KARIN O'DONNELL CAMPBELL OR PEARSON (ap) v. JAMES PATRICK IMRAY AND OTHERS
| OUTER HOUSE, COURT OF SESSION |
| A2452/99 | OPINION OF LORD EMSLIE in the cause KARIN O'DONNELL CAMPBELL or PEARSON (AP) Pursuer; against JAMES PATRICK IMRAY and OTHERS Defenders: ________________ |
Pursuer: G M Henderson; Lindsays, W.S.
Defenders: Shand; Bishops
25 April 2003
Introduction
[1]On 26 December 1991, while employed by the Forth Valley Health Board ("the Health Board") as a trainee healthcare assistant at Falkirk Royal Infirmary, the pursuer sustained injuries when a large and heavy patient fell backwards, pushing her against a door frame and causing her to strike her lower back. Thereafter she instructed solicitors, latterly the defenders, to pursuer a claim of damages against her employers in respect of that accident. However, no proceedings were commenced within the triennium, and no subsequent attempt was made to raise proceedings out of time in reliance on section 19A of the Prescription and Limitation (Scotland) Act 1973, as amended.
[2]In this action the pursuer seeks to hold the defenders responsible for the loss of her prospective claim, alleging that if they had not been professionally negligent an action would have been raised against the Health Board and would have led to a substantial award of damages.
[3]In response, the defenders maintain that for a variety of reasons, including time-bar, the pursuer's prospective claim would have failed; that any recoverable damages would in any event have been modest; and that they themselves were not professionally negligent in the first place, having intentionally closed the pursuer's file in December 1994 after receiving no response to (i) letters requesting instructions on 31 August 1994 and 2 November 1994, and (ii) a final ultimatum in their letter of 9 December 1994.
[4]Accordingly, the principal issues canvassed at the proof before answer which took place before me over 15 days in November 2002 and March 2003 were:-
(1)Were the defenders professionally negligent in not raising proceedings on the pursuer's behalf, either timeously within the triennium, or later by virtue of section 19A of the 1973 Act?
(2)Did any such negligence on the defenders' part cause the pursuer to lose a worthwhile right of action against the Health Board? and
- If a worthwhile right of action was lost by reason of the defenders' negligence, what value should be attributed to that lost right?
The alleged negligence of the defenders
[5]The first major issue to be resolved is whether the pursuer has established her case of professional negligence against the defenders regarding the circumstances in which her prospective claim against the Health Board became time-barred. It is common ground that the triennium expired on 26 December 1994; that on 27 January 1995 the defenders received what bore to be a letter from the pursuer dated 12 December 1994, intimating a wish to proceed further with her claim; and that all further communication between the parties ceased with the defenders' reply to that letter on 31 January 1995. An unusual feature of the case is that the defenders did not allow the triennium to expire through error or inadvertence. On the contrary, they did so intentionally after closing their file when the pursuer appeared not to respond to their final warning and ultimatum dated 9 December 1994. Accordingly, the two principal questions explored at the proof in this context were (i) whether the defenders had been negligent in the period immediately prior to the expiry of the triennium; and (ii) whether the defenders had negligently failed to take appropriate steps to protect the pursuer's interests one month later when they received her letter bearing the date 12 December 1994.
[6]The history of the parties' dealings with each other in relation to the pursuer's prospective claim was not materially in dispute, and may be summarised shortly. Some months after her accident at the end of December 1991, the pursuer consulted other solicitors in Falkirk with a view to their raising an action of damages against the Health Board on her behalf. Suffice it to say that very little happened over the next two years or so. The claim was notified to the Health Board and swiftly repudiated; a legal aid application was partially completed but never submitted; no supporting evidence was obtained from lay or expert witnesses on the merits; no medical report was sought; and by the time the successors of the original solicitors advised the pursuer in July 1994 of their intention to withdraw from civil work, and of the consequent need for her to obtain alternative representation, the state of play with regard to her claim was not materially different from what it had been two years earlier. It was against that background that the pursuer came to consult the defenders, meeting with one of their partners, Mr Malcolm Thomson, for the first time on or about 29 August 1994.
[7]Not surprisingly, the defenders were somewhat alarmed at the apparent lack of progress which they had now inherited, and were acutely conscious that the triennium was only four months away. This latter concern was from the outset made clear to the pursuer. Thereafter, an application for legal aid was completed and lodged on or about 17 October 1994, accompanied by a medical report recently obtained from the pursuer's general practitioner, Dr Gordon McInnes. Unfortunately, the account of the pursuer's accident in Dr McInnes' report, suggesting that she had suffered injury "... while lifting a patient", was significantly at variance with the pursuer's own account of the patient having simply fallen against her and pushed her against a door frame. As a result of this discrepancy in the papers submitted, the Scottish Legal Aid Board ("SLAB") promptly refused the application. It was at this point that the defenders' letter to the pursuer of 2 November 1994, seeking instructions with regard to applying for review of the refusal of legal aid, went unanswered, and the dispute before me focused on the correspondence which subsequently ensued, or alternatively did not ensue, between the parties.
[8]On the same day as the legal aid application was lodged, the defenders wrote to the pursuer, asking for her comments on the terms of Dr McInnes' report. This letter came too late, of course, to enable the contradiction of the pursuer's account of the accident to be rectified before it came to SLAB's attention, but in the event the pursuer did not reply and the defenders continued to be unaware of the problem. On 2 November 1994, two days after the application was refused, the defenders again wrote to the pursuer, pointing out that a review of the Board's decision could be sought and requesting urgent instructions in that connection. The pursuer did not reply to that letter either, explaining in her evidence at the proof that she had been angry about the refusal of legal aid. On 9 December 1994 the defenders again wrote to the pursuer, seeking instructions relative to further pursuit of her claim including review of the refusal of legal aid. This letter reminded the pursuer that the triennium was imminent, and concluded with the following sentences:-
"As we only have until 26 December next to decide whether or not to proceed with your claim before it becomes time barred, we would be grateful to hear from you as quickly as possible.
In order that there is no doubt in this matter what we would advise is that if we have not heard from you within the next 10 days, either by telephone or by appointment, then we shall assume that you do not intend taking the matter further and we shall then close our file.
We look forward to hearing from you."
[9]As previously noted, the defenders received no reply from the pursuer within the ten-day period stipulated in their letter. They therefore gave effect to their ultimatum, closing the pursuer's file and allowing the triennium to expire without further action. Significantly, the pursuer did not attempt to follow the matter up at any time before or after 26 December 1994. She did not telephone the defenders; she did not visit their offices; and apart from the letter which arrived on 27 January 1995 she did not communicate with them in writing.
[10]On 27 January 1995 the pursuer's letter bearing the date 12 December 1994 was received by the defenders at their Falkirk office. This letter acknowledged the lack of response to previous correspondence, but intimated the pursuer's desire to seek a review of the refusal of legal aid, and thus by inference her wish to proceed further with her claim. In the witness box, the pursuer insisted that this letter was in fact written and posted on 12 December 1994, and that it must have been a casualty of the Christmas postal rush. The defenders, I think, viewed this explanation with some scepticism, but since the envelope had been discarded on arrival it was not possible to investigate the matter further.
[11]Be that as it may, the defenders proceeded to write their final letter to the pursuer on 31 January 1995 in the following terms:-
"We thank you for your letter of 12 December 1994 which was not received in our office until 27 January 1995. We note what you write in your letter but we would refer you to our recent correspondence. Despite our letter you unfortunately did not return to us your request a seek a review (sic) of the Legal Aid Board's decision to refuse legal aid. You will also note that we wrote to you confirming that unless we heard from you in good time prior to 26 December 1994 your claim would be time barred and that if you wished to proceed with any action we would have to hear from you before then. We did not do so and we therefore assumed that you did not wish to take matters further. On that basis we closed our file.
