| OUTER HOUSE, COURT OF SESSION [2012] CSOH 122 |
| PD849/11 | OPINION OF J. GORDON REID Q.C. (Sitting as a Temporary Judge) in the cause FIONA DICKIE Pursuer; against MOHAMMADREZA KHANDANI Defender: ________________ |
Pursuer: Galbraith; Digby Brown LLP
Defender: Stewart, solicitor-advocate; Simpson & Marwick
20 July 2012
Introduction
[1] This is an action of damages for personal injuries arising from a road traffic accident. Liability was admitted. There is no contributory negligence. In summary, the pursuer, who was 21 years old at the time, suffered soft tissue neck and back injuries. A proof before answer on quantum took place on 22, 23, 24 and 25 May 2012. The pursuer sues for £55,000. Her Statement of Valuation claims just under £20,000. The Defender's valuation was £3,500.
[2] The principal issues between the parties were solatium, in particular, the extent of her injuries and their effect on her future employability.
[3] I heard the evidence of the pursuer (24 years old at the date of the proof), her social partner (Brian Morrison), her mother (Helen Dickie), a former work colleague (Leigh McAuley), an events/public relations promoter (Murray Roxburgh), Mr David Steedman, consultant orthopaedic surgeon at the Royal Infirmary of Edinburgh, and Murrayfield Hospital, Edinburgh and Mr Matthew Moran, a consultant trauma and orthopaedic surgeon at the Royal Infirmary of Edinburgh. The defender led the evidence of Mr Michael J McMaster, a consultant orthopaedic spine surgeon at Murrayfield Hospital.
[4] Various matters relating to medical records, past wage loss and interest were agreed in a Joint Minute.
FACTS
Circumstances of the Accident
[5] Shortly after midnight on Friday 10 April 2009 (Good Friday), the pursuer was driving her Peugeot motor car along South Clark Street, Edinburgh at about 25‑30mph. A Suzuki 4x4 type vehicle, driven by the defender, in the same direction, passed her on the inside, then, to avoid a parked car, pulled out and drove into collision with the nearside of the pursuer's vehicle. The pursuer, who was wearing a seatbelt, braked and stopped. Her vehicle's airbags did not inflate. The defender turned left into East Preston Street. The pursuer followed the defender, flashed her headlights, and the defender eventually stopped.
[6] The police were summoned. Although advised to go to the hospital, the pursuer did not do so. She called her social partner, Brian Morrison who attended the scene along with the pursuer's mother.
[7] The pursuer was shocked and distressed. She suffered bruising to her chest, pain in her neck and back.
[8] As liability was admitted, there was not much evidence about the collision. There was some evidence from the pursuer, which I accept, that a nearside wheel‑arch of the pursuer's vehicle was damaged. The front nearside door was also damaged rendering it difficult to open. Repairs to the pursuer's vehicle cost about £800. From that evidence and the medical evidence, which I discuss below, I conclude that the impact was sufficient to cause an injury to the pursuer's back as well as to her neck.
Pre-Accident Health
[9] The pursuer, who was born on 31 October 1987, has led a healthy, active lifestyle. She was reasonably fit. She attended a local gym regularly. She had no history of back or neck pain.
Pre-Accident Employment
[10] The pursuer was employed as a Customer Sales Manager by the travel agent, Thomas Cook, at the Gyle Centre, Edinburgh. She had been so employed for several years. She was one of two such sales managers, the other being Leigh McAuley. The pursuer had a range of responsibilities and duties, which included dealing with customers, complaints and staff. From time to time, she had to lift and carry about the premises heavy bundles of brochures and promotional materials.
[11] She was also employed part time as a Team Leader by a company named Global Brands Limited. This company carried out promotional work for drinks companies, and others at nightclubs and various other venues and events. In particular, she carried out promotional work for VK (Vodka Kick), a particular brand of drinks, initially as a promotional model and subsequently as a team leader. This work began in the second half of 2008 on an informal cash-in-hand basis. She was put on the payroll in early 2009 and details of her gross and net earnings have been produced. This work was over and above her full time day job with Thomas Cook. She was returning home from one such event when the accident referred to above occurred.
[12] As a team leader with Global Brands, it was her duty to liaise with the venue manager, co‑ordinate the promotional activities, and ensure sales targets on the night of the promotional event were met, and to handle money. She was also responsible for the safety of her own team from Global Brands/VK attending the event. At some point prior to the accident, a director of VK indicated to her, informally, that she might well be a suitable candidate for a full time position as a sales manager, should a vacancy arise.
[13] Wage records from Global Brands Ltd have been produced and cover the period between 23/1/09 and 15/10/10. They disclose that she worked for that company on about two to three weeks each month (for several nights each week and sometimes at weekends) until Christmas 2009. Thereafter, she received five payments (three in April 2010, one in August and one in October 2010). These appeared to be partly isolated events (one off) and partly in relation to work she had forgotten to claim for. Over the 35 recorded weeks her average net weekly wage was £66.07; if the five payments in 2010 are excluded the average is £71.27. Her wages varied depending on the number of hours worked and how far the pursuer had to travel to work. Her evidence, which I accept, was that on occasions she had to travel some distance to various venues and received a generous petrol and mileage allowance. The records show a number of quite high weekly payments which are probably attributable to such circumstances. The bulk of the net weekly payments vary between about £28 and £56.
[14] The pursuer is an attractive young woman and also carried out some work as a model, usually at charitable events. She did not, however, wish to have a career as a model. The part‑time work as a model began in about 2008. She had a profile or entry on various amateur modelling websites such as Model Mayhem. This fitted well with her part time promotional work. It can thus be seen that the pursuer was hard working and ambitious.
