested that the pursuer's obesity was made worse by her immobility and depression since the incident. Dr Madhok suggested that her inability to exercise since she contracted reactive arthritis had made weight reduction difficult.
[40]Hypertension: The pursuer also had a history of hypertension before the incident since 1998 at the latest and required treatment to avoid the long-term risks of a stroke or coronary heart disease. The pursuer expressed the view that her blood pressure had been well controlled by medication until the drugs which she took to deal with her arthritis made her hypertension medication less effective. She received some support for this view from Dr Brady, a consultant cardiologist, who suggested that her blood pressure had been excellently controlled before the incident but less well controlled since 2000. Dr Bloomfield, a consultant cardiologist called by the defenders, agreed that non-steroidal anti-inflammatory drugs, which the pursuer was taking, could make blood pressure medication less effective. However he did not observe a major change in the effectiveness with which the pursuer's blood pressure was controlled before and after the onset of the reactive arthritis. He did not agree with Dr Brady that the pattern of the pursuer's hypertension had altered materially before and after 2000. If the control was less good after 2000 that was marginal. In my opinion the readings of the pursuer's blood pressure supported Dr Bloomfield's view. There was a slight increase in blood pressure after 2000 and her weight gain and the non-steroidal anti-inflammatory drugs which she required to take reduced the effect of her medicine for hypertension. Fundoscopy revealed that she had grade 2 hypertensive changes and a heightened long-term risk of cardiovascular problems. But her blood pressure remained well controlled and her treatment was likely to continue to be effective.
[41]Paraesthesia in the right thigh: The pursuer described a sensation of numbness in her right thigh and to a lesser extent in her left thigh. Dr Durward, a consultant neurologist, produced a report and gave evidence. He diagnosed the pursuer as suffering from carpal tunnel syndrome which is a recognized complication of arthritis. Nerve conduction tests had not confirmed the diagnosis but had confirmed the paraesthesia in her right thigh which he attributed to her increased weight since the incident. While the pursuer had had weight problems in the past and was obese before the incident, I consider it likely that the relative inactivity to which she was condemned by her reactive arthritis materially contributed to her exacerbated weight problems and thus to the onset of her paraesthesia.
[42]Dry eyes: The pursuer also gave evidence that she suffered from dry and painful eyes. Dr Teenan, a consultant ophthalmologist, produced a report and gave evidence that the pursuer had suffered from bilateral dry eyes for approximately two years. The cause of the problem was likely to be the pursuer's arthritis as patients with arthritis frequently complained of dry eyes and the association of the two was well recognized. The condition was likely to be permanent, even if her arthritis remained under control, but could be exacerbated if her arthritic condition deteriorated. The pursuer needed to use eye drops regularly to lubricate her eyes. She would continue to need to do so. The defenders did not seriously challenge his diagnosis. Dr Teenan rejected the defenders' suggestion that one of her drugs could have contributed to the eye condition; he opined that the process which affects a person's joints also affects the lachrymal gland. I accept Dr Teenan's evidence which is that the pursuer's dry eyes are caused by her reactive arthritis and are not an independent problem.
Summary and conclusions on the principal areas of factual dispute concerning the pursuer's medical condition
[43]On the principal issue in dispute, namely whether the pursuer continued to suffer from reactive arthritis, principally in the form of an enthesitis, I accept the evidence of Professor Capell and Dr Madhok, who have treated the pursuer over several years. The defenders' experts were responsible and skilful medical professionals but did not have the opportunity to assess the pursuer over a prolonged period. After the issue was explored in evidence, particularly in cross-examination, Dr Axford did not dispute Dr Madhok's view that the pursuer continued to suffer from reactive arthritis, manifested principally as an enthesitis. It may be the case that further tests would give more certainty as to her condition but I am satisfied on the balance of probabilities that the pursuer continues to suffer from reactive arthritis and that that is the predominant source of her long-term incapacity.
[44]I also accept Dr Madhok's and Professor Capell's opinion that the pursuer's reactive arthritis made a material contribution to the bilateral ruptures of the Achilles tendons which she suffered in 2002.
[45]In relation to her depression, I accept that she suffered a depressive episode in 1999 and 2000 but I conclude that she had recovered from it before the autumn of 2000. The episode may have left her more vulnerable to a recurrence of depression. But it was the prolonged depression which followed the onset and continuance of her reactive arthritis which dominated her psychological state between 2001 and 2004 and which has made a significant contribution to the prospect of the recurrence of depression in the future. I accept the evidence of Dr MacDonald that but for the pursuer's reactive arthritis and resulting long-term depression it is likely that she would have continued with her career as a midwife until her normal retirement age.
[46]The defenders' medical experts accepted the pursuer's complaints of pain and immobility as genuine and that she was not malingering. While it is possible that the pursuer has some form of somatoform condition I am not persuaded on balance of probabilities that she does. Even if she does, its contribution to her disability would in my view be limited as I am satisfied that she continues to suffer from reactive arthritis and that that is the predominant cause of her disability.
[47]In relation to the other factors which contribute to her disability, I conclude that her pre-incident obesity would not have compromised or materially shortened her career and that the continuance of her reactive arthritis has materially exacerbated her weight problems. I accept the evidence of both Dr Brady and Dr Bloomfield that drugs have kept her hypertension under control and that there is no reason to conclude that her blood pressure problems would have compromised her career. I also conclude that on balance of probabilities her reactive arthritis is causally linked to both the paraesthesia in her thigh and her bilateral dry eyes.