The position therefore is that your claim remains time barred and we feel that you would have great difficulty in taking matters further. What we mean by time barred is that even if you were in a position to proceed with Court action now, as you have not done so within three years of the date of the accident then those who you sue can put this forward as a valid defence. Moreover, you still do not have the benefit of legal aid.
If you would wish to discuss matters further, then please do not hesitate to arrange an appointment with writer, but we trust that you will appreciate the difficulties that are now upon you with regard to pursuing this claim."
According to the pursuer, she took this letter as final confirmation that there was "no route out" and that the claim could no longer proceed. At the time, she said, she could control her back condition with painkillers, and so thought no more about it. She made no attempt to contact the defenders pursuant to the invitation in the concluding paragraph of their letter, and I believe that the next communication to be received by the defenders from the pursuer or her agents was the letter enclosing a mandate for the transfer of the file in August 1997.
[12]The evidence led before me on the subject of the defenders' alleged negligence followed an unusual course. Mr Gerard Brophy, the pursuer's current solicitor in Falkirk, gave evidence for more than a day but was not asked about it. The third named defender, Mr Thomson, was then led by the pursuer and, while the relevant facts were explored with him in evidence, the matter of professional negligence was not in terms raised with him either. The pursuer then led Mr Eric Scott, a partner of Messrs Campbell Smith, Edinburgh, and an experienced and well-respected reparation practitioner. Put shortly, his evidence was that while, in his view, the defenders' decision to close their file in December 1994 on the basis of the pursuer's apparent silence constituted bad practice, he did not feel able to say that it amounted to professional negligence in terms of the well-known test laid down by Lord President Clyde in Hunter v Hanley 1955 SC 200, at p. 205. By contrast, he was satisfied that any solicitor exercising reasonable care and skill would have done more at the end of January 1995 than write to the pursuer, as the defenders did, in negative and discouraging terms which made no mention of the possibility of salvaging the situation in reliance on section 19A of the 1973 Act. He might not himself have gone into the technicalities of section 19A in correspondence at that stage, but the important thing for any solicitor would have been to bring the pursuer into the office straight away and get an action into court on her behalf as soon as possible. He would, he said, have panicked and taken urgent steps to ensure that proceedings were raised at the earliest opportunity.
[13]Although on one view this evidence went beyond the pursuer's very sparse pleadings at pages 16 and 17 of the amended Closed Record of February 2002, it was led without objection on that ground, and I do not believe that it was thereafter the subject of direct challenge in cross-examination. However, even if a technical objection had been taken to the leading of such evidence, I would have held that on a fair reading of the pursuer's averments she must be understood as desiderating a practical and effective end result beyond the mere communication of advice on section 19A, namely the raising of proceedings in reliance on that section of the Act. Alternatively, if on a stricter approach Mr Scott's evidence required to be seen as going beyond the letter of what was pled, I would still have held it admissible as a legitimate "variation, modification or development" of the pursuer's case. Mr Scott's conclusions on this aspect of the matter were couched in terminology reflecting the universal test for professional negligence as stated by Lord President Clyde in Hunter v Hanley, supra, at p. 205. It is true that at an early stage in his evidence Mr Scott appeared to identify, as his point of reference, the passage on p. 206 where his Lordship applied the same general test in the context of an alleged departure from established practice. Nevertheless, I am satisfied that the critical passage in his evidence was expressed in terms of the appropriate universal test, and that there is no question of that evidence being rendered invalid by the fact that the present case does not directly concern a deviation from established practice. I therefore reject, as inappropriate and unduly technical, the attempt by counsel for the defenders to have her plea to relevancy sustained in this regard at the conclusion of the proof.
[14]The final witness to give evidence on the subject of the defenders' alleged negligence was Mrs Morag Fraser, a partner in a firm of solicitors based in Falkirk. She was the author of a report lodged in Process which did not touch on the question of negligence at all, and in the witness box she explained that it was only during the previous week that she had been asked to consider that question. Her evidence was that in the situation in which Mr Thomson had found himself in January 1995, she would have done exactly the same as he did, bearing in mind that the file had been closed intentionally; that the pursuer was not necessarily still a client of the firm; that the issue of funding for an action remained unresolved; and that the possibility of a conflict of interest arose. Her letter would have spelled out the pursuer's own previous failures to answer correspondence. It would also have emphasised the obvious difficulties in the way of proceeding further with the proposed action; and thereafter it would have effectively left it to the pursuer to contact the defenders again if she saw fit. Mrs Fraser would not, she said, have raised the possible use of section 19A with the pursuer at all at that point, regarding that, somewhat pessimistically, as a rare and difficult issue calling for extreme caution. Mrs Fraser did not, however, in terms address Mr Scott's main point that this was a situation in which urgent steps must be taken to contact the pursuer with a view to raising proceedings as soon as possible on her behalf. Her evidence was, in other words, limited to considering the terms in which a letter to the pursuer might have been couched, and on that matter she considered that the third defender's letter of 31 January 1995 gave the pursuer an adequate opportunity to contact the firm again if she wanted to pursue her claim.
[15]Even if the scope of her evidence had not been restricted in this way, there are several reasons why I would not have been inclined to attach great weight to Mrs Fraser's evidence on the issue of the defenders' alleged negligence. Firstly, as she herself explained, she tended to specialise in matrimonial work, and although she clearly had significant experience of handling reparation and other cases in the context of the Ordinary Court, I did not gain the impression that she had substantial first-hand experience of actually conducting reparation proofs and debates. Secondly, she appeared to me to regard limitation as a relatively unfamiliar and difficult area, and section 19A in particular as a provision calling for caution and concern rather than as a positive lifeline capable of overcoming an otherwise fatal time-bar plea. It would be wrong, she thought, to tell the pursuer that something might be done for her where the effort might fail and the advice might "come back to haunt" the solicitor at a later stage. This led, as I understood it, to the somewhat surprising conclusion that it would be safer to avoid possible disappointment later on by not mentioning the availability of section 19A at all. Thirdly, Mrs Fraser's views appeared to proceed upon the belief that the defenders' letter of 31 January 1995 should be read as offering an open door to the pursuer, and did not carry the essentially negative message understood by both the pursuer and Mr Scott. In my judgment that belief was ill-founded, and in the course of her evidence Mrs Fraser conceded that she might perhaps have been reading the letter as a lawyer, rather than as an ordinary recipient such as the pursuer. Fourthly, I do not consider that Mrs Fraser as a witness can be regarded as wholly independent from the defenders, in respect that she completed her traineeship with their predecessors and still maintained amicable professional contacts with partners and staff of the defenders' firm including Mr Thomson. There was, of course, no reason to think that her evidence was to any degree affected by bias on this account. Counsel for the pursuer expressly disclaimed any such suggestion, and of course even the views of a member of the defenders' firm would not per se be inadmissible. In my view, however, the lack of true independence from the defenders is a relevant factor that I must take into account in determining the weight to be attached to Mrs Fraser's evidence. And fifthly, as previously indicated, Mrs Fraser had only been asked to consider this aspect of the matter very recently, and had not had the opportunity to formulate her views precisely in a written report with the advantage of an ample period for reflection. In these circumstances, applying the guidance of the House of Lords in Bolitho v City & Hackney Health Authority 1988 AC 232, I do not consider that the evidence of Mrs Fraser as a solicitor of ordinary competence is per se sufficient to preclude a finding of professional negligence against the defenders in this case.