Post-Accident Health
[15] After the accident, the pursuer returned, in the early hours of Good Friday, to her home at Tranent where she lived with her mother. Her social partner also stayed there from time to time, but they were not living together as husband and wife. The pursuer felt sick and her body was in pain. On Sunday 12 April 2009, the pursuer telephoned NHS24. Painkillers were suggested and she was advised to consult her General Practitioner (GP) if the pain persisted. It was a holiday weekend and she had been unable to see or contact her GP. The record of this call, in the form of an email dated 13 April 2009, states that the pursuer was complaining of pain down her back and across her shoulders. She had also had a nose bLeighd. On 14 April 2009, the pursuer telephoned her GP complaining of back and neck pain. She was seen at the GP's surgery later that day and pain in the right shoulder and neck and both sides of the chest wall was noted in the GP records.
[16] The pursuer's neck and back pain continued with varying degrees of severity. She initially had difficulty getting in and out of bed, showering/bathing, and getting dressed. She was unable to perform domestic chores such as carrying the hoover upstairs. Brian Morrison and her mother Helen Dickie assisted her although Mr Morrison provided more assistance than Helen Dickie. Helen Dickie and Brian Morrison spoke to these matters and I accept their evidence. Her mother said the pursuer complained a great deal about her back. Her mother regularly accompanied the pursuer on shopping trips and helped her with her bags and continues to do so.
[17] The pursuer consulted a solicitor at some point between April and September 2009 with view to claiming compensation for her injuries. Arrangements were made for her to see Mr Steedman. He examined her at Murrayfield Hospital on 25 September 2009. The physical examination took ten minutes, with twenty minutes taken up with noting the pursuer's history i.e. a total of about half an hour. His report, dated 29 September 2009, records his findings which he spoke to and amplified in evidence.
[18] He notes the pursuer's account of the circumstances of the accident and her injuries. He notes that she said that she had inter alia discomfort in her lower back on the day after her accident. He also records her as stating that neither her neck pain nor her low back pain had resolved and that both continued intermittently; and that standing during the course of her work aggravated her lower back symptoms. He regarded her as a straightforward lady who gave a clear account of her injuries and did not exaggerate. That assessment coincides with my own view, which I discuss further below.
[19] Mr Steedman's conclusion was that, as a result of the accident, the pursuer sustained a soft tissue injury to her chest wall in the form of bruising from seatbelt restraint. She sustained a soft tissue injury to her neck; intermittent pain and discomfort continued for which she took Diclofenac. She had a full range of neck movement. He suggested physiotherapy. In relation to her back, he detected mild restriction in active lumbar spine flexion. She walked normally; there was no tenderness but a good range of lumbar deflection with a mild range of discomfort and anticipated resolution of her complaints after three months. He did not anticipate any further impact on the pursuer's employment. Overall, he found no evidence of clinical abnormalities.
[20] Mr Steedman noted the pursuer as stating that her neck pain had improved by 50‑60% but her lower back pain only by 30‑40%. These percentages do not mean very much. All that can be taken from this is that the pursuer was reporting some improvement in her neck but less improvement with her lower back. The pain was intermittent so the pursuer's view might well be coloured by the nature and extent of pain in the previous few days or even on the day of the examination.
[21] At this stage (September 2009) the pursuer was controlling her back pain with painkillers and while at work she would get up from her desk and walk about from time to time in an attempt to ease any pain which had built up through sitting for a lengthy period.
[22] She was seen by her GP on 8 January 2010 and referred to Roodlands Hospital, Haddington, for physiotherapy. In her referral letter, the GP noted that the pursuer has had low back pain on and off since April. The physiotherapy began in March 2010. The physiotherapist's notes record that the pursuer suffered pain when standing for long periods; she could not wear high heels anymore; the pursuer's back pain was aggravated by picking up a box one weekend and by lifting up her young niece on another occasion. The notes record that the pain keeps flaring up due to small things.
[23] On 27 April 2010, the physiotherapist is recorded as telephoning the pursuer's GP stating that the pursuer's back pain was worse.
[24] The pursuer was discharged from physiotherapy on 13 May 2010; the records note little improvement in her back although her neck pain had gone. The physiotherapist's Discharge Summary records that the pursuer's back was painful on flexion, extension and right side flexion, and throughout the lumbar spine on palpation. The summary noted that since her initial assessment the pursuer had suffered a number of episodes of severe back pain triggered by work related tasks. Further investigation was recommended by the physiotherapist in a letter of the same date to the GP.
[25] She was seen by her GP on 20 May 2010. Her back pain is described as ongoing for a year and was worsening. The GP referred the pursuer to Dr Fisken at Roodlands Hospital. In her referral letter, the GP records that the pursuer's back pain persists, and that the pursuer feels it is getting worse; the pain is getting her down and she is taking increasing amounts of Diclofenac.
[26] She was seen by Dr Fisken at Roodlands Hospital, Haddington on 6 August 2010. Dr Fisken is a Hospital Practitioner within the East Lothian Musculoskeletal Service at Roodlands. His note records that the pursuer has experienced low back pain since the accident in April 2009; that this was particularly severe if she is on her feet for any length of time. His diagnosis was chronic low back pain following a road traffic accident. He arranged for a MRI scan to be taken. She had an MRI Scan in September 2010 which showed normal lumbar spine appearances for her age. She was seen by Dr Fisken again on 5 November 2010. The records show that he noted that her back pain had quite clearly come on after a road traffic accident. He recommended Amitriptyline and referred her for further physiotherapy. He also noted that her compensation claim was not in the forefront of her thinking just now. His referral letter referred to ongoing low back pain following on from a road traffic accident in April 2009. Dr Fisken also suggested core strengthening exercises and Pilates. The pursuer subsequently engaged the services of a personal trainer at some point in the first half of 2011 and paid him £250, on or about 14 June 2011, for ten sessions which was a block booking. In the event she only attended four or five sessions. She did not find them beneficial.
[27] Mr Moran examined the pursuer on 25 January 2011 and issued a report on 31 January 2011. He also notes the pursuer's account to him of the circumstances of the accident and her injuries. It is similar but not identical to the account recorded by Mr Steedman, whose report Mr Moran had seen. The main theme of the account of the pursuer's injuries is neck and low back pain, which was moderate and intermittent by the date of Mr Steedman's examination. He noted that the low back pain was aggravated by long periods of sitting, or standing (particularly when she wore high heels). He records that physiotherapy helped the pursuer's neck pain. He notes that the pursuer described her neck as essentially symptom free.