[48]The consequence of these conclusions is that on balance of probabilities the pursuer would have been able to lead a reasonably active life and to have completed her career as a midwife if she had not had the misfortune to suffer food poisoning and the reactive arthritis which followed.
Legal issues
(i)Causation
[49]In submissions counsel referred me to a number of cases on causation and the principles underlying the quantification of damages. Miss Maguire for the pursuer referred me to McGhee v National Coal Board 1973 SC (HL) 37, Wilsher v Essex Area Health Authority [1988] 1 AC 1074 and Simmons v British Steel PLC 2004 SC (HL) 94. Mr Thomson for the defenders referred to Livingston v Rawyards Coal Company (1880) 5 App Cas 25, Wells v Wells [1999] 1 AC 345, Jobling v Associated Dairies [1982] AC 794, Chester v Afshar [2005] 1 AC 134, Hotson v East Berkshire Health Authority [1987] AC 750, Wilsher v Essex Area Health Authority (above) and Simmons v British Steel PLC (above). It is not necessary for me to discuss these cases in any detail.
[50]It appears to me that the following are the principles which govern my consideration of causation and the quantification of the loss suffered by the pursuer in the past and the loss which she may suffer in the future.
[51]First, in this type of delictual case, where there are no grounds for special rules on causation, the burden is on the pursuer to establish on balance of probabilities that the defenders' negligence caused or materially contributed to the loss and damage which she has sustained. See Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26, Wilsher v Essex Area Health Authority [1988] 1 AC 1074 and Gregg v Scott [2005] 2 AC 176. The law's approach to causation is pragmatic where there are several concurrent or successive factors operating to cause injury. A material contribution to the outcome is sufficient to impose liability for that outcome. But this is not the sort of case such as Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 and Chester v Afshar [2005] 1 AC 134 where for policy reasons the courts have departed from conventional causation principles and allowed a pursuer or claimant to recover damages even where he could not establish that he would not have suffered the loss but for the wrongdoing which grounded his action.
[52]Secondly, the wrongdoer must take his victim as he finds him: Allan v Barclay (1863) 2 M 873 and McKillen v Barclay Curle & Co Ltd 1967 SLT 41. This "thin skull" rule extends to the eggshell personality. See Page v Smith [1996] AC 155, Lord Lloyd of Berwick at p.197H. Thus if the victim of a wrong has a pre-existing propensity to depression which is activated or re-activated by physical injury caused by the negligence of the wrongdoer, the negligent person cannot plead lack of foreseeability to avoid liability for the loss caused by the re-activated depression.
[53]Thirdly, if a pursuer establishes a causal connection on balance of probabilities between wrongdoing and his loss, he is entitled to recover damages for that loss even if there was a chance that the loss or part of it might have occurred in any event. See Hotson v East Berkshire Area Health Authority [1987] 1 AC 750, Lord Bridge at 783A-B. On the other hand, if, after the delict caused the initial injury, an illness, which was unconnected with a defender's wrongdoing, supervened to disable a pursuer, the onset of that illness (at least where it is not the result of a separate delict) would limit the losses which the pursuer was entitled to recover from the wrongdoer. See Jobling v Associated Dairies Ltd [1982] AC 794. Otherwise the pursuer would be more than fully compensated.
[54]Fourthly, and more generally, in relation to losses which have not occurred at the time of the proof but which may occur in the future, the court has to make allowance for the contingencies of life in assessing the damages due for such losses. It should take account of, and discount for, the probability of the occurrence of such losses. See Mallett v McMonagle [1970] AC 166, Lord Diplock at 176.
[55]Fifthly, in what is probably best seen as a sub-category of the fourth principle, the court may reduce the damages which it awards for the possibility of disease, or other factors unconnected with the wrongdoing, abbreviating a victim's working life or even his lifespan and thus abridging his future losses. See Jobling v Associated Dairies Ltd [1982] AC 794, Lord Bridge at p.819.
[56]The third, fourth and fifth principles set out above have been developed by the courts as a means of giving an injured pursuer reasonable compensation in order to achieve restitutio in integrum, which is, as Mr Thomson submitted, the fundamental object of damages for loss caused by negligence. I have applied those principles in my discussion of causation above and in the consideration of quantification of damages which follows.
Quantification of loss
[57]The parties' submissions revealed a great gulf in their assessment of the damages which should be awarded. The pursuer's counsel submitted that the appropriate aggregate award should be in the range of £1,621,000 to £1,660,000 while the defenders' counsel submitted that the award should be £79,883.69. As much of the not inconsiderable difference is explained by their differing assessments of the pursuer's present medical condition and its causes, which I have discussed above, I do not set out their submissions in detail beyond referring to the authorities cited to me but concentrate on making findings on the various heads of claim. The pursuer's counsel stated her claim under seventeen heads. I consider each in turn.
(1) Solatium
[58]Counsel recognized that there were no reported authorities which gave much assistance on the appropriate level of solatium as the pursuer's condition was fortunately a rare occurrence. Miss Maguire invited me to award £90,000 and Mr Thomson suggested that £20,000 was an appropriate figure.