[16]Weighing up these considerations as best I can, I am persuaded that in all the circumstances the defenders must be held to have been negligent in doing no more than contact the pursuer in terms of their letter of 31 January 1995. In my view that letter would have suggested a closed door to the pursuer, rather than the open door for which Mr Thomson and Mr Fraser contended. More importantly, I accept Mr Scott's evidence that any solicitor of ordinary competence exercising reasonable care and skill would have taken effective steps to ensure that the pursuer had a genuine opportunity to consider the possibility of reviving her claim in reliance on section 19A. In the event it was left to the pursuer herself, on an entirely uninformed basis, to decide whether to contact the defenders again or not, and the negative and discouraging tone of the letter of 31 January 1995 suggested that there would be no apparent benefit in her doing so. On the evidence before me, I do not consider that this was a sufficient discharge of the defenders' continuing responsibilities vis-à-vis the pursuer, and hold that in the exercise of reasonable care and skill any solicitor of ordinary competence would have gone further in the manner outlined by Mr Scott.
Contributory negligence
[17]At the conclusion of the proof, counsel for the defenders argued that in the event of her clients being held negligent, a finding of contributory negligence should be made against the pursuer for failing to respond effectively to the defenders' letters of 31 August 1994, 2 November 1994 and 9 December 1994, thus causing or materially contributing to the expiry of the triennium without proceedings being raised. While in my opinion the pursuer can be criticised for her admitted failure to reply to the two earlier letters in August and November, I am not persuaded that that is enough to warrant a finding of contributory fault in this case. On paper, the pursuer bears to have responded promptly to the defenders' ultimatum of 9 December 1994, her letter being dated 12 December notwithstanding its receipt by the defenders more than six weeks later, and the defenders were unable to demonstrate, even on the balance of probabilities, that the delayed arrival of the pursuer's letter was not genuine or that the date which it bore was false. I must therefore proceed on the basis that the pursuer responded promptly and appropriately to the defenders' ultimatum within a matter of days, and I think that it would be going too far to blame her for failing to take any further action between 12 December and the expiry of the triennium, particularly when that possibility was not put to the pursuer in evidence nor addressed by any other witness. The defenders' plea of contributory negligence is therefore repelled.
Legal aid
[18]In the context of causation, counsel for the defenders argued strenuously that even if the pursuer had indicated a wish to proceed with her claim in early 1995, she would not, as a matter of probability, have succeeded in reversing the prior refusal of her legal aid application. This, she said, would have precluded the raising of proceedings against the Health Board, and would thereby have severed any causal link between any negligence on the part of the defenders and the loss of which the pursuer now complains. The principal considerations on which counsel relied in this context were (i) the apparent absence of any relevant ground of action against the Health Board; (ii) the improbability of the pursuer surviving any debate or preliminary proof on the issue of time-bar; and (iii) the nil or negligible value of any claim open to the pursuer. In my view there is force in the defenders' argument on this aspect of causation, but with some hesitation I have reached the conclusion that it must be rejected. For one thing, SLAB's initial refusal of legal aid was based on only one ground, namely the obvious contradiction between the GP's submitted report and the pursuer's own account of her accident. That problem could, as it seems to me, have been resolved without too much difficulty in the same way as the notion of a lifting accident was quickly dispelled in evidence during the proof, and there is no evidence to suggest, on the balance of probabilities, that SLAB would then have done anything other than grant the pursuer's application. No other potential ground of refusal was hinted at in November 1994; the probabilis causa test is all too easily satisfied, calling for something in the nature of a prima facie stateable case rather than any material prospect of success; the test of reasonableness is also relatively easily satisfied; and, perhaps most significantly of all, legal aid was in fact granted to the pursuer for the purposes of the present action despite all of the same potential difficulties being among those requiring to be taken into account. It is therefore difficult to hold, as a matter of probability, that legal aid would not have been granted for the pursuit of simpler proceedings in 1995. It is, in any event, likely that the urgency of the situation in 1995 would have justified the immediate raising of proceedings followed at once by a sist for legal aid. In that event the pursuer's pursuit of her application would not have delayed the raising of proceedings to the detriment of her position under section 19A. In this context, on Day 2 of the proof, Mr Brophy confidently stated that he would not have expected any difficulty in getting funds to raise an action and then sist it.
Extent of the defenders' liability: general principles
[19]If, as seems probable, an action would have been raised against the Health Board in early 1995, the next question to consider is whether it would have had any tangible prospect of securing an award of damages, this being a matter which the pursuer must prove on the balance of probabilities in order to succeed. In Yeoman v Ferries 1967 SC 265, solicitors admittedly failed to raise an action timeously on the pursuer's behalf, but contended that any such action would have failed and that the pursuer therefore had no valid claim against them. Under reference to certain English authorities, Lord Avonside held that, while his own current assessment was unfavourable to the pursuer's prospects of success, the likelihood was that in a timeously-raised action the pursuer would have succeeded in obtaining damages from a jury or by way of settlement. It could not be said, in other words, that the pursuer had no cause of action at all, or even a cause of action limited to "nuisance value". Accordingly, an appropriate value required to be placed on the pursuer's right of action, even though the proposed claim might not in the end have succeeded. In all the circumstances, the value of the pursuer's claim should be assessed at £1,000, being approximately one-third of its maximum potential value.
[20]Kyle v P & J Stormonth Darling, W.S. 1994 SLT 191 was a case in which the defenders negligently failed to prosecute an appeal which was in consequence held to have been abandoned. The pursuer averred that she had lost a claim having "reasonable prospects of success", and the defenders argued that in the absence of any averment that success was probable the case was irrelevant and the pursuer was bound to fail. The Inner House rejected this contention, holding that what the pursuer had to prove, on the balance of probabilities, was that the defenders' negligence had caused the loss of a right of action having some tangible value. Thereafter, the court would have to assess the true measure of that value in the ordinary way, bearing in mind inter alia the hypothetical prospects of success and the chance that the claim would have been compromised.
[21]Delivering the Opinion of the Court, Lord McCluskey at p. 69 outlined the proper approach to be taken in such circumstances, as follows:
"The negligent act consists of the agent's neglect to take the peremptory step timeously. The loss consists of the inability to pursue the claim thereafter. The causal link between the act and the loss presents little problem in such a case. However, when it comes to a closer consideration of the loss itself, it must be clearly recognised that the solicitor's negligence has not caused the would-be litigant to lose his claim against the third party; it has caused him to lose only the right to advance that claim in a court of law. Accordingly, in assessing the monetary value of what has been lost, the Court has to ask two questions: (1) Did the right to advance the claim have any tangible value at all at the time when it was lost? (2) If it did, how can that value be assessed? Obviously, if the right to advance the claim had no value at all at the time of the negligent act, then the would-be litigant would not be entitled to an award against the negligent solicitor: having lost nothing he would not be entitled to compensation for any loss. If, however, the right to advance the claim did have a tangible value, then the Court would have to assess that value on the basis of the material placed in evidence before the Court. Factors that may be taken into account in arriving at the monetary value of the loss may well include any factor that would have been directly relevant to the assessment of the value of the original claim - now lost - against the third party, the hypothetical prospects of success in the litigation in which that claim was to be pursued, and the lost possibilities of a compromise settlement with the third party in the now lost litigation. ....