[28] Mr Moran records that pursuer has taken a variety of painkillers including Diclofenac, Tramadol, Codeine, Paracetamol and Ibuprofen; and that she currently took Amitriptyline at night. He explained in evidence, which I accept, that Amitriptyline had a sedative effect and was typically taken at night. Mr Moran concluded that the pursuer gave an accurate and straightforward account of her history, accident and its after effects, and was consistent throughout her examination. His examination revealed a full range of pain free movement of her neck; she had fully recovered from the neck injury. She had mild restriction in the range of motion of her back with discomfort at extremes.
[29] He concluded that the pursuer sustained a soft tissue injury to her lumbar spine with no indication of injury to the deep vital structures of the back. In his view, she had genuine ongoing symptoms of moderate severity, which he expected would continue in the medium term. He considered that she would not be able to tolerate a job with prolonged standing without rest or with a heavy manual component or significant repetitive light manual duties. He suggested that if further physiotherapy did not improve her condition, her symptoms would best be managed through a Pain Clinic.
[30] Overall, his conclusion was that there was no organic cause for the pain the pursuer was suffering. Mr Moran noted that he could not account for the exquisite tenderness felt to light palpation of the paravertebral muscles. He recorded that other signs of inappropriate symptomatology were negative and concluded that the pursuer had genuine ongoing symptoms in relation to her low back. He considered that there may be an element of psychological overlay, which he stressed did not mean that the pursuer was not actually suffering pain. He looked for inconsistent reactions during his examination but found no gross inconsistency. His examination of the medical records did not reveal any significant inconsistencies.
[31] In a letter dated 12 September 2011, Mr Moran commented on Mr McMaster's Report dated 19 July 2011. Essentially he disagreed with the view that the pursuer was fabricating her symptoms and misrepresenting the presence of pain. The description of the accident as narrated to him was of a sufficient severity to cause back problems. He disagreed with Mr McMaster's analysis of the medical records to the effect that there was no reference to back pain until 6 August 2010.
[32] In evidence, he was asked about Waddell signs. He had alluded to these in his letter dated 12 September 2011. His view was that the presence of such signs should not be taken as indicating that a patient was fabricating his symptoms. Rather, it was evidence that the pain could not be explained on a purely anatomic or organic basis. Mr Moran said that both he and Mr McMaster had elicited Waddell signs in the course of their examinations of the pursuer.
[33] Waddell signs are, as I understand it, on the basis of the relatively brief chapter of evidence devoted to this topic, a collection of physical signs which may indicate a non‑organic or psychological component to persistent low back pain. They include, or rather are revealed by disguised testing, overreaction to testing, and unexplained tenderness. They do not rule out organic causes. Mr Moran's view, which I accept, was that the majority of medical literature did not disclose a relationship between the Waddell tests and malingering. His view was that the Waddell tests were not designed to identify deception, fabrication or malingering and were not good tests for doing so; and he did not find them enormously helpful in this regard. In his view, while it was possible that the pursuer was exaggerating and falsifying her symptoms, this was unlikely and on balance he would not accept that she had done so or was doing so.
[34] The discussion in the evidence was, however, brief and no conclusion can be drawn which supports any view that the pursuer was attempting to deceive or exaggerate pain for the purposes of financial gain. Viewing the evidence as a whole leads to the very opposite conclusion. She has not attempted to deceive or fabricate or for personal gain.
[35] On 22 February 2011 the pursuer was seen by her GP. The records refer to the pursuer's chronic back pain and record a request for an increased dosage of Amitriptyline.
[36] Mr McMaster examined the pursuer at the Murrayfield Hospital, Edinburgh on 19 July 2011 and produced a report bearing the same date. He had reviewed the pursuer's medical records from 14 April 2009 to 4 April 2011, and read Mr Steedman's Report dated 29 September 2009 and Mr Moran's Report dated 31 January 2011. In his report he records the pursuer's social and employment circumstances. He notes, for example, her part time employment to promote "drinks" and records that she was required to drive 10-2000 miles per week. The reference to such mileage must be incorrect; it would be surprising if the pursuer said any such thing. Even driving 200 miles a night three to four times a week in a part time job, would amount to less than 1000 miles.
[37] Mr McMaster records the pursuer as stating that she was not able to lift brochures at work; that sitting and standing became uncomfortable after 40 minutes and were relieved by stretching and moving around; and that she was not able to stand for prolonged periods in high heels. Mr McMaster's examination revealed no clinical abnormality in relation to the pursuer's neck and shoulders.
[38] He noted that on palpation she complained of pain in an inappropriate manner to very light touch over a widespread area in the lumbar region and right loin. He noted restricted movements of the lumbar spine in all directions but on disguised testing there was no such restriction. He detected no neurological abnormalities in the lower limbs.
[39] In his report Mr McMaster concludes that the pursuer could have sustained a very minor soft tissue strain to her neck as well as minor contusion to the front of her chest. He observes that it is much less likely that she would have sustained any injury to her lower back which he says is a much more resilient structure especially as she was wearing a seatbelt and her lumbar spine would have been splinted against the back of the driver's seat. He would have expected any symptoms to have resolved within six to eight weeks. He stated that there is no reference in the GP records to the pursuer continuing to have pain in her lower back, although she attended her GP on numerous occasions with unrelated complaints; and that it was not until 6 August 2010, when at Roodlands Hospital, that she complained of low back pain since the time of the accident. His overall conclusion was that he could find no evidence that the pursuer sustained any significant injury to her back as a consequence of the accident and he could find no good explanation for her continuing complaints. He stated that there was evidence of fabrication in some of the apparently abnormal clinical findings. He did not anticipate any deterioration in the pursuer's condition or the development of further complications.
[40] In evidence he stated that he was not suggesting that the condition of the pursuer's back did not deteriorate six months after the accident but that deterioration was unrelated to the accident; he said 40% of the normal population will have those problems.
