ELLEN ELIZABETH ANNE BROWN v. THE YORKHILL NATIONAL HEALTH SERVICE TRUST
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF LORD ABERNETHY in the cause ELLEN ELIZABETH ANNE BROWN Pursuer; against THE YORKHILL NATIONAL HEALTH SERVICE TRUST Defender: ________________ |
Pursuer: Di Rollo, Q.C., Forsyth; Anderson Strathern, W.S.
Defenders: Bell, Q.C., HBM Sayers
12 September 2002
Introduction
[1]The pursuer in this action of reparation was a nurse at the Royal Hospital for Sick Children, Yorkhill, Glasgow. She claims damages for loss, injury and damage which she says resulted from an accident in the course of her duties. She alleges that the accident was caused by the negligence and breach of statutory duty on the part of the defenders, her employers.
The Accident and its Immediate Aftermath
[2]On 6 October 1997 the pursuer was at work in Ward 1A at the hospital. She had worked there for about a year and a half. It was a ward which was purpose built for oncology. The children in it were very ill with leukaemia and other forms of cancer. Each room in the ward was a self-contained unit with en suite facilities and facilities for parents to stay with their children. The pursuer had sole care and total care as a nurse for five children. One of them, a boy of 12, had acute lymphoblastic leukaemia. He had suffered a number of relapses and as a result of chemotherapy had developed haemorrahagic cystitis. He had therefore had to have an operation to open his bladder. It required to be kept open and washed out with a continuous drip of saline solution. A two-litre bag of the solution lasted about half an hour. The bags were stored in cardboard boxes on the floor of a cupboard opposite the boy's room. There were ten bags in each box. Rather than carry bags individually to the boy's room the pursuer decided to take a full box. It was the first time she had done that. She pulled it towards her and then crouched down and picked the box up. Her knees were bent, her back straight and she lifted the box by straightening her knees. As she did so, she immediately felt pain in her back. She managed, however, to carry the box to the boy's room where she put it on a chair. At about the same time the mother of one of the children in another room came running to say that her daughter was falling out of bed. The child was a girl, aged 8, also with lymphoblastic leukaemia and as a result of her condition was in a special bed, which was higher than usual. The pursuer and the mother managed to draglift the girl back into a proper position on the bed. The pursuer had no difficulty in doing that, although she continued to feel what she described as a niggling pain in her back. She did not think that lifting the child had aggravated it. All this happened on the morning of 6 October. The pursuer was on the early shift which ran from 7.30am until 3.30pm. She managed to finish her shift. She then went home, unusually still in her nurse's uniform. She told her husband she had hurt her back. She had a hot bath and took some painkillers. She had a bad night but managed to go to work the next day, this time for the back shift which ran from 2pm until 10pm. Performing her work was a struggle. She told some of her colleagues about it. The following day at work she was in great pain. Her back was in spasm. She asked to see someone in the Occupational Health Service at Yorkhill but they were too busy. She was examined by two physiotherapists who strapped her back and advised her to go home. Before doing that she saw her ward manager, Sister Jean Kirkwood, who with the pursuer's assistance completed an incident record form. The pursuer was extremely distressed at the time. She was then taken home by a sister who did home care. She had to leave her own car at the hospital. That evening she went to see her general practitioner.
[3]This was the account of her accident given by the pursuer. The first issue in the case is whether it should be accepted. There was other evidence - from Sister Kirkwood, from Staff Nurse Clarkin (a colleague of the pursuer's) and from the pursuer's husband - that the pursuer had injured her back at the material time. Indeed, there was no dispute about it, but there was no corroboration of the pursuer's evidence of how that had happened. My decision on this issue must therefore turn on whether I accept the pursuer as a credible and reliable witness on the matter. In her pleadings the pursuer avers that her injury was caused by both lifting the box and reaching for and lifting the young female patient. In the incident record form it is recorded that the pursuer was "unsure if back strained lifting a patient or lifting a box of IV fluids". Her husband said that when she went home of the day of the accident she said the same thing to him to him. This was in contrast to the pursuer's evidence that she was sure at the time that she had hurt her back by lifting the box. Mr Bell, senior counsel for the defenders, also founded on other parts of the evidence relating to what the pursuer could and could not do following upon the accident, which he said reflected adversely on her credibility and reliability, to argue that she should not be accepted as credible and reliable on this matter either.
[4]Having considered all the evidence that bears on this issue and having seen and heard the pursuer in the witness box I have come to the conclusion that her back injury was on the balance of probabilities caused by her lifting the box of saline solution bags. No doubt in the day or two after the incident when she was in extreme pain and struggling to cope she was unsure as to what precisely had caused the injury but at least by 19 November 1997 she is recorded as telling those in the Occupational Health Service at Yorkhill that her pain was due to lifting boxes of saline. The pursuer said that the doctors had told her that it was that. Certainly, as is clear from the various documents in process, from an early stage she was telling the doctors that that was the cause and it was never suggested by any of them that it was not. On the contrary, Mr Taylor, consultant neurosurgeon at the Southern General Hospital, thought it more likely than not that it was this incident that caused her injury. There was also evidence that it was reasonably foreseeable that lifting such a box would cause the kind of back injury the pursuer sustained. On the other side of the coin, there was no evidence to support the notion that lifting the child or anything else was the cause.