.... If it can be shown that at the time when it was lost the claim had a value, then there is both injuria and damnum and the only remaining issue is the potentially difficult one of assessing what is the true measure of the loss. .... There may be cases in which the litigant, suing his negligent solicitor, can demonstrate that the claim against the original defender would have been bound to succeed; in that event the measure of his claim against the solicitor may be close to or identical to the measure of his lost claim against the original wrongdoer. Equally, there may be cases in which the prospects of success in the original claim were so remote that the Court could confidently conclude that the claim in the litigation was worthless and that the loss of the right to pursue it was a nugatory loss. In between there may be a whole spectrum of possibilities. It may be that in a case such as the present the Court could be readily persuaded to have regard to the everyday fact that legal disputes are compromised at some stage (often at the last minute) between their initiation and their determination by the Court. There are elaborate and frequently used procedures for compromising claims in whole or in part. It follows, therefore, that the pursuer in the present case is right to claim damages for what he offers to prove he has lost, namely the value of the lost right to proceed with his appeal in the original litigation. The pursuer will fail unless it is established that the lost right had an ascertainable, measurable, non-negligible value; but he is under no obligation, as a precondition of obtaining an award against the present defenders, to show that he would probably have succeeded in the original litigation."
These principles have been followed and applied in subsequent cases including Smith v Lindsay & Kirk (No.2) 2002 SLT 335.
[22]The initial question to be determined here is thus whether the pursuer has proved, on the balance of probabilities, that the right of action which she lost in 1995 had an "ascertainable, measurable, non-negligible value". If not, on the authority of Kyle, supra, the present action must fail altogether. But if that question is answered in the affirmative, then in going on to place a figure on the value of the claim the Court is free to take account of risks and chances, falling short of probability, in accordance with normal practice. Approaching the matter in this way, I now turn to consider two critical matters, namely (i) the pursuer's prospects of surviving a debate or preliminary proof on the subject of time-bar, and in that context of securing the exercise of the Court's discretion under section 19A; and (ii) assuming success in relation to time-bar, the pursuer's prospects of bringing home liability for negligence against the Health Board.
`The issue of time-bar
[23]In my view this is where the pursuer's real difficulties begin. It is well settled, by a long line of authorities including Donald v Rutherford 1984 SLT 70; Forsyth v A F Stoddard & Co Limited 1985 SLT 51; and Anderson v City of Glasgow District Council 1987 SLT 279, that the onus is on the pursuer in such cases to show good cause why the Court should allow a time-barred action to proceed and thereby prejudicially expose the defenders to a threat of litigation to which they would otherwise have been immune. All relevant factors must be taken into account for this purpose, including (i) the conduct of a pursuer and his agents in the period before and after the triennium; (ii) the length of time between the expiry of the relevant time limit and the raising of proceedings; (iii) the explanation (if any) for the delay; and (iv) the availability or otherwise of an alternative remedy against solicitors or other third parties. Generally speaking, a pursuer will in this context be held responsible for failures of those acting on his behalf. Counsel for the defender referred me to several cases in which the application of this approach had led to decree of dismissal, notably Munro v Anderson-Grice Engineering Co Ltd 1983 SLT 295; Beaton v Strathclyde Buses Limited 1993 SLT 931; and Wilson v Telling (Northern) Limited 1996 SLT 380. She went on to submit that, for broadly the same reasons, an identical result would have followed here. Counsel for the pursuer, on the other hand, submitted that on the balance of probabilities the pursuer would have been allowed to proceed with her action under section 19A, and that the defenders' time-bar plea would have been rejected.
[24]Having given this matter anxious consideration in light of the parties' competing submissions, I have reached the conclusion that the pursuer would in all probability have failed to secure the benefit of the Court's discretion under section 19A, and that the action would accordingly have been dismissed as out of time. In my opinion, the principal factors militating strongly in favour of that conclusion are (i) the pursuer's awareness from an early stage of the impending triennium, and of its significance; (ii) her failure to respond to important letters from the defenders as the triennium approached; (iii) the inadequacy of the reasons advanced for such failures; (iv) the question mark as to the true provenance of the pursuer's letter bearing the date 12 December 1994; (v) the pursuer's failure to follow matters up with the defenders, not just in the fortnight between 12 December and the expiry of the triennium, but for more than a month thereafter; (vi) the fact that the defenders intentionally closed their file and allowed the triennium to pass, believing that the pursuer no longer wished to pursue her claim; and (vii) the period of delay between 26 December 1994 and the probable commencement of proceedings in (at the earliest) February 1995. In this context, I would leave out of account the alternative remedy which the pursuer might conceivably have had in damages against her previous solicitors for having allowed all but four months of the triennium to elapse without any significant progress being made in the investigation and furtherance of the claim. It goes without saying, of course, that the Health Board would have been bound to suffer material prejudice in the event of losing the protection afforded by section 17 of the Act, particularly in a case where the pursuer would have been legally-aided and, win or lose, they would have had to bear their own expenses. Had these matters been debated before me in the Court of Session, I would have declined to allow the pursuer's action to be brought under section 19A, and I have no reason to think that a hypothetical decision in Falkirk Sheriff Court at any time between 1995 and 1997 would have been to any different effect.
[25]Accordingly, I consider that the pursuer has failed to prove, on the balance of probabilities, that in consequence of the defenders' negligence in early 1995 she lost a right of action having an "ascertainable, measurable, non-negligible value". In my opinion an action against the Health Board would not have survived to the stage of a proof on the merits, and the pursuer's claim against the defenders must therefore fall at this hurdle. Perhaps more importantly, I do not consider that an action against the Health Board would even have survived to a stage at which settlement discussions might have been attempted. The question of possible settlement was the subject of a considerable amount of evidence at the proof, from the pursuer's solicitor Mr Brophy, the defenders' expert Mrs Fraser, and two experienced solicitors from the Health Service Central Legal Office, and what clearly emerged was that an action would have been seriously defended on the time-bar issue and that any settlement discussions would have taken place thereafter if that challenge failed. There was no evidence to suggest that the Health Board would have considered the possibility of settlement unless and until the time-bar issue had been determined in the pursuer's favour.
Merits of the pursuer's claim against the Health Board
[26]Even if I had held it proved, contrary to the above conclusion, that the Health Board's challenge on time-bar would probably have failed, I would not have regarded the pursuer as having any worthwhile prospect of success on the merits of her claim. According to the pursuer in the witness box, she started work as a trainee healthcare assistant in about October 1991. This involved a combination of classes and ward work. In the ward to which the pursuer was assigned, there was no significant requirement to lift patients, although the pursuer did in fact receive training in lifting and manoeuvring techniques. There was some suggestion in the evidence that the pursuer might have received training with regard to falling patients as well, but on balance I think it more probable that she had not. On the occasion of the accident, the pursuer was accompanying an independently mobile female patient to and from the toilet. The patient was large and heavily built, and walked with the aid of a zimmer. On the return journey, just after passing through a door at the end of the ward, and at a time when the pursuer was up to a yard behind her, the patient suddenly and without warning fell backwards against the pursuer, pushing her a matter of inches against the door frame where she struck her lower back. Although the pursuer described putting her arms out to try to catch the patient as she fell, there was no evidence that she actually took the weight of the patient to any material degree. The picture was rather of her being pushed a short distance backwards and ending up with her back in a vertical position against the door frame. As her husband vividly recalled, the pursuer's account when she returned home that day was of an accident in which she "... hit the base of her spine", and the pursuer herself consistently denied the accuracy of the initial entry in the GP records to the effect that she had fallen "whilst lifting a patient". Neither the patient in question, nor any other eyewitness, was led to give further support to the pursuer's narrative of what happened, nor indeed was the pursuer asked to account for certain other apparent inconsistencies in earlier statements contained within the defenders' professional files. Nonetheless, I am satisfied that the salient features of the accident were broadly as outlined by the pursuer in the witness box. Importantly, on her own account, the patient was a short distance in front of her at the time when she fell, and was definitely not being physically supported or assisted by the pursuer in any way. The pursuer just happened to be behind the patient at the material time and, as counsel for the defenders submitted, the same accident could have happened to a cleaner or to anyone else in the ward.