[59]Miss Maguire referred me to the following awards by judges (in relation to food poisoning): Holly v Mario's Restaurant (Southport) Kemp & Kemp L13-002, Potter v Air Tours PLC Kemp & Kemp L13-001, and McInulty v Alam 1995 SLT (Sh Ct) 56. She also referred me to the Judicial Studies Board Guidelines in relation to psychiatric illness, chronic pain, damage to the female reproductive system, illness through food poisoning and damage to the Achilles tendons. She referred me to Heil v Rankin [2001] 2 QB 272 and invited me to take account of the one-third increase in awards enjoined by that decision in cases involving catastrophic injuries. She submitted that it was appropriate that I should look for guidance to jury awards: Shaher v British Aerospace Flying College Ltd 2003 SC 540. She referred me to the following jury awards: Duffy v Lanarkshire Health Board 1999 SLT 906, Petrovska v Mullings and Thames Transit Ltd Kemp & Kemp A3-023, Wallace v Paterson 2002 SLT 563, and four awards in McEwan and Paton on Damages (at pp.420-421), namely Tate v Fisher, Davis v Bryson, Gartley v R McCartney (Painters) Ltd and Towers v Jack.
[60]I have decided that a fair award of solatium is £85,000 of which half should be attributed to the past to reflect the acute phase of her illness and the suffering which she must have endured in adapting to the radical deterioration in the quality of her life. Notwithstanding the limited improvement in her mobility since January 2003, which is attributed to the methotrexate, she remains in pain almost constantly and on bad days that pain confines her to bed. There is no realistic prospect of alleviation of her condition. While no award cited to me is analogous, I have derived assistance from Petrovska (above), in which the award adjusted in accordance with Heil v Rankin would have been approximately £82,750. I am also assisted by Wallace v Paterson, in which £95,000 was awarded (present value: £101,000) for what was in my opinion a worse case of suffering and loss of amenity involving as it did brain damage, as well as by the tenor of the jury awards to which I refer in the previous paragraph and by the Judicial Studies Board Guidelines. Interest at 4% on the proportion attributed to the past to 31 August 2005 amounts to £8,294.
(2)Wage loss
[61]Before dealing separately with past and future wage loss, it is necessary that I set out the facts about her career and prospects. The pursuer left school with ten O grades and five Highers. She qualified as a registered general nurse in 1987 and a midwife in 1989. She worked first at Rutherglen Maternity Hospital and when it closed in 1995 moved to Ayrshire Central Hospital. While working as a midwife she gained several certificates, had a good health and work attendance record and obtained good references. In 2000 she was ranked as E grade in the NHS grading system and on 22 October 2001 was reclassified as F grade (the equivalent to a junior sister in general nursing) in an NHS reform of the grading structure. She had hoped to achieve G grade, which is the grade of sister, during her career and had been selected for interview for that grade in 1998. But as a result of contracting salmonella poisoning and the reactive arthritis the pursuer was not able to return to work after October 2000 and was officially retired on the ground of ill-health on 3 February 2004. Her limited mobility and loss of manual dexterity made her unable to work as a midwife. She was very upset at the loss of her job, which she had enjoyed.
[62]The evidence of her former colleagues on her performance and prospects as a midwife was very favourable. Heather Kalinsky, who had worked as a midwife at Rutherglen Maternity Hospital, described her as cheerful, well-motivated and very good with patients and opined that she was likely to win promotion. Gillian Lenaghan, who had been a staff midwife at Rutherglen, expressed complete confidence in her, describing her as very professional and good with the women in her charge. She agreed with the pursuer's self-assessments and expressed the view that she would have won promotion within five to six years but for the reactive arthritis. The defenders led evidence from two of her former colleagues, Marie McGale, who had been ward manager at Ayrshire Central Hospital, and Marjory Andres, who was a senior midwife (I grade) at Ayrshire Central Hospital. They did not contradict this picture. Mrs McGale had not worked with her for any substantial period but said that she had heard no concerns about her work and Marjory Andres opined that she was a very good midwife. It appears that there was only limited movement between grade F and grade G within Ayrshire Central Hospital and that usually depended upon someone retiring but there was the prospect of posts with other hospitals or health boards or as a community midwife at grade G.
[63]The pursuer's medical experts were at one in their evidence that there was no real prospect of the pursuer returning to work as a midwife or nurse and that her physical disabilities were the cause. Her general medical practitioner, Dr MacRae, Professor Capell and Dr Madhok all expressed that view. Dr Ewan Macdonald, the consultant occupational physician, agreed and suggested that at most the pursuer would be able to work part-time as a counsellor but only if her health improved. When asked about the impact of her pre-incident obesity on her employment prospects, he dismissed it as a cause for curtailing her career, explaining that weight was not a strong predictor of health failure in nursing. He described her as a highly motivated and competent midwife with a reasonable expectation to attain G grade and possibly H grade (the grade of senior midwife). The defenders' medical experts did not suggest that the pursuer would be able to return to work, although they were uncertain as to the precise causes of her disability.