Liability
[5]Mr Di Rollo, senior counsel for the pursuer, submitted that if I accepted the pursuer's account of the accident it was impossible on the evidence not to find the defenders liable both at common law and in terms of regulation 4(1) of the Manual Handling Operations Regulations 1992. Mr Bell for the defenders did not dispute this. In my view he was correct not to do so.
[6]The defenders in their pleadings aver that the pursuer was contributorily negligent but neither in the evidence nor in submission was this seriously argued. In any event, the evidence of Staff Nurse Clarkin in cross-examination by Mr Bell was that it was common practice in the ward to lift boxes full of saline solution bags rather than individual bags. She had done it many times. In light of this evidence, which I accept, I do not find the pursuer was contributorily negligent.
Loss, Injury And Damage
[7]Most of the proof was taken up with this aspect of the case. In order to deal with it, it is necessary to narrate the history of events from the accident to date.
[8]After having been taken home on 8 October 1997 the pursuer was off work for about a week. Despite being given an anti-spasmodic drug by her general practitioner and taking painkillers, the pursuer was in considerable pain and restricted in movement. The pain was so great when standing that she had to crawl in order to get round her flat. During the week or so that she was off work her condition improved somewhat. She then took two weeks leave. She fulfilled a previous commitment to fly to Florida as part of a team of doctors and nurses taking sick children for a short holiday. There were nearly two hundred children from all over the UK. The holiday was organised annually by a British Airways charitable organisation called Dreamflight. The pursuer had worked for the West of Scotland branch for many years, helping to raise funds for the charity. The pursuer was still in a lot of pain and she wondered if she should go but there was a doctor and a physiotherapist in her group and she decided to do so. Her back, however, prevented her from being as fully active as she would otherwise had been. After her period of leave the pursuer returned to work for a few weeks but she was in considerable pain. On 19 November she saw a doctor in the Occupational Health Service. She said she was told she had torn fibrous tissue in her back and should keep active and continue working but a physiotherapist told her that she should not be working. On 26 November she stopped working. She has not worked since.
[9]Thereafter the pursuer underwent numerous examinations and various forms of treatment in an attempt to find relief for the back pain that she continued to suffer. She gave an account of it in her evidence, much of it supported by documents lodged in process. Towards the end of 1997 she had physiotherapy and traction as an outpatient at the Western Infirmary. That did not help and she stopped in December 1997. In January 1998 she started a course of twenty treatments privately from Mr Cram, an osteopath. The treatments were twice-weekly initially and then weekly. Initially there was some improvement in her symptoms but it did not last. Later in 1998 she was treated privately with osteopathy, acupuncture and herbal remedies by Mr De Fries, a homeopathic doctor. She was on various medications prescribed by her general practitioner - anti-inflammatories, painkillers and sedatives to help her to sleep. She underwent further physiotherapy in the general practitioner's medical practice. In June 1998 she was referred by her general practitioner to Dr Porter, rheumatologist at Gartnavel General Hospital. She was seen by him in August 1998. He confirmed the general practitioner's impression that there was no significant pathology in the pursuer's lumbar spine but could not help with regard to improving her pain. It was localised to her right sacro-iliac joint. Dr Porter thought it was almost certainly a mechanical sacro-iliac pain. He thought that there was a degree of left leg shortening which might be contributing significantly to the chronicity of her symptoms. He arranged for the orthopaedic workshop to fit her with a shoe raise. He also arranged an isotope bone scan to exclude inflammatory disease and he suggested an 8-week course of amitriptyline to help her to sleep and control pain through the night. If these did not produce a solution, he felt that the only other option was to refer the pursuer to the Pain Clinic for an assessment for possible sacro-iliac joint injection with lignocaine and steroid (hydrocortisone). The bone scan was negative and on review by Dr Porter in October 1998 the pursuer was still suffering back pain. A later MRI scan also proved negative. The pursuer was then referred to the Pain Clinic at Gartnavel.
[10]On 8 January 1999 the pursuer was retired from her job on the ground of ill health caused by her back injury.
