OUTER HOUSE, COURT OF SESSION [2008] CSOH 111
A4540/01	OPINION OF LORD UIST in the cause DANIEL ROONEY Pursuer against THE ADVOCATE GENERAL FOR SCOTLAND Defender ­­­­­­­­­­­­­­­­­________________

Pursuer: A Smith QC, E G Mackenzie; Digby Brown SSC

Defender: Clancy QC, Webster; Morton Fraser

5 August 2008

Introduction

[1] The pursuer, who was born on 30 July 1960, joined the Royal Air Force Fire Service on 8 November 1977. He spent approximately 14 years in that service and then switched to a job as a civilian fireman in the Ministry of Defence Fire Service. He did so in order that he would be guaranteed employment until the age of 60. In November 1998 he was employed as a leading firefighter at RAF Leuchars. He avers that he suffered injury in an accident in the course of his employment there on or about 26 November 1998.

[2] The averments made by the pursuer about the circumstances of the accident, as set out in condescendence 2, are as follows:

"On or about 26 November 1998 the pursuer was employed as a leading fire fighter by the Ministry of Defence ("the defenders") at RAF Leuchars. His duties included transferring equipment from one fire tender ("the first tender") to another fire tender ("the second tender"). Both tenders were Mark 9 tenders. No instructions were given by the defenders to their employees as to the system to be adopted for transferring equipment between tenders. The transfer of equipment from the first to the second tender took place at the same time as the water tanks of the second tender were being filled with water. There was no gauge on the second tender to indicate when the water tanks were full. The only way of knowing when the tanks were full was when water overflowed from them. As a result of said water filling operation the ground was covered with water. The pursuer required to transfer breathing apparatus from the first to the second tender. Said apparatus was situated in the rear cab of the first tender. The apparatus weighed approximately 13 kilograms. It was bulky. The pursuer stood on the foot plate of the first tender. Said foot plate was approximately one metre from the ground. It was wet. The soles of the pursuer's boots were wet. The pursuer reached into the cab and lifted the apparatus with both hands. As he was about to descend from the tender his foot slipped causing him to fall backwards and land heavily on his back. As a result of the accident he suffered the loss, injury and damage hereinafter condescended upon. The accident was reported to the defenders."

[3] He goes on to make averments about a new system introduced after the accident for the transfer of equipment between tenders by at least two fire fighters, separately from the filling of water tanks. In answer the defenders admit that the pursuer's duties included the transfer of equipment from one Mark 9 fire tender to another, that the pursuer was required to transfer breathing apparatus weighing approximately 13 kilograms from the rear of the cab of the first tender to the second tender, that he stood on the footplate of the first tender and that he fell. They aver that the apparatus was accessible from the foot plate, that there were handrails on either side of the door leading into the cab and that the pursuer could have kept hold of either handrail. The pursuer in riposte avers that it was not possible for him to reach the handrails, which were on the outside of the tender, while standing on the steps of the tender and that in any event the correct method of lifting the breathing apparatus was to hold both its handles, while doing which it was not possible for him to make use of any handholds.

[4] The accident is averred in condescendences 3, 4, 5 and 6 to have been caused by the negligence of the Ministry of Defence at common law and by their breaches of Regulations 5(1), 12(3) and 13(1) and (3) of the Workplace (Health, Safety and Welfare) Regulations 1992, Regulation 5 of the Provision and Use of Work Equipment Regulations 1992 and Regulation 4(1) of the Manual Handling Operations Regulations 1992. In the closing submission for the pursuer the cases under Regulations 5(1) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 were abandoned.

The evidence about the accident

[5] The pursuer explained by way of background that fire cover was required on the ground for aircraft taking off or landing. RAF Leuchars had five fire tenders, two of which were probably of the same make and were double the height and breadth of a normal tender. (He later amended this description in cross-examination.) The pursuer was like a depute crew commander: he had his own crew of nine men and also took over a colleague's crew. Each tender carried its own water in its tank, which had to be as full as possible, as aircraft could crash anywhere.