[64]I formed the impression from the pursuer and from the evidence of the persons mentioned above that the pursuer was a lady who wished to work. She had worked all her life, valued her independence and did not want to be a burden on others. While her reactive arthritis had rendered her unfit to work, she would seek work in counselling if her physical condition improved. But there was no evidence that a substantial improvement was likely. On the contrary, Dr Madhok expressed the opinion that the most optimistic outcome for the pursuer was that she would be stabilised in her present condition through the continued ingestion of the disease-modifying drugs. I accept his opinion. The expert witnesses called by the defenders did not paint a significantly different picture. Dr Axford in his report of December 2004 expressed the view that the pursuer could not return to work as a midwife and was pessimistic about her ability to do light sedentary work. Mr Mackay in his report of December 2004 shared Dr Axford's views and Dr Carson, whose analysis of the cause of the pursuer's disability put more emphasis on her psychological state, concluded in his first report that her ability to gain employment would be fully dependent on the prognosis of her rheumatological condition.
[65]I conclude that the pursuer has been off work since the incident principally as a result of her reactive arthritis and that but for that disease she would have been able to resume her career on a full-time basis by the end of 2000. I am not persuaded that her husband's health problems would have caused her to reduce her hours. I also hold that she has no prospect of returning to a career as a midwife because of her restricted mobility and lack of manual dexterity. While there is a possibility that she might at some time in the future obtain some form of employment as a counsellor, that prospect depends upon an improvement in her health. The medical practitioners treating the pursuer did not hold out the prospect of any improvement in her health. I am therefore not persuaded that it would be appropriate to discount her claim for future wage loss by that prospect. I deal with the question of the prospects of promotion when I discuss future wage loss below.
Past wage loss
[66]The calculation of wage loss, including past wage loss, is greatly assisted by the Joint Minute which counsel entered into and I am grateful to them for that assistance. On this and several other heads on which the defenders have agreed the amount of damages it is my understanding that they did so on the basis that I find, as I have, that the reactive arthritis is a continuing cause of the pursuer's disability and wage loss. I accept the pursuer's evidence that she would have returned to full-time employment as a Grade F midwife by January 2001 and calculate past wage loss on that basis. Taking account of her wage loss in late 2000, when she was still working part-time, her pre-accident net annual earnings on a full-time basis of £15,700 and the agreed percentage increases to which she would have been entitled between 2001 and 2005, and deducting from her past wage loss the proportion of the income which she received from her employers which she does not have to repay from an award of damages, the result is £77,508. Interest on that sum to 31 August 2005 was agreed as £14,312.
Future wage loss
[67]In calculating the pursuer's future wage loss I have to take account of the pursuer's prospects of promotion had she not suffered from the reactive arthritis which terminated her career. The principal submission by Miss Maguire was that I should hold that the pursuer would have won promotion to a grade G post either as a sister in a hospital or as a community midwife by 2005. In support of her submission she founded on the evidence of the pursuer's motivation, her love of the job, her excellent references, that she had been interviewed for a grade G post in 1998 and Gillian Lenaghan's evidence that she needed no further qualifications to obtain promotion. Against that, there was evidence that there were not many grade G posts available and that the pursuer would have needed to re-establish her previous good record of attendance at work after her prolonged absences from work in 1999 and 2000 before the food poisoning incident. I consider that it is important to be cautious in the assumptions which I make about future promotion having regard to these considerations and also the health problems which her husband was facing and which might have demanded her attention. While I accept that the pursuer would on balance of probability have resumed full-time work, and I accept Dr Ewan MacDonald's evidence that there was a reasonable expectation that the pursuer would have been promoted to G grade at some stage, I am not able to conclude that that would have occurred by 2005. Miss Maguire, aware of this possibility, framed her claim for wage loss on alternative bases. If I did not accept that the pursuer would have achieved promotion by now, she invited me to calculate future wage loss on the basis that the pursuer would still having been working at grade F and that she had lost an opportunity of promotion to G grade which she assessed at 75 per cent.
[68]As I think that the pursuer would on balance of probability have achieved promotion to G grade within the next few years, I am satisfied that it is appropriate to proceed on the alternative basis which Miss Maguire propones. Accordingly, I find that but for the incident, the pursuer would have remained employed as a midwife until her normal retirement age of sixty, that she would have worked full-time at grade F in the immediate future and that there is a strong probability that she would have gained promotion to grade G in the near future. The way to reflect this finding, as the pursuer submits in her alternative claim under this head (using figures from the reports and evidence of the employment consultant, Mr Peter Davies), is, first, to assume that she would have earned a salary at the top of band 6 (£29,295 with a 17.5% allowance for unsocial hours, giving a net salary of £24,095) to which the appropriate multiplier from the Ogden tables (5th ed) of 14.69 (16.14 x (0.93 - 0.02) = 14.69) is applied. (See Table 8, Table C and paragraph 39). Secondly, it is to compensate her for the loss of the opportunity to attain grade G, (which would have commanded a salary of £31,425 gross and the unsocial hours allowance giving a net salary of £28,285) by (i) treating the multiplicand as the differential between that figure and the grade F figure mentioned above (£28,285 - £24,095= £4,190), (ii) applying thereto the multiplier at a lower figure of 10 to reflect the assumption that promotion would be likely to occur at some time in the next few years and (iii) multiplying the result of (i) and (ii) by 75% to reflect the strong likelihood of promotion being attained.
[69]The effect of this approach to future wage loss is that the pursuer has lost her net salary until retirement as a grade F midwife (£24,095 x 14.69 = £353,955) and her opportunity for promotion (£4,190 x 10 x 75% = £31,425). There are no deductible benefits in terms of the Social Security (Recovery of Benefits) Act 1997. Accordingly under this head I award £385,380.