[11]On 17 February 1999 the pursuer was seen by Dr Serpell, consultant in anaesthesia and pain management, at the Pain Clinic at Gartnavel. Shortly before that, on 11 February 1999, she had been reviewed orthopaedically at the Back Clinic at the Western Infirmary but following examination and in light of the negative scans orthopaedic intervention was not indicated. The diagnosis was mechanical back pain. By the time she saw Dr Serpell she had stopped using a raised shoe because it had been of no benefit. (It was later found that there was in fact no shortening of the left leg). Her drug regime had also been changed because of side effects. Her pain was located around the right sacro-iliac joint area. Dr Serpell performed a local and steroid injection into the area and the pursuer was asked to report back in two weeks. Her psychological behaviour was found to be appropriate. The injection however, did not improve matters. The pursuer said she spent ten days in bed after it. Some two months later Dr Serpell performed another sacro-iliac joint injection and caudal neuro-block with steroid. These injections were performed in theatre under local anaesthetic. He reported some marginal improvement in the pursuer's pain but she said it did not provide much relief. On 4 October 1999 she was reviewed again at the Pain Clinic, this time by Dr McCubbin, consultant in anaesthesia and pain management. He considered that she should have a right-sided facet joint injection with local anaesthetic solution and steroid (again hydrocortisone). This was done on 7 December 1999 and provided better relief but only for a few weeks. Dr McCubbin reviewed the pursuer again on 15 May 2000. By this time she was off all medications (she had been advised to come off painkillers in November 1999 following a bout of flu and continuing symptoms thereafter). Dr McCubbin felt that she had learned to manage her pain symptoms quite well and advised that she resort to the painkiller tramadol only to control any exacerbations. He suggested she attend the pain management programme at the Astley Ainslie Hospital in Edinburgh (there was not one in Glasgow then and one is not due to be set up until January 2004) but she felt that travelling there for the twelve weeks of the programme was too much for her.
[12]In the meantime the pursuer had been using a TENS machine. That is a machine which is fitted to the back and creates an electronic pulse. The pursuer had borrowed one soon after she hurt her back in October 1997 and then, in November 1999, had bought one. She used it often, for four hours at a time. She was using it when she was giving evidence. She could not use it all the time, however, or, indeed, every day, because it ceased to work effectively if she did that.
[13]The pursuer also attended the Occupational Health Service at Yorkhill on numerous occasions following her initial attendance on 19 November 1997. In 1998 she also underwent a course of Bowen therapy on a private basis. She also had further physiotherapy in 1991 and from August to October 2002.
[14]Evidence of this history was given by the pursuer. Dr McCubbin gave supporting evidence insofar as he and Dr Serpell were involved. Dr MacLean, the pursuer's general practitioner did likewise. There was no dispute that the pursuer had undergone all these examinations and treatments and I accepted the evidence of them.
[15]The pursuer also gave evidence of the effect of her symptoms of her life. She said that for the first seven months or so she was effectively housebound. The pursuer and her husband (they have no children) lived at that time in a second floor flat. Initially her husband had to provide basic nursing care for her. As time went on he did not have to do so much but from about May 1998 until her retirement in January 1999 he had to do the hoovering in the flat, the main shopping, the driving and lifting anything heavy. He also sometimes prepared the meals. The pursuer estimated that this took about one hour per day on average. Since January 1999 the pursuer said that her back pain had been on a plateau. She had back pain every day. About one day a week on average it was so bad that she could not get out of bed. On other days she could wash and dress herself and get about the house (in October 2000 the pursuer and her husband moved to a semi-detached house). The pursuer did light household duties and some shopping but had to do it slowly with rests. She could drive and walk short distances. If she did too much, as when she tried to wash the car on one occasion in 2002, she suffered for it afterwards. Her husband still had to do much the same things as he had done in the period up to her retirement. Before the accident she used to go hill walking and ceilidh dancing but since then could not do that. She now takes a lot of painkillers and anti-inflammatories (paracetamol and ibuprofen) - about 12 a day - which she buys over the counter as that is cheaper than on prescription. They cause her dyspepsia from time to time and about five times a year she gets pharyngitis from gastric reflux caused by the painkillers.
[16]This evidence was corroborated by the pursuer's husband. It was, however, seriously challenged by the defenders. Their position was that the pursuer's pain was not genuine. She had just convinced herself that she had pain and had become addicted to painkillers. She was malingering. She was capable of doing a great deal more than she said she was. She was capable of remunerative employment and had been for a long time.
[17]The basis of this challenge was covert video evidence of the pursuer on a number of days in June 2001 and March and April 2002. When Mr Bell first sought to lead this evidence, Mr Di Rollo objected. He questioned whether the videoing of the pursuer was a contravention of Article 8 of the European Convention on Human Rights, which provides for the right to respect for private and family life. At that stage Mr Di Rollo merely reserved his position as to the competency and relevancy of the evidence. He did not then seek a ruling as to its admissibility. The evidence was therefore allowed to proceed subject to competency and relevancy. In submission at the end of the case Mr Di Rollo renewed his objection but on different grounds. He did not suggest that there had been a contravention of Article 8. The basis of his objection was that the video tape of the pursuer had not been proved. The pursuer had identified herself as the person in the video but it was clear that the tape had been edited. It was therefore necessary for the circumstances in which the video had been taken and later edited to be explained. Only the taker could do that and he or she had not given evidence. Reference was made to Patterson v Howdle 1999 JC 56. In my opinion, however, the failure of the taker of the video to give evidence on these matters did not render the video tape inadmissible as evidence. It might affect the weight to be put upon it but that is a different matter.