[41] Since her accident, the pursuer has identified various activities which either cause or aggravate back pain. These are wearing high heels, performing heavy domestic duties such as vacuum cleaning or lifting heavy shopping bags, lifting up her niece who is a toddler, gym exercises, sitting down for long periods, and walking long distances. Her mother helps her with shopping on a regular basis. She also, according to her mother, whose evidence I accept, has to position her driving seat in an unusual position. The back of the seat is set at an angle rather than more or less upright. The pursuer currently takes 10 to 30mg of Amitriptyline at night three to four times each week.
Post-Accident Employment
[42] The pursuer returned to work after a week's absence even though she still suffered pain in her lower back, left shoulder and neck. She travelled the seventeen miles to work at South Gyle from Tranent by car each day. Brian Morrison drove her back and forth initially, for about two weeks. She coped with work by arranging her duties so that she did not have to carry out any lifting of heavy brochures. She also wore flat heeled shoes which she would not otherwise have done. She had a back brace device for the chair she sat on at work.
[43] In spite of her intermittent back pain, the pursuer continued with her part time work and with her charitable activities although on a much more restricted basis. She has been involved in only three modelling Shoots since her accident, apart from her work as Miss Edinburgh (as to which see below). She did not earn anything from these Shoots. She did not work so regularly with Global Brands Ltd. She was expected to wear high heels for this promotional work. Doing so aggravated her back. She eventually decided that wearing high heels was not worth the pain and eventually gave up the work with Global Brands Ltd at or about the end of 2009. At most, if not all, of the charity and other fashion events she attended she wore flat shoes.
[44] But for her continuing back pain, the pursuer would probably have continued her part time work with VK through Global Brands, which she enjoyed. She has thus suffered the loss of part-time earnings from Global Brands Ltd. Her earnings varied as already noted but generally averaged between about £28‑£56 net per week. At some point in 2010, the pursuer was asked to carry out similar promotional work for Southern Comfort. She was offered about £60 per night but declined for the same reason.
[45] In April 2010 she won the Miss Edinburgh competition; the competition opened in January 2010. The principal duty of Miss Edinburgh is to attend and/or participate in various charitable events. This was unpaid work. The pursuer's ability to participate in the usual range of such events was limited because of her continuing back pain. This was, in effect, confirmed by Murray Roxburgh, the managing director of Grail PR Ltd, a public relations and events company which organises beauty pageants and other events such as Miss Edinburgh and a similar event, Miss Glasgow. He explained, and I accept his evidence, that the pursuer was keen on promoting a healthy outlook on life but did not have the fitness to participate in some events which Miss Edinburgh might otherwise have done; she was not suited to lengthy photo-shoots because of her back pain.
[46] The pursuer felt she was letting people down by not participating in as many events as, but for her back pain, she would otherwise have done. She gave as an example various fun runs in which she was not able to participate. She did, however, attend or participate in about a dozen promotional or charitable events in the course of her reign. For example, in June 2010 she attended a fashion show organised by the Bethany Trust, a charity for the homeless. Models wore clothes chosen from the Charity Shop. Her mother works for that charity, attended the event, and in evidence commented that her daughter was on that occasion not quite as glamorous as she hoped she would be. The pursuer, for what it may be worth, did not appear to be wearing high heels on that occasion.
[47] On the topic of high heels, there was some evidence from the pursuer in cross‑examination as to what high heels meant (generally four to five inches or higher) and an attempt to show through various photographs produced and under reference to the pursuer's height and the reported height of other models in the photographs that the pursuer must have been wearing high heels (although her footwear was not actually visible). I was not impressed with this line of cross‑examination. The quality of the photographs was questionable. I would be slow to hold that if the pursuer said she was not wearing high heels she was mistaken because some inference might be drawn from such photographs.
[48] The pursuer was examined and cross examined on the contents of a document entitled Research Profile. It contained some photographs of the pursuer, and at least one which was said to be but was not the pursuer together with some information culled from websites. The document was not proved and was not referred to at all in closing submissions. There is nothing to be gained by considering the evidence in relation to it.
[49] In spite of her attractive looks and the promotional work which she carried out, the pursuer was very much against women being employed on the basis of their looks. She strongly opposed the WAG (wives and girlfriends) culture and part of her purpose in wishing to become Miss Edinburgh was to encourage young girls to be independent, to be their own boss, and not to rely on men. In a document downloaded from the Internet and lodged as a production by the defender, it is stated that
"Fiona....is keen to use her new title {Miss Edinburgh} to further her own charity work and promote an alternative message of beauty."
She is quoted as saying
"I want to show children and women my own age that they don't have to aspire to the typical 'WAG' image of what is attractive. You can be any shape or size - it's all about confidence."
[50] The pursuer left Thomas Cook on 3 March 2012 and immediately started work with Innes & Gunn as a sales manager. Her job requires her to travel throughout Scotland. It is not desk based or a nine to five job. She attends many promotional events, sometimes at weekends.
[51] Finally, I note that, apart from one week immediately following her accident, the pursuer has not taken any significant period of sick leave because of her injury to her back.
SUBMISSIONS
[52] Counsel for the pursuer and the solicitor-advocate for the defender addressed me in detail on the evidence. They both produced written submissions. My findings of fact and conclusions on the evidence reflect my consideration of their arguments. They also referred to a variety of cases and materials on solatium, some of which I discuss below, and addressed me on the issue of loss of earnings, loss of employability, past services and outlays.
[53] The essential theme of counsel's submissions was that the pursuer continued to suffer back pain, which was attributable to the accident, and that her account was genuine and consistent, although there was no clear physical explanation for the pursuer's continuing symptoms. She invited me to accept Mr Moran's evidence and to reject what appeared to be Mr McMaster's contention, namely that the pursuer's continuing back pain was unrelated to the accident. She also criticised the manner in which Mr McMaster gave evidence. She proposed solatium of £12,000 with two‑thirds attributable to the past. She addressed me on the pursuer's loss of earnings, submitted that the pursuer' average net weekly wage with Global Brands was £45.15 and proposed net wage loss of £5,471.83 plus loss of employability of £8000 on the basis that the evidence disclosed that the pursuer's ongoing back complaints imposed restrictions and limitations on her which placed her at a disadvantage on the labour market. I was invited to make a broad brush approach in assessing services under section 8 of the Administration of Justice Act 1982 and award £500, together with outlays for medication of £20 and the cost of the personal training sessions (£250).