[6] On 26 November 1998 he was working as a leading firefighter. He had Sub-Officer Mark Peters, who did a lot of the administrative work, as crew commander above him. He himself was working with a Mark 9 tender which was used day in and day out. He had to transfer breathing apparatus from one Mark 9 tender to another, which had been taken out of storage and had no kit. The whole crew, consisting of, he thought, 11 men, were working on the transfer. The breathing apparatus was stored immediately behind the front passenger seat as you went up the stairs on the near or left side of the tender. The first step was two or three feet from the ground and the second step another foot up. The breathing equipment, which was like a sub-aqua type of equipment with a mask attached by a hose, was on a ledge. It had two handles and a mask on top. It consisted of a base plate on the bottom, then the cylinder and the mask on top of the cylinder. It was a very delicate piece of life-saving equipment. It had to be carried level. He had been taught how to carry and wear it properly. The second tender was having water pumped into it. The water went in at full pressure and it was known that the tank was full only when it overflowed. The ground surface was made of concrete and was wet. The spindle was off the hydrant, which could not be turned off.

[7] There were handrails on the outside of the tender. He was going backwards at the time. If he were to turn round and go forward he would just fall down. His feet gave way from under him, he slipped and fell backwards onto the concrete because of the water. If he had had no breathing apparatus he could have held onto the handrails and walked down. He had carried out this procedure on hundreds of previous occasions. He fell from inside the cab but would be guessing what height he fell from. The breathing apparatus fell to his left side. Water was still flowing out of the tender onto the concrete. He heard someone shout "fireman down", something he had never heard before. He thought he was on the ground for 45 minutes. He tried to get up but couldn't because of agony and pain in his lower back. "They" dialled the medical centre direct instead of putting it through as an emergency. The ambulance came and took him on a back stretcher to Ninewells Hospital in Dundee, where he stayed overnight. He was x-rayed and no fractures were found. The next morning when the doctor came round he wanted home. He was taken home in the back of a Fire Service van and the journey was agony.

[8] In cross-examination the pursuer confirmed that equipment was being transferred from one Mark 9 tender to another. One of them had broken down. He had a good recollection. They were facing the runway but staggered. They were not parallel to each other. One was at an angle at the fire hydrant being filled up with water on the rear offside at the bottom of the vehicle, from which there was a pipe to the tank at the centre of the vehicle. The other tender was about two or three bays along. (He drew a diagram indicating vehicles A and B, 7/29 of process.) He was on the nearside of the tender which was not being filled up (B) and water from the other tender (A) was flowing across the surface. The internal step into tender B was about half the height of a chair in court and about two and a half feet wide. It was possible to stand on it with both feet. The Photographs 7/30 and 7/31 of process both showed a Mark 9 tender. In 7/31 the dimensions were given as height, 3.54 metres (11.48 feet) and length, 8.73 metres (28.6 feet). When he had said earlier that the tender was twice the height of a civilian fire tender he had been trying to do his best in giving an impression of the difference: a Mark 9 tender could be twice the height of some other fire service vehicles. He knew what he meant. He did not know he was coming to court to give exact measurements. He was saying that a civilian tender was a lot smaller than a mark 9 tender. It was unfair to say that his estimate of the size of a Mark 9 tender was part of a tendency on his part to exaggerate. He could not say exactly what height he fell from. In para 4.01 of the report of 24 September 2002 from Dr Colin Rodger, Consultant Psychiatrist (6/10 of process) it was stated that he "fell approximately 10 feet". He accepted he must have said that, but, given the height of the vehicle, there was no question that he fell 10 feet. He could not say if he had more recently told Dr Stone that he fell 10 to 12 feet. It was a traumatic part of his life and he got upset and agitated when he spoke about it. The accident had changed his whole life.

[9] The photograph 7/30 of process showed the nearside of the tender from which he fell. The door was a concertina door which had two vertical window panels and handrails on each side. The first step was shown below the door. He was not sure if it had a tread. He would have been up and down there thousands of times, including when it was wet. The other steps inside the vehicle were normal, conventional steps, and he would say they were treaded. He would class the footplate (that is, the first step) as part of the outside of the tender. It had never been his case that he fell from there: nothing could be further from the truth. On being referred to the averment in condescendence 2 at p 5D of the Closed Record (in which it is averred that he stood on the foot plate of the first tender, which was approximately one metre from the ground) he said that that was incorrect. He knew for a fact that if he had stood on the footplate he could not reach the breathing equipment. He had never said that he stood on the footplate, and he had never noticed that averment in the summons. No man in this world could stand on the footplate and reach the breathing equipment. "Footplate" was not a word he would use. He had the breathing equipment, he slipped down and fell. He had told Mr Cassel (his solicitor) six or seven years previously what had actually happened to him. It was correct (as averred) that the soles of his boots were wet, it was not correct that he reached into the cab from the footplate.