[18]The video taken in June 2001 showed the pursuer, inter alia, bending down to stroke a cat, unlocking her garage door (which was springloaded), getting into her car, reversing it out of the garage, pulling the garage door again, bending down to lock it, doing some shopping at a local supermarket, carrying goods from a trolley to her car and loading the car, later doing some more shopping with another lady and helping her to load goods into the car. On 27 March 2002 she is shown, inter alia, bending down to lift the doormat at the front door of her house, lifting the garage door, putting a bag in the boot of her car, reversing the car out of the garage and then, having got out of the car, bending down and taking something into the house. The next day she is shown, inter alia, stretching to take net curtains off a railing in her house and, some hours later, putting them back up again. On 29 March 2002 she is shown, inter alia, cleaning the area round her front door, the windowsills there and her garage door. There is some bending and stretching. Later she is sweeping around the garage door. After that she assists her husband in using a powerjet to wash her car. Then she uses a sponge to clean the car. All this goes on for some time. Not long afterwards she is seen to have changed and goes out in her car, first to church (it is Good Friday) and then to a local supermarket. After leaving the supermarket she is seen taking a box of groceries to the car, bending down, putting it on the ground and, after opening the car boot, bending down again to pick up the box and putting it in the car. On 3 April 2002 she is shown, inter alia, outside someone else's house in the company of a man and a young girl. The man puts the child in the back of the car and then the pursuer bends and reaches into the car to fix the child's seat (her car has only two side doors). The pursuer then drives off. She goes to a supermarket with the child, later emerging with some shopping. She puts the shopping into the car boot and straps the child into the child's seat. Sometime later, in the afternoon, she is with the child in a public park for about half an hour. She then puts the child back in the car and is then seen at another public park. She is sitting with the child on a roundabout, propelling it by pushing on the ground with her foot. When she leaves the park after about half an hour, she again straps the child into the car seat. After visiting another shopping centre, she goes to a house where she and the child stay for about two hours. On leaving, she again straps the child into the car seat before driving off.
[19]Mr Bell submitted that these activities were to be contrasted with what the pursuer had apparently told Mr Iain Mackay, consultant orthopaedic surgeon, and Mr Brian Keith, vocational rehabilitation consultant (both instructed by the defenders) she could and could not do.
[20]Mr Mackay first saw the pursuer on 8 February 2001. His report is No. 7/2 of process. He spoke to it in his evidence. In that report Mr Mackay said that the pursuer complained of pain in her neck, upper right arm, upper right leg, right groin and back. The symptoms in her leg and arm were much less troublesome than her neck, which in turn was less troublesome than her back. The back symptoms were noted as follows:
"She continues to have back pain which is confined to the right side. Back pain is of equal severity to what it was originally. She describes spells when pain is more troublesome than others. There are no days without low back pain.
She describes night pain and being woken up 4 or 5 times a night and also early in the morning by pains.
She describes pain as being worse if she is active, eg if she is walking or if she is carrying anything of even moderate weight. She is unable to, for example clean windows because this causes back pain.
Back pain is unchanged throughout the day. She does not find that resting her back helps any pain. She finds that running hot water over her back helps back pain. Coughing and sneezing do not seem to cause back or leg pain.
She has not been limping at any time, despite being advised at some stage that one of her legs was around 1/2 inch shorter than the other."
The effect on her social and domestic life was noted as follows:
"Mrs Brown describes how she gets help from her husband with all activities at home. In general, she takes things easily. She has a shower first thing in the morning and then has a rest. She tells me receives no pleasure from cooking and cleaning activities at home. She is able to carry out activities such as making beds, but only with considerable care.
Any lifting activities even including a saucepan or kettle seem to hurt her neck, right shoulder and her back.
She avoids all bending activities if at all possible and also tends to avoid kneeling or leaning activities since they exacerbate back pain.
She describes caution when going up and down steps and stairs.
She is able to go out of the house and is able to drive a car which has power steering. She is able to do some shopping using a small basket and gives an account as to how she has to make several trips with small baskets from the supermarket to her car rather than one trip. She develops pins and needles in the right hand when carrying a shopping basket.
She indicates that she is unable to hoover, clean windows or do any heavy shopping.
She has not been able to return to her previous activities such as hill walking and she is unable to walk on slopes because of back pain.
She apparently has not been to the city centre since 1999 because of low back pain.
There are some days when she does not go out because of back pain. She at present is only able to walk for up to some 300 yards at most before she develops pain in her back and her right groin.
She has not been able to go to a cinema or theatre for several years."
[21]Even at this stage Mr Mackay was plainly suspicious that the pursuer's complaints were not entirely genuine. Like everyone else who has examined or treated her over the years he could find no physical cause for what he took to be her low mechanical back pain. That did not exclude the fact that she had back pain and he recognised that there was no way of measuring the extent of it. He expressed the view, however, that "her clamant complaints contrast quite markedly with her apparent general appearance of well being". This was before he had seen the videos. When he did see them he reported as follows (No 7/4 of process):
"It is clear that the account given by Mrs Brown was inaccurate to a remarkable degree and perhaps the following points could be considered.
1.She is clearly capable of much more significant lifting activities, as seen on the video, than what is claimed. It is quite clear that she bends and indeed squats with apparent comfort in the video on many occasions, contrasting with her claimed problems in both these reports.
2.Her walking tolerance would appear to be much greater than a few hundred metres, as far as I can assess from the surveillance reports and some of the video evidence when she was in the park.