[54] The solicitor-advocate for the defender attacked the credibility and reliability of the pursuer with reference to a variety of topics, particularly in relation to what she was recorded as saying to the consultant surgeons as noted in their reports compared with what she said in evidence, her evidence of the help she received after the accident, and her evidence about her modelling and high heeled shoes. She pointed to discrepancies in the pursuer's evidence in relation to her complaints of continuing back pain. It was submitted that she was over-egging the pudding or her memory was unreliable. She submitted that I should accept or prefer Mr McMaster's evidence having regard to his great experience and knowledge of spinal injuries. She thus approached the question of solatium primarily on the basis that the pursuer's injuries resolved within about two months and submitted that £1800 would be an appropriate award. If I found that the pursuer's ongoing symptoms were attributable to the accident then solatium of about £4000 would be appropriate under reference to Vanneck v Slugget (Kemp & Kemp 1999). On wage loss she submitted inter alia that the pursuer would not have returned to Global Brands once she started with Innes & Gunn as these two businesses were competitors. In any event, giving up her part time employment with Global Brands was not related to the accident; it was to do with the pursuer becoming Miss Edinburgh. There was thus, she argued, no causal connection between the accident and giving up work for Global Brands. If there was any such loss, it was submitted that only one week should be allowed at £30, which it was said was the pursuer's average weekly wage from Global Brands. She submitted that no loss of employability award should be made but if it is it should be no more than £1,000. She pointed out that the evidence disclosed that the pursuer's mother did not do much in the way of services and only £75 should be awarded. The pursuer only attended four core strengthening sessions so the defender should not have to pay for any more.
DISCUSSION
Evidence
[55] My findings of fact reflect my assessment of the witnesses and the evidence they gave.
Pursuer and her Witnesses
[56] The pursuer gave evidence for about three and a half hours. After about an hour of giving evidence seated in the witness box, she asked to stand and did so for most if not all of the rest of her evidence. During that period she gave detailed evidence about the accident and its consequences. She was subjected to lengthy cross examination for over an hour. There are bound to be differences in the account given to a consultant over a period of twenty minutes and the evidence which emerges over a much lengthier period. It is highly questionable whether even the most experienced consultant can accurately record a comprehensive history in the course of twenty minutes. Thus Mr Moran, in his report, describes the pursuer's job with Thomas Cook as a team leader. That is incorrect. She was a team leader part time with Global Brands and a customer sales manager with Thomas Cook. Mr McMaster recorded that she required to drive between 10‑2000 miles per week with Global Brands which is well‑nigh impossible for a part time job. In this case, I am therefore not prepared to draw any adverse inferences about the pursuer from any discrepancies between what the various consultants did or did not record about the pursuer's history or complaints, and what the pursuer said in evidence. For a lay person to describe accurately and comprehensively the extent, nature and consequences of her injuries, in clear unambiguous and consistent language is not an easy task. In the short period allotted for note taking by each consultant there will inevitably be some misunderstanding and inaccuracy.
[57] The court is concerned to ascertain the nature, extent and consequences of the pursuer's injuries having regard to all the evidence led. In the present case it is abundantly plain on the evidence, considered as a whole, that since the accident, the pursuer has complained of and suffered intermittent lower back pain. She did not suffer such pain before the accident. There is no intervening cause occurring since the accident to which these continuing complaints can be attributed. The pursuer did not make heavy weather of her injuries. On the contrary, she returned to work soon after the accident, perhaps sooner than many others would have done. She is obviously hard-working and ambitious. She is not exaggerating her injuries to enhance the value of her claim. If she is, it is a strange way of going about it. She returned to work, resumed part time employment over and above her day job; and continued her modelling and charity work. All these activities, which she could easily have abandoned until her claim was resolved, do not enhance her financial claims at all. Overall, the pursuer was doing her best to recall past events and explain the extent and nature of injuries as accurately as possible. I reject the criticism that she was a witness who was not credible or reliable. In my view, having seen her give evidence and considered all the other evidence in the case, she was not, as the solicitor-advocate for the defender submitted, over-egging the pudding.
[58] The pursuer's mother is a practising Christian. Mrs Dickie gave evidence in a very modest and straightforward manner. Her evidence was low‑key. I found it to be reliable and credible. She confessed that she did not give her daughter a lot of sympathy stating that she would pray for her but she, the pursuer, just had to get on with her life, which is in large measure what the pursuer has done. She thought her daughter's complaints were genuine and did notice that her back pain had not improved significantly. She still went shopping with her regularly but said that Brian Morrison provided her with most help. This plainly did not advance the services claim.
[59] Ms McAuley, a work colleague of the pursuer at Thomas Cook corroborated the difficulties to which the pursuer spoke. Ms McAuley also gave her evidence, which I accept, in a straightforward manner. She confirmed that the pursuer's abilities to perform certain tasks were restricted, that she wore flat shoes and was uncomfortable sitting for long periods. She said, and I accept her evidence, that the pursuer was still suffering from discomfort in March 2012.
[60] Mr Roxburgh's evidence was relatively brief but he did confirm that the pursuer did not attend as many functions and events in her capacity as Miss Edinburgh as she would have wished and as other holders of that title had done. He confirmed that the reason given by the pursuer was continuing back pain.