[10] In answer to questions from me designed to clarify his account the pursuer stated that he climbed onto the very top step behind the concertina doors. On his right side there was a holder for the face mask for the breathing equipment. He took that out and placed it on top of the cylinder which was stored in the cowling. The cylinder was in front of him. He undid the restraining strap for the breathing equipment set, lifted it by the handles on both sides, turned to his right and started coming down the steps. One of his feet was at a lower level when he slipped. He fell straight backwards.

[11] The pursuer went on in cross-examination to repeat that he had never told his lawyers that he was on the footplate. He reached forward into the front of the cab once he was in the cab to pick up the breathing equipment. It was a possibility that he might have said to his lawyers that he reached into the cab, omitting the word "front". He never thought there was anything wrong with the averments when he read them. At the time he was wearing rubber neoprene boots with treaded soles which did not absorb water and tried not to absorb fuel. He did not accept that any accident was a result of his own carelessness: the last thing he would do was to ruin his own life. He was holding the breathing equipment with both hands in front of him when he fell.

[12] He had not given Dr McGregor of the Benefits Agency a different account. He was referred to 7/8 of process, p 73, which was a claim for industrial injuries disablement benefit, part 2 of which consisted of the "customer's statement" recorded in manuscript. Before the manuscript statement the following words appeared in type:

"Record the statement as nearly as possible in the customer's own words. Read it out to the customer for agreement and then ask him or her to sign it below."

The first part of the statement read as follows:

"On the above date whilst working as a firefighter at RAF Leuchars I slipped about 8-10' down steps whilst wearing the breathing apparatus on my back. I tried to get up but couldn't move due to pain in my back. I was taken to Ninewells on a backboard and kept in overnight. I was x-rayed and told I was OK. I was bruised and swollen where the cylinder had been forced against my back at the bottom."

At the foot of the page there appeared in type the words "I agree that what is written above is a correct record of my statement", below which appeared the signature "Danny Rooney" alongside the date 22.5.00.

[13] The pursuer stated that the above account was not what happened. Dr McGregor had asked what had happened and he had given Dr McGregor his account. Dr McGregor wrote parts of it down. He did not read what had been written down, it was never read back to him and he was not asked whether he agreed with it. He was upset. It would be necessary to ask Dr McGregor where he got the account from. He (the pursuer) would not say "on the above date". He accepted that the only account which Dr McGregor would get would be one from him. He was not working as a firefighter: he was a leading firefighter. It was impossible that he would have said to Dr McGregor that he was wearing breathing apparatus. The breathing apparatus fell to his left hand side. The statement was recorded on 22 May 2000, when his whole world was falling about him. He had breathing apparatus on him but he was not wearing it.

[14] The pursuer was then referred to a signed statement in his handwriting dated 22 August 2000 in the Ministry of Defence medical records (7/15 of process, p18), which reads as follows:

"On the above date I was part of the fire crew covering RAF LEUCHARS when due to the unservicabilty (sic) of one of the fire vehicles we were ordered to transfer fire equipment between vehicles before the next aircraft movement. While carrying out this task I fell backwards from a Mk 9 fire vehicle while wearing a breathing apparatus onto the concrete hardstanding.

I tried to get up off the ground with the help of my colleagues but couldn't do so and it was very hard when I tried to move. So I had to stay on the ground which was very wet due to the overflowing of the serviceable (sic) vehicle, an ambulance was called and I was placed on a backboard and transferred (sic) to hospital in Dundee and kept in overnight."

He said that that was incorrect and that he had made a mistake there. That was not what he told Dr McGregor and that was not what had happened. He was there and he knew what happened to him. He was not going to put on breathing equipment just to transfer it to another vehicle. He did not dispute that he was walking backwards and that he slipped and fell. The note from the medical officer at RAF Leuchars to Ninewells Hospital (7/2 of process, p5) stated:

"Fell approx 4 ft from fire truck (walking backwards) onto concrete."