She advised me that she was unable to hoover and I, of course, am unable to comment on this. However, she stated that she was unable to clean windows or do any heavy shopping whereas the video recording indicates that she is able to do both. Indeed I thought her efforts at washing her car, cleaning windows and cleaning the garage door, as seen on the video recording, were all well beyond what one would expect to see in a person with clamant back pain.
4.The rehabilitation report indicates that during a 2 hour visit she managed to stay seated almost to the end of that visit, this contrasting with her claimed need to get up every few minutes to do some stretching exercises.
5.Throughout all of her activities around the house, garden and garage, Mrs Brown appeared by any reasonable set of standards to be quite active. She demonstrated remarkable mobility and quite satisfactory agility, as one might expect in a person in her age group. She did not appear to be cautious when bending or squatting, when loading a car or stretching into the back of a car to attend to a young child or when carrying shopping bags or a box of groceries."
In his evidence he said that these five points covered the position.
[22]Mr Keith saw the pursuer in her home on 27 February 2002. Her husband was present. Mr Keith's task was to assess the pursuer's employment potential. As part of that he took a history of the pursuer's physical complaints. He recorded these in his report (No 7/5 of process), to which he spoke in his evidence, as follows:
"Pain in lower back. This is constant, but worse when walking or eg coming down stairs (there are stairs in the house). Pain relief takes the edge off the pain usually, but at other times does not seem to help. She reports that occasional episodes of more severe back pain can be caused by seemingly trivial things such as once when reaching for a scarf at head height. Mrs Brown reports that her back then seems to go in to spasm and she can be more or less confined to her bed perhaps for a few days. At such times physiotherapy does offer some relief. She reports that generally she finds it best to move around a little as opposed to spending too long in one position.
Neck and shoulders are 'tight' and painful all the time.
Sitting tolerance is limited, and she needs to get up every few minutes to do stretches. During my visit which lasted over two hours, Mrs Brown did manage to stay seated almost to the end.
Walking tolerance limited to perhaps a few hundred metres
Lifting is very restricted
Bending and kneeling are difficult."
Mr Keith said that pursuer struck him as someone who had considerable difficulties in moving. When he later saw the video he was surprised at her general presentation. She was moving round more easily than when he had seen her. She appeared to be performing the activities shown in the video without distress, although he agreed that she was moving slowly and was not attempting anything very active.
[23]There was no material dispute that Mr Mackay and Mr Keith had correctly recorded what the pursuer had told them concerning the pain she suffered and what she could and could not do. She said that what she had said was essentially correct, at least on bad days. When she was asked to explain that in light of what she is seen doing in the video, she said that she could not do these things all the time. Some days she could do them, some days she could not. And when she did do them, she did them more slowly than she used to. It felt like slow motion, she said. She was not moving freely. She continued to have pain every single day. The time she used the powerjet to wash the car was the first time she had done that. (Her husband said they had just got it and were experimenting to see if she could use it. She had not in fact used it since). She was taking painkillers and she was wearing the TENS machine, as she always did when she was out.
[24]Dr McCubbin said that when he saw the pursuer in 1999 and 2000 he looked for signs of inappropriate behaviour but there were none. On being shown the video he noticed that the pursuer was keeping her back fairly straight when crouching or bending down. From what he saw on the video overall, however, it seemed that her back symptoms had improved but he added that she might have taken painkillers beforehand, which is what he advised patients to do, or she might have been having a good day. Moreover, back pain can be episodic. It was difficult for him to comment on isolated incidents.
[25]As part of the preparation for this case the pursuer was seen by Mr W A S Taylor, consultant neurosurgeon at the Southern General National Health Service Trust Hospital. He interviewed and examined her on 15 January 2001. His report is number 6/9 of process. He spoke to it in his evidence. He specifically tested for signs of inappropriate illness behaviour but found none. Since then he had seen the videos. He accepted that they showed the pursuer doing things which from what she had told him he would expect her to avoid doing. But the impression she had given him was that she had good days and bad days and the video evidence was not immediately contradictory of what she had said to him. He declined to go as far as Mr Mackay in saying that the pursuer in the video had demonstrated "remarkable mobility". There was also nothing in the video which showed her doing things she had told him she could not do.
[26]In this context it is also appropriate to notice the evidence of the pursuer's husband. He said that the position now was that the pursuer was definitely better than in late 1997 but it seemed as if she had reached a plateau. She was always stiff and sore but when she was having a bad day, he had to help her with anything involving bending, stretching or lifting. He did the hoovering, the heavy cleaning work, putting heavy things in and taking them out of the washing machine or the oven, and he did any driving beyond the Glasgow area. He cut the grass and brushed the paving slabs in the garden. The video showed the pursuer brushing slabs but that was the only time he could recall her doing that. He said it took the pursuer some two hours to get ready in the morning and comfortable to go anywhere compared with half an hour before the accident. She took paracetamol and ibuprofen and often used the TENS machine. Before the accident they used to go ceilidh dancing, they went to the cinema and theatre and they went away for weekends. Now they only socialised locally. Some days she did not go out of the house, which was usually as a result of having done something which had proved too much for her. In the video she was doing things such as stretching to clean the garage and hang curtains or to fasten a child's safety belt in the rear of a car but she was not able to do that regularly. He denied she lacked motivation to do more or to return to some form of employment.