[27]Against the background of that narrative of events, the question arises as to what (if anything) could or should have been done to avoid the accident by responsible employers in the position of the Health Board. The pursuer herself very frankly said that even if she had had any relevant training she could not have got out of the way, and that there was nothing that she could have done to avoid the accident. In these proceedings, however, it is maintained on her behalf that she should have received training in how to deal with a falling patient, and that if such training had been provided the accident would probably not have occurred. In that connection, evidence was led from Dr Gordon Troup, as an expert witness skilled in the causes and prevention of back pain, and as the author of several editions of a widely-accepted Guide for nursing staff in this connection. As at 1991, the second edition of Dr Troup's Guide was current, and contained some reference to practical training for nurses with regard to falling patients. The main thrust of this training appeared to be that the nurse's natural instinct to save the patient at all costs should be resisted, and that the patient should instead be helped down to the floor in a controlled manner. The subsequent third edition included diagrams illustrating how a nurse might use her thigh for this purpose, but the second edition contained no diagrams in this area at all, nor indeed any text which specifically explained how the patient's controlled fall was to be managed. According to Dr Troup, it was simply up to individual trainers to supply the details, and there might even be a need, in certain circumstances, to "go down with the patient". What was essential to any of these manoeuvres, he explained, was that the nurse should have been supporting the patient in advance of the fall, with her arms under the patient's shoulders and round his or her chest. He was therefore constrained to accept that the training objective could not be achieved where the patient started off unsupported and at a distance, and that much would in any event depend on the speed with which the patient fell. The relevant edition of the Guide did not, in short, cover the fall of an unsupported patient, and even the later third edition merely advised that the nurse should in such a case react "as best she can, getting in behind (the patient) as time allows".
[28]So far as timing was concerned, Dr Troup acknowledged that all of the training required by nursing staff would take some considerable time, and would not necessarily be completed before trainees were assigned to work in the wards.
[29]In my judgment the training envisaged in the second edition of Dr Troup's Guide with reference to falling patients was not applicable to the situation which confronted the pursuer on 26 December 1991, namely that of an unsupported patient falling backwards against her from a short distance. Dr Troup's evidence essentially confirmed the pursuer's own impression that there was no available training that would have been likely to avoid the accident. Even if the training described in the later third edition of the Guide had been available in 1991, it seems to me that the pursuer would still have ended up in the danger area behind the patient as she fell. In these circumstances, I have no hesitation in holding that the pursuer has failed to prove, on the balance of probabilities, that her accident in 1991 was caused or contributed to by the lack of any effective training which the Health Board, as responsible employers, had a duty to provide at that time. Moreover, even if the second edition of Dr Troup's Guide had contained relevant advice which looked as if it would have made a difference to the pursuer's chances of avoiding injury, I would not have been prepared to hold the Health Board negligent for not having trained the pursuer in the applicable techniques prior to the date of the accident. By that time, the pursuer had only been assigned to ward work for about two months. For obvious reasons, it would not have been practicable to train her in all aspects of auxiliary nursing during such a short period, and no reason was advanced in evidence why "falling patient" training should have been given higher priority, and conducted earlier, than training for other eventualities.
[30]Against that background, I think that Mr Murdo McLeod, one of the solicitors from the Health Service Central Legal Office, was entirely justified in repudiating the pursuer's initial intimation of claim in 1992 on the basis that it disclosed no discernible ground of action. From the outset, as it seems to me, no-one on the pursuer's side had any clear idea of what the legal basis for a claim might be, and in the end the ground of fault alleged on Record turned out to be an empty assertion which not even Dr Troup was able to support.
[31]For this reason also, I hold that the pursuer has failed to prove, even as a matter of probability, that her lost right of action had an "ascertainable, measurable, non-negligible value" in and after 1995. As Lord McCluskey put it in Kyle, supra,
"Obviously, if the right to advance the claim had no value at all at the time of the negligent act, then the would-be litigant would not be entitled to an award against the negligent solicitor: having lost nothing, he would not be entitled to compensation for any loss".
On the evidence before me, I am satisfied that that is the very situation which pertains here.
Conclusion on liability
[32]In my opinion, therefore, the defenders are entitled to decree of absolvitor notwithstanding the finding of negligence which I have made against them. Such negligence would only have sounded in damages if the pursuer had been able to show, on the balance of probabilities, that it had caused the loss of a claim having some tangible value. In my judgment the pursuer has failed to show anything of the kind. That is sufficient for the disposal of the present action, but in case I am wrong in the conclusions which I have reached so far, I must now briefly indicate how I would have quantified the claim if such an exercise had been called for.
Quantification of the pursuer's claim: general
[33]At the end of Day 2 of the proof, when the pursuer's evidence-in-chief was almost completed, I made a preliminary note to the effect that I had the impression of someone who was seeking to play down a lack of symptoms in the years prior to 1997, and to attribute all post-1997 problems to the accident in 1991. That impression was confirmed and strengthened during the remainder of the pursuer's evidence. It was then further emphasised when, first, the pursuer's husband Sean
Pearson and, second, the pursuer's mother Mrs Sadie Pearson were led as witnesses. While I could accept some of what they said about the pursuer's condition at different times, and about the basic domestic assistance which they and others provided, I formed an adverse view of their credibility and reliability in two main areas. These were (i) their apparent unwillingness to acknowledge the pursuer's freedom from significant back pain during her first two pregnancies and her subsequent extended return to work; and (ii) the unqualified terms in which they purported to recollect that from 1991 onwards the pursuer's back had never got better, and had indeed gradually deteriorated to the point where a fusion operation was undertaken in 1998. The trouble with such testimony was that it was at variance with much of the independent evidence bearing on this aspect of the case, notably the GP records, the pursuer's employment records and the expert orthopaedic evidence of Mr Klas Buring and Mr Michael McMaster. Even the pursuer's own evidence was in important respects contradictory of what her husband and mother said.
[34]In summary, the GP records showed (i) that between December 1991 and June 1992 the pursuer's complaints of back pain markedly diminished, the three principal entries reading "O/E good mobility of lumbar spine ..." (February 1992); "Back not too bad" (May 1992); and "Back better" (June 1992). Significantly, the first of these entries was accompanied by a note suggesting a "supratentorial element" or anxiety reaction. By early 1992 the pursuer was pregnant with her first child, and in 1993 she became pregnant again with her second. After July 1992 she attended her doctor with a variety of complaints but, as she herself said in evidence, her back was substantially symptom-free during pregnancy. Between early 1994 and 1997 the GP records were again remarkable for the absence of recorded complaints of back pain, and this coincided with the pursuer's return to work, first with B & Q and then with Mothercare. Overtime and weekend work were regular features during this period, and it was not until the latter part of 1996 that the pursuer suddenly began to experience back pain of greater severity than at the time of the accident. After an initial episode of groin and back pain in June 1996, which involved no restriction of movement and seems to have resolved fairly quickly, complaints of severe disabling back pain were recorded in October 1996 and January 1997, coupled with apparent instability in the pursuer's knee and the initial recorded manifestations of a complaint known as "snapping hips". In about April 1997, when the pursuer first saw Mr Buring at Falkirk Royal Infirmary, he noted her as reporting that her six-year history of back pain "started without trauma", although in the witness box he appeared uncertain as to whether the pursuer had been referring to the recent onset of significant back pain or to her initial complaint some months before the accident in 1991.