[15] He was also referred to a letter dated 8 December 1999 from his solicitors, Digby Brown, to the defender's insurers (7/13 of process) in which the following was stated:

"As you are no doubt aware, our client is employed by your insured as a civilian fire fighter based at their RAF Leuchars, Fife base. He sustained an accident in the course of his employment on 26.11.98 at approximately 4 pm.

In accordance with issued instructions, our client was to assist in the transfer of firefighting equipment from one fire engine to another, whilst at the same time the fire engine in question was being filled up with water from an outside hydrant. Our client was carrying out such duties at the time as part of an 11 man crew, and whilst in the course of transferring the breathing apparatus from one engine to another by means of loading this on his back, he slipped heavily on a sheet of ice which had formed on the tarmac as a result of water overflowing from the fire engine which was being filled with water."

He stated that he did not know who wrote the letter, but that was not what happened. He only knew that he was trying to do his job when he slipped and fell: that's what happened.

[16] There was no eye witness to the pursuer's accident but evidence about the surrounding circumstances and of the manoeuvre to be undertaken when removing breathing apparatus from a Mark 9 tender was given by other witnesses.

[17] Richard Gay was another firefighter on duty. He was at the offside of the tender, heard someone call "Fireman down" and he came round to the nearside and found the pursuer lying on his back on the ground close to the tender with the breathing apparatus on top of him. The pursuer was perpendicular to the vehicle, with his feet closest to it. He could not remember if the pursuer was curled up or straight. The breathing apparatus was to the pursuer's side. The concrete ground surface was wet. He was not aware of any procedure for removing breathing apparatus from a tender. You could either back out holding the breathing apparatus (which was not practicable, as there was no room to do it) or you could remove the breathing apparatus, place it down, get out of the tender and then reach up to get the breathing apparatus.

[18] Robert Low was a leading firefighter who was in the sub-officer's office when someone shouted that Danny had had an accident. He went out, saw two men attending to the pursuer and came back in and phoned an ambulance. As far as he could recollect the pursuer was lying on his back on the ground. He explained that to remove breathing apparatus from the tender you had to put the face mask round your neck with the restraining strap and another strap round your shoulder to carry the breathing apparatus on your back. It was a difficult task.

[19] Timothy Swift was an acting sub-officer who was in the crew room when someone shouted in that Danny had fallen off one of the vehicles. He saw the pursuer in some distress and two men with him. The pursuer was lying beside the tender near the folding doors on his back and elbows in a puddle. He seemed to have some recollection that it was raining that day but there was often quite a lot of water in the bays when a truck was being replenished. The breathing apparatus was to the left of the pursuer within arm's length, more or less at the pursuer's waist level. As the breathing apparatus might have been damaged he took it to the servicing room. If he were removing breathing apparatus from the nearside of a Mark 9 tender he would close the door, pick up the apparatus from its cradle, set it at his feet, open the door, get out, reach in and remove it. The reason why he would close the door was because access to the breathing apparatus was restricted by one half when the door was open.

[20] Mark Peters was the station officer and on duty as the overall station manager on the day of the accident. His memory was vague, but he would have been in his office when somebody came and informed him of the accident. He made his way to the scene of the accident and saw the pursuer in distress on the ground at right angles to the nearside of a Mark 9 tender being attended to by two firefighters. He believed the ground conditions were damp, if not wet. His recollection was that there was a compressed air cylinder nearby. The accident happened at 16.10 and at 16.45, after speaking to others but without taking written statements, he compiled the accident report 6/2 of process, in which he recorded a brief description of the event as follows:

"Whilst removing CABA cylinder from rear door of Mk 9 fire vehicle, slipped backwards off step due to footwear being wet falling onto back causing injury."

The information he got was from "the guys who attended him on the ground". As far as he was aware nobody at all witnessed the accident. He surmised that the pursuer was a possible source of information.