(3)Pension loss
[70]Miss Maguire led actuarial evidence from John Buchanan, whose evidence and assumptions were not substantially challenged on cross-examination. In calculating her pension loss, I disregard the payments which the pursuer has received and will receive until her normal retirement age - Administration of Justice Act 1982, section 10 - but take account of the pension benefits which she will receive on reaching sixty - Cantwell v CICB 2002 SC (HL) 1. Applying the assumptions which I have made relating to future wage loss, the pursuer would have achieved grade G before her retirement and thus under the NHS pension scheme would be entitled to a pension on that basis. Mr Thomson submitted that I should discount the pension as there was only a possibility that the pursuer would have won promotion to grade G. He referred me to Watt v Bridges 2004 Rep LR 96. In my opinion the case can be distinguished as in this case the likelihood that the pursuer would have obtained the promotion increases with time. In assessing the likelihood at 75% (in paragraph 68 above) I have had regard to the uncertainty that she would have achieved the promotion before, say, 2007 but the strong likelihood that she would have achieved promotion before 2010. At that date she will be approaching her mid forties and would still have had many years of employment before retirement. I consider the likelihood of her attaining promotion before her retirement as very high and see no need to apply a discount as in Watt v Bridges. Mr Buchanan's revised calculations which were based on updated mortality assumptions in the 5th edition of the Ogden Tables were agreed by the parties in a Joint Minute. The relevant sum for a full-time grade G employee is £150,530. That is the sum which I award under this head.
(4)Past services: section 8 of the Administration of Justice Act 1982
[80]The pursuer suffered an acute phase of the reactive arthritis during which she was acutely disabled and required longer hours of care than are now needed as a result of the stabilisation of her condition by the disease-suppressing drugs.
[81]Parties were agreed that the first six months between October 2000 and April 2001 were the period in which the pursuer required the most assistance which she received principally from her fiancé but also from her aunt, Mrs Annie Macleod and her friends, Heather Kalinsky and Alison Ferrie. During this phase of her illness, she required round the clock care. She was unable to dress and undress, wash, go to the lavatory herself or look after her personal hygiene. She required others to cook her meals and prepare sandwiches for her, to do housework and to shop for her. I consider that it is reasonable to conclude that in this phase she required between ten and twelve hours of help per day. Taking a conservative approach, I assess the reasonable level of care in this phase at ten hours per day.
[82]It is of course artificial to compartmentalise into clear phases the development of the pursuer's condition. Nonetheless it appears clear that the pursuer has enjoyed a material improvement of function since she started to take methotrexate in January 2003. Thus it is reasonable to take as a second phase the period between May 2001 and December 2002 and to treat as the third phase the period after January 2003.
[83]During the second phase the pursuer's condition improved and she did not require assistance at night. She was better able to manage her personal care but continued to need assistance with cooking, shopping and household chores. She also suffered the bilateral ruptures of her Achilles tendons during this period which both incapacitated her and contributed to her depression. Most of the assistance was provided by her husband who spoke of her needing between five and six hours care per day. The pursuer's own estimate of her needs was that she required between seven and eight hours of care per day. As well as assistance from her husband and her two friends, the pursuer received care in July and August 2002, after her Achilles tendon ruptures, from the Social Work Department and from October 2002 onwards, she received five hours care per week from Care Line. Again taking a conservative approach and allowing for the increased care following the Achilles tendon ruptures I consider it reasonable to treat the average care during this phase as six hours per day.
[84]Since January 2003 the pursuer has benefited from the combination of sulphasalazine and methotrexate which has stabilised her condition. Her mood has also improved with her depression going into remission during 2004. During this period the pursuer's husband provided most of the care although Care Line initially provided five hours per week and since October 2004 seven hours per week. Witnesses' estimates of the average hours of care which the pursuer has required since January 2003 varied markedly. The pursuer spoke of currently requiring between two and three hours of assistance while her husband suggested that she required between five and six hours per day. Heather Popovich, who provided care to the pursuer, spoke of her requiring between four and six hours of care per day. In relation to this phase and also to the pursuer's future requirements for care, I was greatly assisted by the expert evidence of Gloria Luke, an occupational therapist, who took a conservative view of the appropriate level of care as she argued that it was important for a patient to maximise her self reliance. Her assessment was that in this period and in the future so long as the pursuer's condition remains stable, she required and will require four hours of assistance per day.
[85]Ms Luke also gave evidence of the appropriate rates published by the British Nursing Association. Parties were agreed that it was appropriate to have regard to the BNA input rate and to discount it for tax and national insurance contributions - see Wallace v Paterson 2002 SLT 563. While rates had changed between 2000 and 2005, parties were also agreed that it was appropriate to take £4 per hour as the average input rate (after deduction of tax and national insurance) and as the value of services rendered by relatives and friends. Again I am grateful to counsel for this agreement which simplifies the calculations. In the first six months (or 183 days) ten hours per day at £4 per hour results in a total of £7320. However as neither Alison Ferrie nor Heather Kalinsky wish to receive payment for their services I deduct from that sum 17.5% of its value, resulting in £6,039, 10% of which I would attribute to services provided by Mrs Annie Macleod and the balance to Mr Reynard. In the second phase of twenty months (or 608 days) it is necessary to deduct the 95 hours provided by the Social Work Department and Care Line giving a result of 3553 hours and a sum of £14,212. Similarly in the third phase to 31 August 2005 (again twenty months) 784 hours provided by Care Line fall to be deducted, giving a result of 1648 hours and the sum of £6,592. Adding the three sums together produces a total of £26,843. In addition the pursuer has since October 2004 made a weekly contribution of £17.32 towards the care which Care Line have provided her, amounting to £814 to 31 August 2005. The total is £27,657, which I award under this head. Interest on that sum from 14 October 2000 to 31 August 2005 at 4% amounts to £5397.