[35]Notwithstanding these contemporaneous records, the pursuer claimed in evidence that she had suffered continuing back pain of varying severity throughout the period from 1991 onwards, and had merely tolerated it to a greater or lesser degree with the aid of painkillers. However, given the noticeable scarcity of recorded complaints of significant back problems from someone who frequently attended her GP's surgery with complaints of whatever symptoms troubled her from time to time, I am not prepared to accept her evidence in this connection. In my opinion, it is much more likely that the contemporaneous medical and employment records give a broadly accurate picture of the state of the pursuer's back between 1991 and 1997, and I am fortified in that conclusion by the expert orthopaedic evidence which was led in this case.
[36]The principal expert witness led on the pursuer's behalf was Mr Klas Buring, M.D., Ph.D., a Swedish orthopaedic surgeon who commenced practice in this country in about 1996. He confirmed at once that, contrary to the GP's mistaken assumption, the pursuer's Grade 2 spondylolisthesis - a 50% forward slippage of the fifth lumbar vertebra against the first sacral vertebra - was a condition which pre-dated the accident in December 1991 and was not caused by it. He went on to explain that while such a slippage might never give rise to pain, it might be rendered symptomatic, often by trauma of some kind. At one point in his evidence, Mr Buring expressed the view that the accident in December 1991 had brought on instability and consequent pain from the pre-existing spondylolisthesis. In cross-examination, however, it emerged that he was thinking in terms of possibilities only, and that since six years had elapsed before he first saw the pursuer he was not really able to offer any definite conclusion on the issue of causation. He acknowledged that the validity of any view would depend heavily on the accuracy and reliability of the pursuer's history, and confirmed that when he saw the pursuer in 1997 trauma was not in issue as a precipitating factor. Even now, he had no clear picture of the mechanism of the pursuer's accident. Where he disagreed with the defenders' expert Mr McMaster, however, was in relation to the likely progress of the pursuer's spondylolisthesis if she had suffered no accident in 1991. In particular, he disagreed with Mr McMaster's opinion that, without any accident, the condition of the pursuer's back would have been likely to deteriorate, with the onset of disabling pain, within a few years.
[37]In my view, Mr Buring was undoubtedly doing his best, as an expert witness, to help the Court to draw appropriate inferences from the established facts, including the history given by the pursuer from time to time. However, I was ultimately unable to accord his evidence a great deal of weight. As already indicated, much of what he had to say involved a meticulous examination of possibilities, as opposed to the expression of firm opinions or conclusions. In part, this could be explained by reference to the relatively late stage at which he first saw the pursuer, and by the unsatisfactory nature of the history which he was able to obtain from her. But in addition, I formed the clear impression that Dr Buring had limited clinical experience of treating patients with spondylolisthesis, and that to a material degree his evidence was based on a reading of certain technical papers which were not in process. His career had been in general orthopaedics, with spinal work forming only a part of that; he had had to send out for specialist equipment before performing the spinal fusion operation on the pursuer in 1998; following that operation, he considered referring the pursuer for possible further fusion at the Spinal Unit at Nottingham; and under cross-examination he became somewhat confused as to the statistical incidence of spondylolisthesis in this country by comparison with a different, but sometimes related, condition known as spondylolysis.
[38]More importantly, I took the view that Mr Buring's conclusions, where any conflict arose, could not stand against the impressively qualified and compelling evidence of the defenders' expert Mr Michael McMaster, M.D., F.R.C.S., (to whose views the pursuer's GP Dr McInnes ultimately deferred). Mr McMaster is no stranger to the Court of Session, being well-known as one of the leading spinal orthopaedic surgeons in the United Kingdom. His knowledge and experience in that field are probably unsurpassed, with many of his patient referrals being "tertiary", that is, coming from other consultants desirous of obtaining the benefit of his substantial experience and expertise. On the subject of spondylolisthesis, Mr McMaster explained how he would routinely see several patients a week with this condition, whereas a general orthopaedic surgeon (such as, for example, Mr Buring) might not see that number in a year. He was thus in a position to speak with authority on the nature and causes of the condition; on the likely role played by trauma in its development and symptomatology; and on the likely prognosis for a patient like the pursuer who was diagnosed with a Grade 2 (relatively severe) spondylolisthesis in her early twenties.
[39]Mr McMaster's opinion in this case was typically forthright. Agreeing with Mr Buring that the pursuer's Grade 2 spondylolisthesis pre-dated the accident by a period of years, and was in no way caused by it, he expressed the opinion that, at most, the accident which the pursuer described in 1991 brought about a two-year acceleration of symptoms which would in all probability have occurred anyway even if no accident had occurred. These symptoms comprised the onset of acute, but short-lived, mechanical low back pain which gradually resolved over a matter of months to leave only intermittent, "grumbling" discomfort of a minor nature. The symptoms of which the pursuer complained by 1997 were, however, of an entirely different kind and were neither caused nor contributed to by the accident in 1991. On the contrary, they would probably have supervened in any event owing to the relative severity of the pursuer's spondylolisthesis and the significant mechanical stresses which that imposed, not only on the spine itself with consequent risk of degeneration, but also on the supporting muscles and soft tissues. In 1997, the pursuer's complaint was of severe, disabling back pain, accompanied by radiation down the right leg. This rendered her unfit for any form of employment or domestic activity and, for the first time, suggested that the possibility of an operation to fuse the spine might merit consideration. Mr McMaster's view was that, even in the absence of any specific trauma such as the accident in 1991, the pursuer's Grade 2 spondylolisthesis would have been likely to cause disabling pain of this nature at some time between her twenties and her forties. Accordingly, the onset of the predicted disabling pain in 1997 could readily be attributed to that underlying condition. What could be said with confidence was that the effects of the accident were comparatively minor and had resolved within a maximum period of two years, that is, well in advance of the pursuer's return to work in early 1995. Significantly, in my view, Mr McMaster's evidence in this connection was consistent with the contemporaneous medical and employment records, and in particular with the four-year absence, in the GP records from 1992 onwards, of recorded complaints of disabling back pain, muscle spasm or restricted movement.
[40]If it had been necessary for me to do so I would have held that, on the balance of probabilities, the effects of the pursuer's accident in 1991 were relatively minor, diminishing within a few months to no more than an occasional "grumbling" discomfort; that similar symptoms would have been likely to arise in any event from the pursuer's underlying spondylolisthesis by about the end of 1993; and that on the evidence before me the pursuer's disabling back trouble from 1996/7 onwards was not attributable to the accident in 1991.
[41]Despite Mr Buring's natural modesty in this regard, the fusion operation which he performed in early 1998 appears to have been reasonably successful, in the sense that it relieved the pursuer's pre-operative back pain, including the pain radiating down her right leg. It also allowed her to stand upright where, on her first consultation with Mr Buring, she had appeared using a stick and with her upper body bent forward by 40 degrees. Any continuing back pain at that stage was at a tolerable level, and came from higher up in the spine. From then on, however, although complaints of back pain were noticeably few and far between, the pursuer appeared to develop a wide range of different problems which markedly restricted her activities. These included "snapping hips", a subjective clicking sensation over the outer aspect of each hip which Mr Buring tried to relieve by means of successive operations involving partial severance of the muscle/tendon thought to be responsible. They also included disabling neck and arm pain for which the pursuer regularly wore a cervical collar; disabling wrist pain, with overnight clawing of the fingers, for which the pursuer habitually wore a wrist splint; and (according to the pursuer) continuing back pain for which she required to use one or more sticks outside the home environment.