[21] In addition, evidence was also given by Dr Hugh McGregor about the contents of the industrial injuries disablement benefit claim form (7/8 of process, p 73). He explained that he acted as an adviser to the Benefits Agency and examined claimants. He had no recollection whatsoever of having met the pursuer. He identified his handwriting on the form, but as to the detail he remembered nothing. He remembered only that it was an unusual claim. He could only presume that he recorded what the pursuer told him, which is what he did with all claimants. It was his practice to read the statement back in its entirety and then ask the claimant to sign it. He would never fail to read the statement back because the claimant was distressed: he would be even more careful then.

Discussion and conclusion about the facts of the accident

[22] As there were no eye witnesses to the accident it is crucial that I should be able to hold the pursuer to be a credible and reliable witness in his account of the accident. The pursuer's counsel himself accepted that the pursuer was not a witness one could instantly rely upon and that I plainly had to be cautious before I could accept his evidence. There are clear obstacles which stand in the way of my being able to accept the pursuer as a credible and reliable witness in his account of the accident.

[23] First, I found the pursuer to be a generally unsatisfactory witness. He was self-pitying and discursive and tended to make excuses for himself. When confronted with a difficulty in the course of cross-examination he was inclined to become evasive, as well as upset and angry. I felt that he was not a witness upon whose word I could rely in the absence of supporting credible and reliable evidence.

[24] Secondly, there are the previous inconsistent statements. On 8 September 1999 his solicitors wrote to the defender's insurers stating that "he slipped heavily on a sheet of ice which had formed on the tarmac as a result of water overflowing from the fire engine which was being filled with water". No explanation was provided in evidence of how this statement came to be made on behalf of the pursuer. Such an account of the accident is, of course, wholly different from one of falling off the side of the tender, as the accident is alleged to have happened in a different place. A different account of the accident was given by the pursuer on the benefits claim form. I accept the evidence of Dr McGregor that in the case of the pursuer he followed his standard procedure of writing down what the claimant told him, reading it back in its entirety and then asking the claimant to sign it. The fact that the pursuer gave such a different account before the action was raised when he had no reason to do anything other than tell the truth undermines the credibility and reliability of his evidence under oath in court. So also does his evidence of his dealings with Dr McGregor to the effect that the form was not read back and that he was not asked to sign it. It was also stated in the solicitors' letter of 8 September 1999 that the pursuer was in the course of transferring the breathing apparatus from one engine to another by means of loading it on his back. In his written account dated 22 August 2000 (7/15 of process, p 18) filed in the medical records the pursuer stated that he fell backwards from a Mark 9 fire vehicle while wearing a breathing apparatus. He did not know why he had made a mistake in that form and could not explain it.

[25] Thirdly, as submitted for the defender, the pursuer's evidence does not bear a satisfactory comparison to his pleadings. It is averred that he was standing on the footplate and reached into the cab for the breathing apparatus. He said in cross-examination that the footplate was the first external step, that he never gave the account in the pleadings to anyone and that he would not use the word "footplate". He said he had read the pleadings but did not notice the errors in them. No evidence was led to explain the difference in the account given in the pleadings and that given by the pursuer in evidence.

[26] Fourthly, his evidence in chief about where he was in the cab and where he slipped was extremely vague. It was only when I asked him some questions that anything like a clear account emerged. He said he was on the cab floor stepping onto the first step down. (There were two conventional steps behind the door.) He did not say which foot slipped - the one on the cab floor or the one on the step below it. Nor did he explain how a slip at that stage caused him to fall backwards while he was carrying a significant weight in front of him.

[27] Fifthly, there were a number of points on which the pursuer was criticised by his colleagues. He said that all 11 crew were involved in the transfer of the kit from the broken down tender to the other one, that he had been called from the rest room by Mark Peters to carry out this task and that they had to drop everything, otherwise aircraft would be unable to land. Mark Peters said he gave no such instruction and neither did his colleague Mark Littlefair as far as he knew. Neither Swift nor Gay made any mention of urgency. Nobody supported the pursuer on the proposition that it was a broken down tender that was being stripped of equipment.