[27]Having carefully considered all this evidence and having seen and heard the witnesses give their evidence I do not think that the pursuer is malingering. In the first place it does not seem to me to fit easily with the undisputed evidence of the pursuer's pre-accident history. She had qualified as a State Enrolled Nurse in 1982 and since then had worked exclusively at the Royal Hospital for Sick Children at Yorkhill. Since 1984 she had worked in oncology and haematology. At the time of her accident she was working in the bone marrow transplant unit where the patients were very ill with leukaemia or other forms of cancer. It was demanding work but she loved it. It was very important to her. As a result she had married relatively late. (Her date of birth is 5 November 1961). She was very rarely off sick. Outside her normal duties she involved herself in charitable work for sick children. At the time of the accident she had been accepted for a conversion course which could have led to promotion to a higher grade. It seems to me that this is an unlikely background for a malingerer. Moreover, after her accident she tried to carry on with her work until she was persuaded to go home. Then after a period of leave during which she fulfilled a commitment to take sick children on a holiday she returned to work for a short time until it became clear that she could not continue. I accept the pursuer's evidence that she was in great pain at that time and that her mobility was severely restricted. Despite exhaustive investigations no physical injury has been found to account for her continuing symptoms. Nevertheless, I accept the evidence that low back pain can be a consequence of the type of accident the pursuer had. It would be a soft tissue injury and usually clears up fairly quickly, within a few months, but that is not always so and can develop into a state of chronicity. The diagnosis is then one of mechanical low back pain, which is the diagnosis that has been made of the pursuer. For the avoidance of doubt Mr Taylor's unchallenged evidence was that there was no suggestion of a psychiatric or psychological aspect to the pursuer's pain.
[28]The pursuer's accounts recorded in the medical records and given to the various medical and other witnesses of the pain she suffers and how it affects her life have been generally consistent. Apart from one minor matter which Mr Mackay noticed at his examination of the pursuer on 8 February 2001 (he examined her again on 7 November 2002), there have been no findings of inappropriate illness behaviour. These were things that Mr Taylor said he looked for in assessing the genuineness of the pursuer's symptoms. Moreover, the pain she complained of followed upon a compatible incident. The pursuer's account was also consistent with the evidence given by her husband. Of course this is not wholly independent evidence but I thought he was an impressive witness and I did not get the impression that he was in effect trying to hoodwink the court.
[29]Moreover, if the pursuer is malingering, as the defenders contend, she had been malingering for some four and a half years by the time she gave evidence. The defenders' position was that the pursuer should have been back at work within about six months of the accident. There was no dispute that the pursuer's lifestyle had changed dramatically since the accident. At that time she had been married for only about a year and she and her husband led a very full and active life. In addition to her life at the hospital and her connected charity work, the pursuer and her husband had an active social life. They went hillwalking. They enjoyed ceilidh dancing and going to the theatre and cinema. Since the accident all that has now gone and they lead a relatively quiet life. Furthermore, before the accident they had planned to start a family. Now that has been put on hold because of the pursuer's physical condition. The evidence on these matters was not disputed and I accept it. If the defenders are correct, this must be all part of the malingering. So must the many and various attempts that the pursuer has made and the procedures she has undergone to find a lasting cure for her back pain and also her ongoing consumption of painkilling drugs with the consequences that that brings. Once again all this, it seems to me, is an unlikely scenario for a malingerer.
[30]There is, however, the video evidence. At first sight this does appear to show the pursuer doing more in the way of activity than at least she gave the impression to the doctors and other witnesses she was capable of doing. I think, however, it is going too far to say it is directly contradictory of what she told Mr Mackay or Mr Carter. I prefer Mr Taylor's evidence on that matter. In my view the proper interpretation of what she said to the doctors and other witnesses is that she was describing what at times she could not do. I accept her evidence that she was not saying or at least did not mean to say that she could never do these things. While she said that she had back pain every day, she did not say it was of the same intensity all the time. Some days were better (or worse) than others. She was taking painkillers and anti-inflammatories. As Mr McCubbin pointed out, these might also account for her doing some things on some days which she could not do on others.
[31]While I understand Mr Mackay's view in light of what is recorded in his reports, it is fair to point out that, although in one part of the report No.7/2 of process he recorded that the pursuer's back pain is unchanged throughout the day, he also recorded that there are spells when the pain is more troublesome than others and that the pain is worse if she is active. In the five points he makes in his report after seeing the videos (No.7/4 of process) he appears to make no allowance for these variations in pain nor for the possible effect of the drugs the pursuer was taking. Nor does he comment in the report on the slow speed at which she moves, albeit in his evidence he did accept that she was walking cautiously at times. In particular, her walking in the park is no more than the gentlest of strolls. Similarly, her wiping the base of the windows and their sills is not in my opinion the same as cleaning windows. It is also worth noting that Mr Keith was much less critical both in his report and in his evidence of her remaining seated for most of his interview, although she had told him she preferred not to spend too long in one position. So in my opinion there are points of interpretation here and once the factors that I have mentioned in this and the preceding paragraph are taken into account, much of the force of Mr Mackay's criticism falls away.