Medical Evidence
[61] It was plain from the pursuer's evidence that she did not get on with Mr McMaster at the examination on 19 July 2011. She felt uncomfortable in his presence and was upset after the examination concluded. Mr McMaster claimed that he treated all his patients with the utmost respect. A nurse, he said, was always present during examinations. It is not difficult to see why Mr McMaster and the pursuer did not get on with each other. The pursuer is not academic, has no formal or professional qualifications and is a sales person as she described herself. She is also a positive, confident and forceful character; perhaps that is why she is suited to the sales world. Mr McMaster is steeped in professional life and academic studies. He is a large man with an imposing character with impeccable qualifications and vast professional experience in spinal injuries; he has had a full and distinguished career, although he acknowledged in cross examination that he was rarely instructed by pursuers' advisers and could not remember when he last prepared a report on instructions given on behalf of a pursuer. In evidence in this case, however, I regret to say that he tended to be overbearing, domineering and dogmatic. He was somewhat dismissive of some of counsel's reasonable questions. At one stage, he asserted, in response to a question about the extent and effect of the impact of the collision, that he was an expert in motor vehicle repair costs. He asserted that he knew as much about car repair costs as anyone else and the sum of £800 or so expended on repairs to the pursuer's vehicle following the accident indicated that there was not much of a collision making it unlikely that she suffered any significant back injury. He did go on to explain the technical reason for his view on the significance of the impact on the pursuer's back, but the manner in which he gave this chapter of evidence could hardly be described as the balanced evidence of an independent expert. No doubt on most other occasions, he does provide such balanced, independent and weighty evidence commensurate with his very considerable expertise and skill. I should add on this point that both Mr Steedman and Mr Moran had no difficulty in concluding on the basis of their findings and the account of the accident given to them (which in substance is no different from the account the pursuer gave in evidence) that the pursuer suffered a soft tissue injury to her lower back. That conclusion seems to me to be entirely reasonable and consistent with common sense, and I accept it.
[62] Further, there is an underlying inference in Mr McMaster's report that the medical records show that the pursuer has been inconsistent in her complaints and indeed did not make a complaint about her lower back until August 2010. The facts as I have found them to be show that this is not correct. I accept the evidence of the pursuer and her witnesses that she complained of low back pain from the outset. She complained of such pain to Mr Steedman in September 2009 and to her GP in January 2010. Mr McMaster did not mention this in his report. Instead, he said in his report that
"it was not until 6 August 2010 (16 months after the accident) when she attended the Orthopaedic Department of Roodlands Hospital that she complained of low back pain since the time of the accident."
Had that statement been correct it might have given some credence to the view that the pursuer was fabricating the extent of her injuries.
[63] I find that although there may be no organic basis for the pursuer's ongoing low back pain, it nevertheless exists and subsists and is attributable to the accident. This is by no means a unique state of affairs (see for example Smith v Chief Constable of Central Scotland 1991 SLT 634 at 634H and Callaghan v Southern General Hospital 2000 SLT 1059 at 1060 paragraph 43, cited by counsel for the pursuer). I find that the pursuer has not been and is not misrepresenting the presence of pain. She was not and is not fabricating or exaggerating her symptoms. To find otherwise would also require me to reject, or at least view with some suspicion the evidence of the pursuer's mother, the pursuer's partner Brian Morrison and her former work colleague, Leigh MacAuley. Alternatively, I would have to conclude that they, Mr Steedman and Mr Moran had been somehow hoodwinked by the pursuer.
[64] I am not prepared to draw such conclusions from the evidence of the pursuer and her witnesses having regard to the general consistency of their evidence, the manner in which they gave it and my overall impression of each of them. All this is generally consistent with the medical records and the evidence of Mr Steedman and Mr Moran. I do not consider they have been deceived by the pursuer. I acknowledge that these consultants are not as experienced as Mr McMaster; however, their reports and evidence were balanced and logical. In particular, as already narrated, Mr Moran noted that he could not account for the exquisite tenderness felt to light palpation of the paravertebral muscles. He recorded that other signs of inappropriate symptomatology were negative and concluded that the pursuer had genuine ongoing symptoms in relation to her low back. That is consistent with the other evidence in the case.
[65] The pursuer did not seem to me to exaggerate her complaints. She was anxious to return to work after the accident. She did so. She resumed her part time employment with Global Brands but eventually decided to give that up. She entered a beauty pageant and was crowned Miss Edinburgh 2010. She undertook a limited range of charitable events in that capacity. She wanted to do more but was unable to do so because of back pain.
[66] I should also add that contrary to the impression given by Mr McMaster's report, the medical records produced indicate a consistent and continuing complaint of intermittent low back pain being suffered by the pursuer. Apart from Mr McMaster's suggestion that the pursuer's low back pain is what 40% of the normal population suffer there is no other explanation for the cause of the pursuer's ongoing symptoms.
[67] I regret that I must regard Mr McMaster's view on causation as speculative and I am unable to accept it. The percentage he gave for what it may be worth suggests that 60% of the population do not suffer from this type of unexplained back pain. I know nothing of age groups, occupations or anything else which might have influenced this percentage. In which category do I place the pursuer? Given the fact of the accident, the consistent complaints of lower back pain of varying degrees of severity since the accident, the views of Mr Steedman and Mr Moran, and the recorded views of various health professionals in the medical records, there is no rational basis for concluding that the pursuer's symptoms persist because they have arisen by coincidence from some unspecified cause unrelated to the accident or for no cause at all.
[68] Counsel for the pursuer referred to Lyons v William Morrison Supermarkets Plc 2010 Rep LR 90 and Pratt v The Scottish Ministers 2011 CSOH 86. In Lyons, solatium of £5000 was awarded to a 39 year old man who suffered mild but troublesome chronic mechanical back pain which prevented him from being able to continue his hobby of body building on a regular basis. He was injured in two accidents at work about a month apart. Although the pursuer was eventually able to return to his normal duties as a night stacker, his capacity to walk long distances, sit for lengthy periods and play with his son was restricted; his sLeighp was also disturbed. There was evidence of pre‑existing degenerative changes. A complication was that the pursuer suffered a further injury shortly before the proof which superseded the consequence of the defender's negligence. The pursuer's medical expert, whose evidence was accepted, said that the injuries exacerbated pre-existing low back pain and accelerated the inevitable progression of such pain by about five to ten years. The defender's expert, Mr McMaster, gave evidence to the effect that the pursuer was overstating his injuries, and that he would have suffered similar continuing problems even if the accidents had not occurred. The court regarded that latter view by Mr McMaster as at best speculative. While this case may be of some assistance in assessing solatium, I am not prepared to be influenced in my assessment of Mr McMaster's evidence in this case by another judge's assessment of his evidence in another case.