[28] The pursuer's evidence was that it was standard policy to carry out the breathing apparatus in the way he said he was doing. He said he was a breathing apparatus instructor and taught procedures for carrying and wearing breathing apparatus. Gay said that there were two methods - that described by the pursuer, and placing the apparatus on the floor, climbing out of the tender and then lifting it out. Swift described the latter procedure and Low described yet a different procedure involving slinging a strap over one shoulder and then going out backwards. Low had never seen it being carried out by hand unless it was being passed to another person. Peters' unchallenged description of the scene was that he saw a compressed air cylinder, not a breathing apparatus set, lying near the pursuer.

[29] So far as the number of steps inside the tender is concerned, it was the pursuer's evidence that there were two steps inside the door. Two witnesses, Low and Swift, contradicted him by saying there were no internal steps. Peters, who was led as a witness for the defender, and upon whom reliance was placed on behalf of the defender, said that there was one internal step. No photographic evidence was produced of the internal layout of the tender behind the concertina doors. In the absence of such evidence, and in light of the conflicting evidence from the witnesses, I am left in the position that I am unable to make any finding in fact about whether there were any, and, if so, how many steps inside the door of the tender.

[30] Sixthly, the pursuer's general credibility and reliability are affected by his evidence of his alleged injury, which I discuss below.

[31] As I did not find the pursuer to be a generally credible and reliable witness I am unable to make findings in fact about the accident, other than that he was found lying on his back on the tarmac. I do not consider that I am able to determine where precisely he fell from and how and why he fell. I therefore find that the circumstances of the alleged accident have not been proved. In particular, I am not satisfied that the cause of any fall was water on his boots. It follows that no breach of common law or statutory duty on the part of the Ministry of Defence has been established.

Evidence of injury

[32] The pursuer avers that he has been diagnosed as having suffered neurological damage to his external sphincter, that he has suffered and continues to suffer faecal incontinence, that he has little warning or control when he needs to defecate, that he requires to use incontinence pads and rectal plugs and to irrigate his rectum regularly, and that he suffers from anxiety and depression, has become irritable and emotional, experiences feelings of hopelessness and despair and has been prescribed anti-depressant medication.

[33] The pursuer stated in evidence that he was off work for a few weeks after the accident and that when he went back to work his back was still tight but he was mobile. Things were really bad before he went back to work as he was being incontinent. He thought the accident had been on a Thursday and he became incontinent on the Saturday when watching the football results on the television. He thought he had a bit of wind but then he felt the faeces on his legs. His reaction was one of panic and he had to clean up before his wife came back from work. It happened again twice in the next couple of weeks. The second time he was moving about when he felt it. He thought he had cancer. He did not tell his wife until she found out two or three weeks after the accident when the bed and sheets were soiled. She asked him what had happened and he broke down and told her. She told him to go to see Dr Rutherford. He lied to her a couple of times thereafter that he had been to see Dr Rutherford but at some stage she made an appointment for him and he went to see Dr Rutherford weeks after the accident. He did not think he told Dr Rutherford about his incontinence when he first saw him. He thought he was coping OK with work but he had a lot of help. He was doing the minimum and said to his colleagues that he was not feeling too great. He did not tell them that there was risk that he might become incontinent. He had episodes of incontinence every few shifts. He wore a firefighting kit and it was a matter of changing it. He got the odd comment from colleagues about showering or going to the toilet again. On the last day he spent at work the faeces were running down his legs in the middle of the runway. He returned to his work a few months later for an interview with Miss Sheryl Combe, the Civil Personnel Officer. The faeces were running down his leg when he was speaking to her in a small office and he got upset, as did she. He was taken home by Station Officer McLaren. After that meeting he gave up. A welfare gentleman from Rosyth later came to see him and advised him what his options were. His employers wished his GP records but he did not wish to give them to them. He knew his employers wanted rid of him and he was deeply depressed at the time. He was retired from 8 September 2000 without having undergone any medical examination and was in receipt of an ill health retirement pension and an injury on duty pension.

[34] Before the accident his hobbies were running and football, mainly the former. He had run in 35 full marathons and his target was to achieve 50. The best time he had achieved was 2 hours 46 minutes in London. The Ministry of Defence had given him leave to represent the Ministry and the Royal Air Force all over the world. He trained about every day and ran 60 to 70 miles per week.