[32]The video evidence is of course no more than a snapshot of what the pursuer was doing on certain days. There was no evidence of its context. The videos were obviously edited. It is not known over what period overall the pursuer was subjected to surveillance or what she was doing at times not shown in the videos. At the end of the day I do not think that more can be taken from the video evidence than that on some days the pursuer is capable of doing the things seen on the video. It does not assist in indicating how often those days occur or, of course, how she is on other days. Moreover, I accept that in the activities shown on the video the pursuer is moving slowly; in slow motion, as she put it. The contrast with the speed with which her husband moves when they are both in the video is very noticeable. Furthermore, as Mr Mackay acknowledged, it is not possible to tell the weight of the items she lifted or was carrying.
[33]It is fair to say, I think, that when giving an account of her symptoms to doctors and others the pursuer tended to emphasise what she cannot do rather than what she can. It is this in my opinion which has given rise to the impression that she is negative, has little motivation, is exaggerating her symptoms and malingering. But while the attitude she has shown may not be as robust as others might have displayed and she may have come to accept her pain and manage it as best she can, I am persuaded that it is genuine.
[34]In discussing her pain the emphasis both in the evidence and in this Opinion has been on her low back pain. I accept, however, that she also has some neck and shoulder pain, pain in her right upper and lower limbs and pain in her groin. She also sometimes suffers from pins and needles in her right hand. All this is usually associated with her back pain but it is much less of a problem for her than her back pain.
[35]It was agreed that in this situation the appropriate figure for solatium was £15,000, with two thirds allocated to the past and one third to the future. Interest on the two thirds to 1 July 2003 was agreed at £2,320.
[36]The next matter is loss of earnings. The evidence in relation to this had a bearing on whether or not the pursuer was genuine in describing her symptoms. In particular, it was suggested that she could have returned to some form of employment but lacked the motivation to do so. I have not overlooked this evidence when concluding that she was genuine. But it is more convenient to deal with it at this stage.
[37]The pursuer has not worked since 26 November 1997. At that time she was a Grade D nurse. She had been on that grade since she qualified in 1982, which was longer than usual if she was to be promoted. However, she had been accepted for a conversion course which, if she had passed, would have allowed her to apply to become a staff nurse in paediatrics on Grade E. The course was two days a week spread over about one and a half years and was not due to start until September 2000, although there was a possibility of a place on the course starting in September 1999. The pursuer said she would have completed the course and it was realistic that she would obtain a Grade E post. Staff Nurse Clarkin, a paediatric and oncology outreach nurse at Yorkhill and a colleague of the pursuer's, was of the view that she would certainly have reached Grade E. This evidence was not seriously challenged and there was no contrary evidence. Mr Bell made the point that it was all rather speculative. I accept that but I do not think it was too speculative. I am prepared to accept that on the balance of probabilities the pursuer would have gone on the conversion course and would have ultimately have obtained a Grade E post. It was agreed that in that situation the date of promotion to Grade E should be taken as at 1 July 2003. There were posts in still higher grades and the pursuer thought that she could have progressed further but Miss Clarkin said that such posts were comparatively few and far between and Mr Di Rollo, correctly in my view, did not seek an award on that basis on the ground that that was too speculative.
[38]It was not in dispute that, on the basis that the pursuer's symptoms were genuine, she was nevertheless in a position now to try to seek employment. It was accepted that she could not return to nursing. But there were other possibilities. The pursuer said that she was prepared to re-train. She would like to start a course in counselling the terminally ill and the bereaved but it was full-time and she was not sure that she could manage that. That was why at the time she gave evidence she was working part-time with a cancer charity following a suggestion by Mr Keith. She was also doing a course in aromatherapy one night a week at Anniesland College.
[39]As I said earlier, Mr Keith had interviewed the pursuer on 27 February 2002. His report is No. 7/5 of process. He found that the pursuer had a number of skills and qualities. Whether these could be used in the labour market depended both on her physical condition and on her motivation. Mr Keith had seen Mr Mackay's report, No.7/2 of process, in which he had spoken of the pursuer's negative attitude to returning to work but the pursuer told Mr Keith she was not negative in that regard. On the contrary, she would like to return to work and only her physical condition was preventing her. Mr Keith suggested a number of possibilities which might suit her. One of them was voluntary work. That often involved helping people and might improve the pursuer's confidence. It would give her up to date references and was likely to be viewed positively by employers. It might also improve her stamina. It was this suggestion that she took up and led to her obtaining part-time work with a cancer charity. At the time she gave evidence she had been doing this work for some two months. She worked two days a week for four hours a day. She found the travelling to and from work and the work itself, which was mainly of a clerical nature, painful for her back and took time to rest when she got home but she was managing. She hoped it would lead to light employment on a more permanent basis.