[69] In Pratt, the pursuer, a former prison officer, claimed damages for the defenders' failure to provide early therapeutic intervention in order to alleviate his fears and to provide him with emotional support and prevent the development of psychiatric injury. The pursuer had become depressed after ingesting a small quantity of a prisoner's blood while breaking up a fracas. He feared the prisoner was a junkie and had infected him with the HIV virus or AIDS. The Lord Ordinary (Brodie) heard psychiatric evidence from experts and ultimately assoilzied the defenders. At paragraph 51, he noted the well-known dictum from the Ikarian Reefer 1992 2 Lloyd's Report 68 at 81 that an expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise; he should never assume the role of advocate. Lord Brodie returned to this topic at paragraph 60 and 61 and quotes passages from McTear v Imperial Tobacco 2005 2SC 1 paragraphs 5.2-5.11.
[70] What emerges from Pratt and the authorities therein cited, is inter alia first, expert opinion evidence, if intelligible, convincing and tested, becomes a factor for consideration with the rest of the evidence in the case; second, the court is entitled but not bound to accept such opinion evidence; third, it is for the court to reach its own conclusions and decide the issue in dispute; fourth, the bare ipsi dixit of an expert, however eminent and experienced will normally carry little weight; and fifth, what carries weight is the reasoning of the expert or the court and not the conclusion. I have endeavoured to apply these considerations in my assessment of the evidence.
[71] Overall, the pursuer has displayed a commendable attitude to work, life in general and to her continuing back pain in particular. This is not the conduct of a malingerer or someone who is seeking to secure the most compensation possible for her injuries. Persistent or even intermittent back pain is, or at least can be, a debilitating ailment, which comes and goes and can be an ailment the existence of which can be difficult to establish or refute. For that reason, perhaps, it is often associated with malingers and the work-shy. It is my clear impression from observing the pursuer in evidence and listening to her evidence and the manner in which she gave it that she does not fall into either of those categories. The pursuer explained the limitations which have arisen since her accident. She has adopted a sensible attitude to her continuing back problems. She knows that she can wear high heels but will suffer the next day for doing so. It seems to me that rather than being criticised she should be commended for her efforts.
[72] Nevertheless, displaying reasonable fortitude in the face of adversity does not entitle the pursuer to more than fair and reasonable compensation for her injuries. That compensation falls to be assessed on the basis that as a result of the accident she continues to suffer low back pain which is moderate in severity and will continue at least in the medium term.
Solatium
[73] I was referred to the Judicial Studies Board Guidelines in relation to Back Injuries and, in particular, to the headings 6B(b)(ii) moderate and (c) minor. The former category embraced
"many frequently encountered injuries to the back such as disturbance of ligaments and muscles giving rise to backache, soft tissue injuries resulting in exacerbation of an existing back condition or prolapsed discs necessitating laminectomy or resulting in repeated relapses. The precise figure depends upon the severity of the original injury and/or whether there is some permanent or chronic disability."
The range given in that category is £8,250 to £18,250. The latter category embraces strains, sprains, disc prolapse and soft tissue injuries from which a full recovery to "nuisance" level has been made without surgery within about five years. The range given is £5150 to £8250. Where such recovery is achieved within about two years the range given is up to £5,150.
[74] In Leighbody v Liddle 2000 Rep LR 59, Lord Macfadyen awarded solatium of £15,000 (updated- £20,550) to a 57 year old man who sustained soft tissue injuries to his neck and lower back, which caused severe pain at the time of the accident, which improved within six months but was still causing some discomfort at the time of the proof three years later sufficient to disturb his rest and to prevent him from pursuing more energetic physical activities, although the movement of his neck and lumbar spine were held to be neither as restricted nor as painful as he claimed.
[75] In Seaman v Taylor 2005, reported in Kemp & Kemp at F5028 [F5-031], a 36 year old woman (32 at the date of the accident) was awarded general damages of £7500 (updated-£9,075) for a soft tissue injury to her lumbar spine sustained in a road traffic accident. The residual symptoms were described as more than nuisance level and unlikely to improve significantly; they were assessed as being at the lower end of category 6B(b)(ii) category of the JSB Guidelines mentioned above as the plaintiff was unrestricted in what she could do save for the duration of such activities. The present pursuer, on the other hand, does suffer from some restrictions and limitations.
[76] In Spink v Lawrie 2006 GWD 19-403 (Shff Ct), the pursuer was awarded solatium of £5,250 (updated-£6,195). She suffered pain around her neck shoulder and back following a road traffic accident. She was unfit for work for a week, but continued to suffer moderate pain lasting three or four days at a time. This would continue indefinitely. She avoided heavy lifting and gardening. It was accepted that her injuries fell within the JSB Guidelines moderate category.
[77] In Vanneck v Sluggett, Kemp & Kemp (1999) a young man aged 19 at the time of his road traffic accident suffered soft tissue injuries to his neck and back, causing pain and discomfort. Five months later he was diagnosed as having a hyperflexion sprain of the soft tissues in the neck and a mild low back strain. His discomfort had resolved after twelve months. However, he still felt short duration of spasms of back pain about once a fortnight. There was no long term disability and even if full recovery was not achieved any remaining symptoms would be minor and intermittent. General damages of £2800 (updated-£4102) were awarded. I regard these injuries as significantly less serious than those suffered by the pursuer.
[78] I was also referred to a number of cases which were cited on the basis that the pursuer's injuries were resolved within two months. As that is not in accordance with the facts as I have found them to be it is unnecessary to consider these cases. Likewise, cases where the pursuer suffers from a significant element of anxiety or depression are not relevant.