(5)Future care
[86]I consider that it is reasonable to take the pursuer's continuing requirement for care as four hours per day in accordance with Ms Luke's evidence. This would cover getting the pursuer up in the morning, doing household chores, assisting her with shopping, preparing her meals and preparing for bed. In her report Ms Luke presented the purchased care requirement as two hours per day but that was on the assumption, as she explained in evidence, that the pursuer's husband provided another two hours of assistance per day. While the defenders argued that it was appropriate to assume only two hours per day were required as the pursuer had estimated that she could manage with assistance of between two and three hours per day, I prefer the professional analysis of Ms Luke as a basis for calculating her future needs. I therefore assume that the pursuer will require twenty-eight hours of care per week. Once the pursuer receives damages, she will have to pay Care Line £10 per hour for future services, which I assume will continue at seven hours per week. The pursuer's husband, or in his absence a friend, will provide the balance of the care amounting to twenty-one hours per week. Taking £4 per hour as an appropriate sum for the pursuer's husband, and £70 per week as the sum to be paid to Care Line, the weekly total is £154 and I round down the annual total to £8,000. Parties were agreed that the appropriate multiplier was 27.25, which is derived from Table 2 of the Ogden Tables (5th ed) (age 39 and 2.5% rate of return). Future cost of care therefore is £218,000, which is the sum I award under this head.
(6)Additional care on deterioration of health
[87]There was more controversy over this head of damages which the pursuer sought in addition to the award for future care. The rationale for this claim was that there was a significant risk that the pursuer's condition would deteriorate and that she would thereby require a significantly increased level of care, including purchased care. Miss Maguire sought £504,000 under this head. Mr Thomson submitted that deterioration of her condition was merely a possibility and that it was too speculative a claim to justify an award of damages. Alternatively he submitted that the claim should be substantially discounted for the possibility that the deterioration might never occur.
[88]In my opinion there is a material risk that the pursuer's condition will deteriorate in the future. The pursuer suffers from a chronic and progressive inflammatory disease, which Professor Capell and Dr Madhok have stabilised by disease-modifying drugs. When asked about the future Dr Madhok said that the most optimistic outcome was that they had the pursuer in a still frame with the drugs she was currently taking. But he described himself as "running fairly close to the wire" in asking the pursuer to take the current dosage of methotrexate and there was a danger that the drug would become toxic for her. If it did, he would have to reduce the dosage or withdraw the drug and thereby causing recrudescence of her inflammatory disease. That could occur within days or it might not occur for many years. If he required to withdraw methotrexate altogether, it might be possible that developments within rheumatology would provide alternative medication. Dr Madhok referred to tumour necrosis factor antagonists which had recently become available but which had serious side effects and were not licensed for use on patients with reactive arthritis. He expressed considerable caution about the use of such drugs. Dr Madhok's evidence as to the likely future was not contradicted.
[89]In my opinion, it would be unjust not to award the pursuer damages under this head. She has acquired a permanent progressive disease as a result of the defenders' negligence and depends upon strong drugs to keep the progression of that disease under control. She may not be able to continue on those drugs for the rest of her life. However in fixing the level of damages under this head, I have to use a broad brush as there are many imponderables. Miss Maguire's approach was that as a deterioration might occur at any stage in the future I should discount by 50% the multiplier used for future care above (27.25) and apply that to the differential between the annual future cost of care above and the cost of a twenty-four hour care package which Ms Luke had costed at approximately £43,000 per year. In my opinion this approach is likely to result in over-compensation for two reasons. First, as Dr Madhok suggested, her deterioration might not be to her condition in the initial acute phase but closer to that in the second phase before she began to take methotrexate. Secondly, over the years further developments in rheumatology may provide new drug treatments, such as the use of tumour necrosis factor antagonists, for reactive arthritis if and when other drugs cease to be effective. Taking these factors into account, it appears to me that the appropriate multiplicand is the differential between the annual cost of professional care at six hours per day (which taking Ms Luke's figures in section 6 of her report (p.16) and adjusting for six hours per day gives a figure of £24,250) and the cost of future care already allowed for (£8,000) resulting in £16,250. I would discount the multiplier to 33% of the 27.25, namely 9 and apply that to the annual sum of £16,250 (£24,250 -£8,000), resulting in £146,250.
(7)Additional cost of holiday carer
[90]The pursuer and her husband have not been able to go on holiday, other than their honeymoon in 2002 which was blighted by the rupture of the Achilles tendon. The pursuer would like to take holidays abroad but her husband is not fit enough to care for her on his own. Miss Maguire submitted that the conservative estimate of the annual cost of a holiday carer would be £750 to which the multiplier of 27.25 should be applied. The defenders accepted in principle this head of claim. It appears to me to be reasonable. I therefore award £20,437 under this head.