[40]In October 2002 the pursuer was interviewed by Mr Keith Carter, an experienced employment consultant instructed on behalf of the pursuer. Mr Carter prepared a report (No 6/15 of process) and gave evidence in support of it. He was of the view that it was better for the pursuer to start part-time and proceed from there. If she went full-time at the outset and found it too much for her it would harm her later employment prospects. He envisaged that she should work part-time for about eighteen months before attempting to go full-time. She showed some desire to start work again. Motivation was a very important aspect but he thought that the pursuer demonstrated a degree of motivation. She had recently started on a part-time basis with a cancer charity and was taking a course in aromatherapy. She would like to do a course in counselling. Commenting on these, Mr Carter pointed out that there were not many job prospects in counselling and they tended to be part-time and non-pensionable. Counselling could also be done on a self-employed sessional basis. He thought aromatherapy was totally inappropriate for the pursuer. She would, however be physically capable of acting in a clerical capacity in a hospital or medical practice and could acquire the necessary keyboard skills. If in the National Health Service such a position would be pensionable.
[41]Against this background I turn to the actual figures for loss of earnings. On the assumption, which I have held to be the case, that the pursuer would have gone on the conversion course and would have been promoted to a Grade E post as from 1 July 2003, it was agreed between the parties that the appropriate figure for loss of earnings from the date of the accident to 1 July 2003 (in a Grade D post) was £59,350 together with interest amounting to £13,790. It was agreed that the amount of compensation for the relevant period (five years to 6 October 2002) in respect of this head of damages to be specified in terms of section 15 of and Schedule 2 to the Social Security (Recovery of Benefits) Act 1997 is £49,349.
[42]With regard to the pursuer's loss of earnings from 2 July 2003 into the future (in a Grade E post) Mr Di Rollo accepted that the pursuer was now capable of part-time work. She had always said that she would retire at the age of 55. On this basis a detailed calculation of her loss of earnings from 2 July 2003 into the future is made in the Schedule of Damages. I need not repeat that here as it was agreed to total £132,815. Recognising, however, that it was realistic to envisage that the pursuer would be able to do and obtain full-time employment at some stage in the future, Mr Di Rollo submitted that this sum should be reduced by one third. Mr Bell, on the other hand, submitted that it should be reduced by more than one third. He suggested a half. I have of necessity to take a broad approach to this matter. In all the circumstances I think that 40% would be a reasonable deduction to make. The figure for loss of earnings from 2 July 2003 into the future is therefore £79,689, say £79,690.
[43]Pension loss claimed was agreed at £69,300. The total pension loss was £103,944 but it was agreed that there should be a deduction of one third from this. Mr Di Rollo recognised that some allowance had to be made for the possibility that the pursuer would obtain some form of pensionable employment, although any pension would be less than she would have obtained from the National Health Service. Mr Bell for his part recognised that obtaining pensionable employment would be more difficult for the pursuer than merely obtaining employment. He accepted that a deduction of one third would be appropriate in these circumstances.
[44]The pursuer also has a claim for services in terms of sections 8 and 9 of the Administration of Justice Act 1982. In the event only the claim in terms of section 8 was maintained. In the Schedule of Damages for the pursuer a figure of £7,500 is put forward. As I understood it, this was an all-inclusive figure, covering both the period up to and after 1 July 2003 and interest for the period up to that date. Mr Bell submitted that the evidence on this matter was so vague that no sum should be awarded but, in any event, no more than £2,000. He referred to Roberts v John Johnston & Son 1999 S.L.T.728. I agree that the evidence was vague but I do not think that it was so vague as to make it inappropriate to make an award. I accept the pursuer's evidence, which was corroborated by her husband, that initially he had to do a great deal for her. But from about May 1998 she estimated that he spent on average about one hour per day providing services for her. This seemed to me a reasonable estimate, although my impression was that he provided rather less now than earlier. How long this will continue will depend on how the pursuer progresses in the future and is difficult to predict. As counsel recognised, this matter also has to be assessed broadly. In my opinion a reasonable all-inclusive figure as described above would be £6,000.
[45]There remains only the pursuer's loss in relation to the cost of private osteopathic treatment. This was agreed at £750 inclusive of interest to 1 July 2003.
Decision
[46]In the result, therefore, I shall sustain the first plea-in-law for the pursuer, repel the first to fourth pleas-in-law for the defenders and grant decree for payment by the defenders to the pursuer of the sum of £246,200 with interest on that sum at the rate of 8% per annum from 2 July 2003 until payment. I shall certify the following witnesses as experts: Mr W.A.S. Taylor, Mr Keith Carter, Dr Richard Graveling, Mr T.F. Marshall, Mr Iain Mackay and Mr Brian Keith. Mr Di Rollo sought certification also of Dr McCubbin but I agree with Mr Bell that that would not be appropriate as he was called to give evidence of his treatment of the pursuer and was therefore not an independent expert for the purposes of the litigation. For the purposes of section 15 of and Schedule 2 to the Social Security (Recovery of Benefits) Act 1997, I specify that the amount of compensation due to the pursuer for earnings lost during the relevant period is £49,349. No other compensation to which Schedule 2 relates is being awarded.