[42]There was some dispute in the evidence as to whether these various complaints had a genuine clinical basis. Both Mr Buring and the GP accepted that some degree of psychological overlay was present, but were anxious to take the pursuer's complaints at face value so far as possible. Mr McMaster, on the other hand, was strongly of the view that the pursuer's complaints had no clinical justification; that the "snapping hips" complaint was notoriously one of hysterical origin; that the hip operations were unnecessary and liable to exacerbate any perceived problem; that the pursuer's neck was shown to be entirely normal on a highly sensitive MRI scan; that her neck collar, wrist splint and sticks were positively detrimental to her health and well-being; and that what she really needed was help and encouragement to realise that she was not in fact significantly disabled, and could beneficially resume virtually all of her normal activities.
[43]In view of my decision on the merits of this action, I do not require to resolve all of these issues. Suffice it to say (i) that Mr McMaster's general approach seems to me to have rather more to commend it than an approach which has resulted in the pursuer, essentially on her own subjective assessment, becoming increasingly disabled; (ii) that I have no hesitation in accepting Mr McMaster's evidence that none of the pursuer's post-1997 complaints can be attributed to the accident in 1991; and (iii) that I therefore reject the contrary claims advanced by the pursuer and her family.
[44]Accordingly, for the purposes of any settlement or proof, the pursuer's claim against the Health Board would in my judgment have comprised no more than (i) solatium for pain and suffering during the first six months after the accident, bearing in mind that the accident probably accelerated, by around two years, the sort of mechanical pain and discomfort that the pursuer would have experienced anyway due to her underlying spondylolisthesis; (ii) loss of earnings during the same period, bearing in mind that the pursuer would have stopped work anyway during her pregnancies in 1992 and 1993; and (iii) a figure to reflect the value of the personal and domestic services which the pursuer received from members of her family in the immediate post-accident period.
Solatium
[45]As regards solatium, counsel for the pursuer referred me to the cases of Stewart v Highland Health Board (8 October 1987, unreported) and Collins v Gates Rubber Co Ltd 1992 SLT 622, submitting that both supported an award of solatium in the region of £15,000. These were, however, cases in which the pursuer had suffered severe continuing pain and disability as a result of the relevant accident. Counsel for the defender suggested that the figure of £15,000 was much too high, and that an award of no more than £5,000 would be justified. In this connection, she referred me to the cases of McCluskey v Lord Advocate 1994 SLT 452; Higgins v Tayside Health Board 1996 SLT 288; and McCarvel v Strathclyde Fire Board 1997 SLT 1015. The figure of £5,000 was, she said, based on the assumption that only the GP's evidence would have been available for any proof or settlement in 1996/7. Had the evidence of consultants such as Mr McMaster been obtained at that time, then the appropriate figure would have been lower. In reply, counsel for the pursuer indicated that if Mr McMaster's evidence were to be accepted he would not regard the defenders' proposed figure of £5,000 as unreasonable.
[46]In this connection, a considerable amount of evidence was led at the proof as to when an action against the Health Board, raised in reliance on section 19A of the 1973 Act, would have been likely to come to proof in Falkirk Sheriff Court. In particular, this matter was addressed by Mr Brophy, Mr Thomson and Mrs Fraser, whose evidence in this area was necessarily hypothetical and speculative. However, it was maintained for the pursuer that, for various reasons, no proof would have taken place until, at the earliest, late 1996/early 1997; whereas the defenders' position was that any proof would have taken place no later than the first half of 1996. The precise date at which a hypothetical proof would have taken place does not now matter very much, since I have held that the pursuer has failed to prove that her later problems (which would probably not have been foreseen at a proof in late 1995/early 1996, but could well have been evident by the date of a proof in late 1996/early 1997) were attributable to the accident in 1991. If a precise date had been important, I would have been inclined to regard the defenders' timescale, spoken to by Mr Thomson and Mrs Fraser, as over-optimistic, principally on the ground that it made no allowance for commonplace contingencies such as amendments, recovery of documents, incidental motions, changes of representation and so on. In my opinion, Mr Brophy was probably nearer the mark in estimating that a proof on the merits would probably have taken place in late 1996/early 1997, by which time the onset of the pursuer's severe back trouble, and indications of some of her other complaints, might well have been apparent and would then have been considered by the Court.
[47]Counsel for the pursuer submitted that, whatever hypothetical proof date was preferred, I should quantify the claim by reference to the decision of the Court of Appeal in Charles v H & J Jones & Jenkins 2000 1 WLR 1278. In that case, it was held that although damages in a case of this kind required to be assessed by reference to the hypothetical state of matters at the notional trial date for the "lost" action, it was nevertheless legitimate for the Court also to take account of later knowledge supervening, on points that were previously uncertain, between the notional trial date and the actual date of trial in the professional negligence proceedings. On the strength of this decision, counsel for the pursuer argued that the notional proof date for the pursuer's claim against the Health Board was immaterial because all subsequent developments in her condition could properly be taken into account in assessing the value of her "lost" claim.
[48]In my opinion, however, with the greatest of respect to their Lordships of the Court of Appeal, the precise import of the decision in Charles is not as clear as counsel for the pursuer suggested. On the one hand, their Lordships bore to follow an earlier decision of the High Court of Australia in Johnson v Perez (1988) 166 SLR 351, in which it was held that evidence of events after the plaintiff's course of action arose might legitimately assist the Court "... in piecing together the case that could, but for the negligence of the solicitor, have been made out in the trial of the earlier action". Such evidence would be received "... for the purpose of assessing the damages that the plaintiff was likely to have been awarded had the action gone to trial," and it was acknowledged that difficult questions might arise as to what was known or foreseeable at that earlier time. On the other hand, as appears from the opinion of Sir Richard Scott V-C at p.1295, their Lordships expressly reserved their opinion on the question whether events subsequent to the notional trial date, the effect of which, if they had happened in time, would have been to increase or reduce the damages awarded at the notional trial, should be left out of account or taken into account in assessing damages for solicitors' negligence in a case like the present. Nevertheless, in the course of what were arguably obiter remarks at pp.1290-1, Swinton Thomas LJ appeared to affirm the legitimacy of taking into account significant events which would ex hypothesi have been unknown and unforeseeable at the notional date of trial. The difficulty is to know how far these remarks can be reconciled with the decision in Johnson, and with the matter on which their Lordships' opinion was reserved.
[49]In the absence of clear and compelling authority, I would not have been disposed to assess damages for a "lost" action by reference to matters which could not have been known or foreseen at the notional trial or settlement date. Suppose A and B suffer substantially the same injuries in the same accident caused by the same wrongdoer: can it really be right that A, whose action is lost through his solicitors' professional negligence, may end up with a claim substantially higher, or substantially lower, than B whose claim is timeously raised? And what if it is held that A's claim would probably have been settled extra-judicially: is that settlement to be judged by reference to matters of which neither party could possibly have been aware at the material time? Further, suppose that two wrongdoers are jointly and severally liable for the same pursuer's loss, and proceedings are timeously commenced against one but not against the other: can the notional liability of the latter, assessed in professional negligence proceedings, seriously be taken at a level bearing no resemblance to the liability of the former? Such questions, as it seems to me, must logically be answered in the negative if comparative justice is to be maintained, and if the true purpose of an award of damages is to restore a pursuer, so far as a monetary payment can do so, to the position in which he would have been if the wrong complained of had not occurred. Counsel was unable to refer me to any Scottish case in which his interpretation of the decision in Charles had been adopted, and for the reasons which I have given I would have declined to adopt it here.