(8)Past Section 9 services
[91]The pursuer as a result of her condition has been unable to provide services to her husband who has suffered from ill-health. Mr Reynard has suffered two heart attacks and more recently from ulcerated colitis resulting in the removal of his large bowel. The pursuer has not been able to look after their home nor care for him when he has been unwell. Miss Maguire claimed five hours of services per week at the rate of £4 per hour, giving an annual valuation of £1,040, which she then discounted by 20% to take account of the time which the pursuer's husband spent in Leeds as a result of his illness. Mr Thomson correctly pointed out that it was not clear from the evidence how much time Mr Reynard spent in Leeds and suggested that in the past they had operated two households for a considerable time. Nonetheless, I consider that the pursuer's approach is in general justified and I adopt it but use a discount of 30%. This results in the sum of £3,552. Interest thereon at 4% to 31 August 2005 amounts to £693.
(9)Future section 9 services
[92]The pursuer and her husband now reside together. The pursuer seeks the same annual sum (£1040) and the multiplier based on Mr Reynard's age (46) is 23.32 (Ogden Tables (5th ed) Table 1, aged 46, 2.5% rate of return). Having regard to the pursuer's continued disability and Mr Reynard's poor health, I consider that this claim is reasonable and award £24,253 under this head.
(10)House purchase
[93]The pursuer lives in a first floor flat and has great difficulty in negotiating the stairs. During the acute phase of her illness and also in the second phase she frequently was unable to leave her flat for prolonged periods. She still has considerable difficulty with the stairs. Ms Luke advised that she should move house as soon as possible in order to obtain a ground floor property which was suitable for future wheelchair access and which had special bath and toilet facilities. She recommended against the pursuer seeking sheltered housing or disabled accommodation as that would have an adverse effect on her mental state. The pursuer seeks to acquire ground floor accommodation. I am satisfied that it is reasonably necessary that she should do so and that she is entitled to claim as damages the cost of doing so to the extent that she otherwise would not have incurred the expense. Mr Thomson submitted that she could move into a ground floor flat and thus incur no extra expense. However it appears that a very high proportion of ground floor flats in East Kilbride have stairs from the roadside to the ground floor level which would cause difficulties for the pursuer. In addition, from the pursuer's description of her flat it was clear that it would not be suitable for wheelchair access, even if located on the ground floor. Mr Gary McDonald, a chartered surveyor, explained that a new-build flat, which took account of the requirements of the disabled, would be appropriate accommodation but advised that they were very scarce in East Kilbride. There were some ground floor flats in East Kilbride which had only a few steps from the roadside and some of those might accommodate a ramp beside the steps. But such flats were uncommon. In the light of his evidence, which was not challenged, I consider that it is likely that the pursuer will have to acquire a bungalow as it will not be practicable for her to wait for a possibly prolonged period in the hope of acquiring a suitable ground floor flat. Bungalows are sold at a premium over other houses of comparable size in East Kilbride. Mr McDonald gave evidence that a two-bedroom bungalow would sell for between £160,000 and £230,000 while sheltered accommodation might be purchased for about £85,000. The pursuer and her husband would have wished to buy a small house for about £80,000 but for the incident. The pursuer claims the capitalised cost of funding the differential between £160,000 and £80,000 in accordance with Roberts v Johnstone [1987] QB 878. I am satisfied that this approach is a reasonable approach in principle: the pursuer is likely to incur cost moving to a bungalow as a result of her reactive arthritis and that it is reasonable for her to do so. The capitalised cost claimed by the pursuer is £80,000 x 2.5% x 27.25 and amounts to £54,500. Nonetheless, in order to avoid unfairness to the defenders I consider it appropriate to make some allowance for the possibility that the pursuer would be able to acquire and adapt a suitable ground floor flat and thus avoid the expense of purchasing a bungalow. Taking a "broad brush" approach, I discount that sum by 25% resulting in £40,875, which I award under this head.
(11)Fees and outlays on moving house
[94]On moving house the pursuer and her husband will incur legal fees which the parties agreed in the sum of £3,905.
(12)Past additional utilities costs
[95]By remaining at home for most of the day the pursuer has incurred additional costs on heating and other utilities. Parties agreed the sum at £1,112. Interest thereon also was agreed at £217.
(13)Future additional utilities costs
[96]Again parties agreed the sum at £6,213, which is the annual figure of £228 with the multiplier of 27.25.
(14)Other equipment costs
[97]There was no dispute over this head of claim which comprised several items of equipment to assist the pursuer, the principal one being a special mattress. The agreed sum is £225.
(15)Past treatment costs
[98]The pursuer has for some time received deep massage to her back, neck and shoulders from Ms Lyndsay Sunter, a therapist. The treatment provides pain relief to those parts of her body. The administration of hot wax to her shoulders and hands also relieves pain. Parties agreed this head of claim in the sum of £600.
(16)Future treatment costs
[99]The pursuer seeks to continue this treatment on a weekly basis at the cost of £16 per week at present prices. Parties agreed this head of claim in the sum of £22,672.