[79] I do not consider that the pursuer's continuing symptoms fall into the nuisance level. I consider them to be more significant. Mr Moran described them as moderate in severity. I consider that her injuries fall into the lower half of the moderate category namely £8250 to 18,250. In my view, solatium for the pursuer is reasonably assessed at £10,000, of which I attribute 65% to the past and apply interest on past solatium from the date of the accident until the date of decree at four per cent per annum. Thereafter, interest will run at eight per cent per annum from the date of decree until payment.
Past Wage Loss
[80] It is agreed that the pursuer's net wage loss from Thomas Cook is £211.54 and that interest accrued thereon to 22 May 2012 is £52.40.
[81] I assess the pursuer's loss of earnings in relation to her part-time employment with Global Brands at £4,800. Counsel for the pursuer suggested that her average net weekly wage from Global Brands was £45.15 taking a sample period of ten weeks between October 2009 and December 2009. The solicitor‑advocate for the defender suggested £25 to £30 per week. In reaching the sum of £4800 I have taken the period between 1 January 2010 and the end of February 2012 (112 weeks). I have made some allowance for the fact that the pursuer was Miss Edinburgh between April 2010 and 2011 and probably would have had less time to devote to her part time employment with Global Brands. It is not possible to be arithmetically precise. Once she joined Innes & Gunn in early March 2012, her part-time work with Global Brands would probably have ceased as these two companies are competitors. £4800 is 112 weeks at an average of £40 per week. Interest on £4,800 at four per cent per annum falls to be added from 1 January 2010 until 29 February 2012, and thereafter at eight per cent per annum until payment.
Loss of Employability
[82] It seems to me that in the medium term at least, the pursuer will be at some disadvantage in the labour market if she were to lose her present job. Her continuing intermittent back pain restricts her ability to stand for long periods or to wear high heeled shoes, or at least if she does do so she suffers for it afterwards. These are matters of some importance to a young woman working in sales promotion, and would place her, when competing for such a job, whether full or part‑time, at some disadvantage over someone who does not have those problems. I consider that there is a real or substantial risk that the pursuer will, at some stage in the medium term, be placed at a disadvantage on the labour market. The current and foreseeable economic climate are uncertain. The pursuer is at a relatively early stage in her career. For one reason or another, there is a reasonable chance that she will be thrown on to the labour market.
[83] She is therefore entitled to some compensation for the creation of that risk through the admitted fault of the defender. I was not addressed on how such loss of employability should be calculated. Counsel for the pursuer's figure of £8,000 was based on £45 per week or £2,500 per year from the pursuer's Global Brand earnings for about three years. However, the rationale for that analysis was unclear. A sum is to be paid now for a loss which may eventuate in the future. It is the net present value of such a loss which must be assessed. The difficulty is there is little material upon which such an assessment can be based. I do not consider that I can properly award more than one year's net earnings (which is sometimes awarded in the absence of any other method of assessment), namely £2,500 which is what I shall award. Interest will run on that sum at eight per cent per annum from the date of decree.
Services
[84] The pursuer claims under section 8 of the Administration of Justice Act 1982 for the necessary services of her mother. The evidence discloses that the pursuer's mother and Brian Morrison helped her in a variety of ways which fall within section 8. However, that evidence discloses that most assistance was provided by Mr Morrison and it is accepted by the pursuer that no claim can be made for his necessary services.
[85] It is impossible to calculate the number of hours of assistance provided by a family relative in this type of situation. Assistance would be greater initially, and then become intermittent. It is the sort of help which it would be difficult to hire unless the helper were in constant attendance. Counsel for the pursuer suggested £500, which might be broken down as 50 hours at £10 per hour or 100 hours at £5 per hour. 100 hours is less than an average of an hour a week over the period of some three years since the accident. Even though the pursuer's mother led a busy life, did not see her every day, and Mr Morrison provided much of the assistance, the sum claimed seems to me to be reasonable. Assisting the pursuer with one shopping trip a fortnight would justify the claim for necessary services rendered by her mother. Interest will run on £500 at four per cent per annum from the date of the accident until the date of decree and thereafter at the rate of eight per cent per annum until payment.
Outlays
[86] The pursuer spent about £20 on medication in 2009 as a result of her injuries suffered in the accident, which I regard as a modest and reasonable claim. She is therefore entitled to that sum. There was no dispute about this. I consider it reasonable to award interest on this sum from say about six weeks after the accident, say 1 June 2009 at eight per cent per annum until payment.
[87] She also spent £250 on core strengthening exercises with a personal trainer as discussed above. It was suggested by the solicitor-advocate for the defender that, as the pursuer only attended a few of the block of sessions, she should only be entitled to recover the cost of the sessions she actually attended. However, I consider that it was a reasonable act of mitigation to book and pay for these sessions particularly as more conventional physiotherapy had not been wholly successful (having eliminated her neck pain but not her back pain). Dr Fisken had suggested core strengthening exercises and they might well have alleviated her low back pain. The pursuer was not to know that she would not find the sessions beneficial. I shall therefore allow the full amount. Interest will run on that sum at eight per cent per annum from 15 June 2011 (the personal trainer's invoice was paid on 14 June 2011) until payment.
Summary
[88] The pursuer is entitled to damages as follows:-
1 Solatium
Past £6,500
With interest on past solatium at 4 % per cent
per annum from 10 April 2007 until decree
Future £3500
[interest on the solatium of £10,000 will run at 8%
per annum from the date of decree until payment.]
2 Past Wage Loss
(a) Thomas Cook £211.54
With interest at 8% from 18 April 2009 until
payment
(b) Global Brands Ltd £4,800
With interest at 4% from 1 January 2010 to 29
February 2012; and thereafter at 8% per annum
until payment
3 Loss of Employability £2,500
With interest at 8% per annum from the date of
decree until payment
4 Past Necessary Services £500
With interest at 4% per annum from 10 April 2009
until the date of decree and thereafter at 8% per annum
from the date of decree until payment
5 Outlays
(a) Medication £20
With interest at 8% per annum from 1 June 2009
until payment
(b) Personal Trainer £250
With interest at 8% from 15 June 2011 until
payment
[Total Damages £18,281.54 plus interest as above]
I shall pronounce decree accordingly. All questions of expenses are meantime reserved.