[50]In my view a fair figure for solatium in this case would have been £4,000, allowing for an acute phase of pain and restriction of movement for some weeks after the accident, followed by gradual improvement over the first half of 1992 and a susceptibility thereafter to intermittent discomfort of a minor nature. On the basis of Mr McMaster's evidence, which I accept, the pursuer would probably have suffered similar problems in any event by the end of 1993 on account of her underlying spondylolisthesis.
Loss of earnings
[51]So far as wage loss is concerned, there is no evidence that by mid-1992 the pursuer's back condition was any worse than it was during her subsequent pregnancies, or during the period of her successful return to work in 1995 and 1996. In my view, therefore, an award of wage loss would similarly have been limited to the period of six months immediately following the accident in December 1991. Application of the agreed monthly rate of £467 (paragraph 6 of the principal Joint Minute of Admissions) produces a figure of £2802. After deduction of relevant sick pay and statutory sick pay received by the pursuer and amounting to £1356, a reduced figure of £1446 is brought out.
Services and outlays
[52]Turning to services, I heard evidence from the pursuer, her husband and her mother regarding the extensive personal and domestic assistance which, according to them, the pursuer had required from 1991 to the present day. I also heard evidence from Mrs Verity Marshall, an associate of Buckle & Grant, a firm specialising in the assessment and valuation of physical aids and personal assistance in the context of reparation claims. For the purposes of this case, Mrs Marshall's report proceeded upon the assumption that the pursuer had been disabled by back pain from 1991 onwards, and contained (i) costings for various capital purchases alleged to be necessary as the result of the accident and (ii) tables of "discountable" figures to show what it would have cost if the personal and domestic services which the pursuer received from her husband and mother had instead been provided by a qualified nurse. Mrs Marshall also confirmed that she had proceeded on the basis of an interview with the pursuer, in which she was informed of escalating needs from 1991 onwards, including (even now) a need for assistance in washing her hair and a need for an outdoor wheelchair along with wheelchair access for a car. In the circumstances discussed earlier in this opinion, any information given by the pursuer along the lines spoken to by Mrs Marshall must be regarded as exaggerated and untrue. Clearly, Mrs Marshall had no option but to comply with such instructions as she received, and to proceed upon the assumptions and information with which she was provided, but I have to say that I found her evidence unhelpful in three principal respects. These were (i) the fact that her tables and calculations made no allowance at all for the extent to which the pursuer's need for aids and assistance might be attributable to factors other than the accident; (ii) the fact that no breakdown was given of the increasing hours of services quoted from 1991 onwards; and (iii) the absence of any explanation as to why the selection of nursing rates was thought appropriate in the first place, and of any guidance as to the method by which these rates might be discounted to a realistic level. In addition, Mrs Marshall's figures made no allowance for taxation.
[53]In the end of the day, most of these difficulties have been rendered academic by the very limited scope of the claim for services which I consider would have been open to the pursuer in the present case. However, echoing the comments made by Lord Gill in Kennedy v Lees of Scotland Ltd 1997 SLT 510, at pp. 513-4, and by Lord Eassie in Stirling v Norwest-Holst Ltd (No 2) 1998 SLT 1359, at pp. 1367-8, I find it hard to understand why services claims like this one are so often pitched at an unrealistically high level, with reliance being placed on figures which bear no direct relevance to the situation in issue. The pursuit of such claims tends to occupy an inordinate proportion of the time allotted for any proof; it runs the risk of alienating such sympathy as the Court may feel for an injured pursuer; and the end result is, not infrequently, a modest award owing little or nothing to the detailed evidence which has been presented.
[54]In this case, I am prepared to accept that, for some time after the accident in December 1991, the pursuer required occasional family support of a limited personal and domestic nature, especially from her husband. Apart from the help which she needed early on with dressing and bathing, this support did not appear to extend beyond washing, ironing and shopping, and diminished in intensity over a period of months. To some extent, as it seems to me, the pursuer's husband and family might have been expected to share the burden of these day-to-day activities anyway, with the result that the claim properly reflects no more than the excess of services attributable to the pursuer's temporary indisposition following the accident in December 1991. Looking at the matter broadly, and taking comparative note of the data provided by Mrs Marshall, I consider that justice would have been done (had I required to address this matter) by a lump sum award of £650. Such an award would have been within the same range as those made in the cases of McCluskey, supra; Higgins, supra; and Gallacher v Lanarkshire Health Board 1999 SLT 166, all of which were cited by counsel for the defenders in the course of her submissions at the end of the proof.
[55]So far as capital outlays on aids and equipment are concerned, I am not persuaded that anything of this nature was necessitated by the accident in 1991, as opposed to the pursuer's underlying spondylolisthesis or any of the various unconnected complaints which arose in and after 1997. I would therefore have made no award in this connection.
Conclusion on quantum
[56]In the foregoing circumstances, I would have valued the pursuer's overall claim on a full liability basis at £8290, comprising (i) past solatium of £4000; (ii) wage loss totalling £1446; (iii) services amounting to £650; and (iv) interest on all of these component sums at 8 per cent per annum for 41/2 years from 30 June 1992. However, I do not believe that if the pursuer had survived a debate or preliminary proof on the subject of time-bar the case would have been the subject of a full-blown proof in Falkirk Sheriff Court. On the contrary, given the modest value of the claim and the difficulties which the pursuer clearly faced on the merits, it is in my view much more likely that the claim would have been settled in 1996 shortly after any determination of the time-bar issue in pursuer's favour. At that time, all benefits received by the pursuer would have required to be repaid to the Compensation Recovery Unit by the defenders in the event of any award or settlement exceeding £2,500. In the present case, the benefits received by the pursuer were far in excess of that figure, amounting to nearly £12,000, with the result that an award or settlement would have had to be considerably higher than my own assessment before any damages became payable to the pursuer at all. In such circumstances, as was explained in evidence by the two solicitors from the Health Board Central Legal Office, settlement at a level within the £2,500 limit was often attractive to both pursuers and defenders alike. A settlement along these lines would have been attractive in the present case, and the principle of disposing of the claim in this way would also have been attractive to the Health Board which had since 1995 assumed direct responsibility for all litigation expenses. The pursuer in this case would (as I have found) have been legally-aided, and this would have been a further factor militating in favour of extra-judicial settlement. In my opinion, therefore, whatever might have been the value of the claim had it been determined after proof, the likelihood is that it would in fact have been settled in 1996 at the sum of £2,500 inclusive of interest to that date. Had I been awarding damages to the pursuer in this case, the decree in her favour would have been for payment of that sum together with interest thereon at 8 per cent per annum from (say) 1 December 1996 to the present date.
Decision
[57]However, for the reasons given earlier in this opinion, I consider that the pursuer's claim against the Health Board would have failed to survive a debate or preliminary proof on the subject of time-bar, and that it was in any event devoid of merit. Accordingly, in my view, the defenders in the present case are entitled to be assoilzied. I shall therefore sustain the second and third pleas-in-law for the defenders, repel the pleas-in-law for the pursuer, and pronounce decree accordingly.