Summary and award
[100]The result of the awards under the various heads of claim set out above is as follows:
| Solatium | £85,000 |
| Interest on past solatium | £8,294 |
| Past wage loss | £77,508 |
| Interest thereon | £14,312 |
| Future wage loss | £385,380 |
| Pension loss | £150,530 |
| Past care | £27,657 |
| Interest thereon | £5,397 |
| Future care | £218,000 |
| Additional care on deterioration of health | £146,250 |
| Additional cost of holiday carer | £20,437 |
| Past section 9 services | £3,552 |
| Interest thereon | £693 |
| Future section 9 services | £24,253 |
| House purchase | £40,875 |
| Fees and outlays of moving house | £3,905 |
| Past additional utilities costs | £1,112 |
| Interest thereon | £217 |
| Future additional utilities costs | £6,213 |
| Other equipment costs | £225 |
| Past treatment costs | £600 |
| Future treatment costs | £22,672 |
| Total | £1,243,082 |
I therefore repel the defenders' pleas-in-law and award the pursuer £1,243,082 with interest on £1,214,169, being the total above under deduction of the sums awarded as interest, from 31 August 2005 at the rate of eight per cent per year.
Postcript
[101]The defenders sought to amend their pleadings under Rule of Court 24.1 in May 2005 to introduce further evidence, principally about a surveillance video recording of the pursuer which was made in April 2005 and also to provide a basis for leading expert evidence to suggest that the correct interpretation of the histology report on the pursuer's left Achilles tendon (paragraph 20 above) was that obesity probably caused the rupture. The defenders also sought under Rule of Court 43.6(8) to lodge the video and a medical report by a consultant histopathologist, Dr Boon, which, like the video, they had instructed only in April 2005. The averments in the Minute of Amendment were to the effect that the pursuer indeed had a level of disability but that it was significantly less than the pursuer suggested in evidence in court or when meeting medical experts. The pursuer had been observed getting in and out of vehicles without assistance, shopping in supermarkets and other shops, carrying a bag of shopping, lifting a drink in a glass with only one hand, writing and using a mobile phone. The defenders averred that the pursuer was capable of performing most if not all aspects of her former employment as a midwife. Mr Thomson referred to the high value of the claim, the need to get to the truth and the fact that no evidence would otherwise be available from a histopathologist to assist the court as grounds for granting his motions.
[102]This application came after Miss Maguire had led the bulk of the pursuer's case in two weeks in February 2005. The Minute of Amendment would have required Miss Maguire to recall eight witnesses who had already completed their evidence. Mr Thomson accepted that the diet of proof in May would have to be discharged and a further three-week diet would be needed. Miss Maguire suggested that three weeks would probably be insufficient as the pursuer's witnesses required to be recalled; she would also need to lead expert evidence on histopathology. She submitted to me that she had seen the video and she contested the interpretation which the defenders sought to put on it in their Minute of Amendment. The question of the pursuer's disability was one of degree and Miss Maguire emphasised that she did not accept the inferences which the defenders averred in their Minute of Amendment. The pursuer had accepted in evidence that her condition, and in particular her mobility, had improved since she was introduced to methotrexate in January 2003 and since her depression lifted. Miss Maguire submitted that the defenders had not shown that it was fair and just to allow the Minute of Amendment to be received nor had they shown cause for the late lodging of the productions. She referred me to the following authorities: Martin v McGuiness Lord Bonomy, 2 February 2003 (unreported) (on the use of video surveillance evidence and the human rights of the person observed), Clarke v MacKenzie 2005 SLT 389 (on the expression "special cause shown") and (on the appropriateness of allowing a Minute of Amendment to be received) Thomson v Glasgow Corporation 1962 SC (HL) 36, Strachan v Caledonian Fish-Selling and Marine Stores Co Ltd 1963 SC 157, Rafferty v Weir Housing Corporation Ltd 1966 SLT (Notes) 23, Chapman v James Dickie & Co (Drop Forging) Ltd 1985 SLT 380 and Hodge v British Coal Corporation 1992 SLT 484.
[103]I refused the motion to allow the Minute of Amendment to be received as I did not consider that it would be fair or in the interests of justice to grant it: Thomson v Glasgow Corporation 1962 SC (HL) 36. I had regard to its lateness, the absence of any acceptable reason why the evidence sought to be adduced could not have been obtained before the proof, the disruption which it would cause the proof as the diet would have to be discharged and the resulting unfairness to the pursuer which further delay would cause. The defenders had been aware of the pursuer's medical records and the views of the medical practitioners treating her for a long time. They had had access to the histology report on which they sought to led Dr Boon's evidence since it was lodged in process in July 2004 and it had been available to Dr Axford in October 2004 when he examined the pursuer. The pursuer and seven of the pursuer's witnesses would have had to be recalled to give further evidence. This would cause discomfort to the pursuer who had already given evidence during two full days; it would also inconvenience busy medical practitioners. Substantial delay was inevitable in a case in which the defenders admitted liability but had failed to make any interim payment to the pursuer. It was suggested that time for a replacement diet would not available until late 2005 or early 2006. The delay and the costs associated with duplicated evidence were, in my opinion, both unfair to the pursuer and not in the interests of justice.
[104]The defenders' agents had unfortunately, and unwisely, allowed their expert witnesses to study the video before making the motions to have the recording accepted into process and to amend the pleadings. I therefore instructed the relevant witnesses when they gave evidence to disregard what they had seen in the video.