[35] The pursuer accepted that he had problems with his bowels before the accident. He felt constipated all the time. When he went to the toilet he had trouble beginning a motion, but he had never been incontinent before the accident. He had seen his doctor about his constipation and was told to take Fybogel. He had to clean himself out with his fingers from time but had no embarrassment about that. He was unable to tell his doctor about his incontinence after the accident because it was so embarrassing. In the early days he felt everyone was looking and laughing at him. Nobody knew about his constipation, but his incontinence could be smelt.

[36] After September 2000 (he thought about April 2001) he obtained a job teaching fire safety and fire prevention at Bridge of Earn but had to give up after 11 or 12 days as he was incontinent at a lecture and had no change of clothes. At that stage he was being incontinent about every second day. He thereafter attended Elmwood College in St Andrews to do a computer course but lasted only a few weeks because of his incontinence.

[37] He had tried running in the weeks after the accident. He did 5, 6 or 7 mile cross-country runs after his employment ceased. He did not get on very well: he was incontinent but it was not so obvious as everybody was covered in mud in a cross-country run. He had never run in a competitive race since he had left the Ministry of Defence, but he had gone out for a jog on one or two occasions. He was sent to see a psychologist Mrs McGarva for his depression after the accident. When he tried jogging he was incontinent, if not during the run then after it. He was trying to avoid things but Mrs McGarva was trying to get him to plan ahead and running was part of getting everything back on track. He jogged at home up and down the drive and then out in the street. He managed three or four miles. He was incontinent about half the time when he ran. He was more likely to be incontinent if he hurried or ran. He had been seeing Mrs McGarva about every month for a few years. He had not been getting better and had been waiting many years for an operation. He had seen colorectal surgeons, psychiatrists and neurologists. His previous house had been too small and he had moved to another house where he had a toilet to himself. Initially he thought he would have an operation and get back to normal. He had to do irrigation (which took between 10 and 15 minutes) twice a day. He had to wear rectal plugs, which made him walk like a penguin. He took loperamide for incontinence and cipramil for depression.

[38] When he was referred to the averment in answer 7 at p 16C-D that at or about the end of 1999 he was being investigated by the Ministry of Defence Police in respect of financial irregularity he said he was shocked when he heard that. As far as he knew everyone who had been on detached duty from Leuchars to Brize Norton was investigated. One employee had been taken through the disciplinary process and was found to have no case to answer. He never had anything to hide and the matter was closed.

[39] Under cross-examination the pursuer stated that he was desperate to get home from Ninewells Hospital the day after the accident as he did not like hospitals and wanted to get home. He was in agony and in tears in the back of the van which took him home. He had problems walking and could not sit. He was referred to the entry in the hospital record (7/2 of process, p 9) recording a medical examination at 2.45 am on 27 November 1998 in which the following was noted:

"Normal tone and full range of movements both arms and legs."

He said that was not correct. He was also referred to an entry in the nursing records for 26 November at 2200 hours which noted: "Refused any analgesia at this time." He said he was not denying that that happened but he had no knowledge of having refused painkillers. He had a memory of his wife leaving and his then falling asleep. He was in pain.

[40] He went on to say that he was unable to be precise about the period for which he was off work after the accident. Before the accident he had had a lack of bowel movements and there was a time when he also had loose motions. It was incorrect to say he had had loose motions over a period of years before the accident. He was referred to letter dated 21 November 1996 from Mr R T Diggory, Consultant Surgeon at St Andrews Memorial Hospital, to his GP (7/8 of process, p 118) in which the following was stated:

"Thank you for your letter concerning this pleasant 36 year old man. For the past two years he has been suffering from episodic rectal bleeding on defecation and 'constipation'. His constipation is actually difficulty initiating defecation and paradoxically he has up to 4 loose bowel actions a day."

He accepted that at that time he had loose bowel motions, but he had not had them for two years: they were sporadic or intermittent. He did not suffer from constipation and loose bowel movements all the time and he was very fit.

[41] He was also referred to a letter from Mr Alan Milne, Specialist Registrar at the same hospital, dated 3 April 1997, in which Mr Milne stated:

"I saw this patient for review today. He is still having some problems initiating defecation and then with frequency of defecation after this. He gets some discomfort in the peri-anal region after his bowels have moved a few times. I note that his recent barium enema was normal."

He stated that he did not accept that he had the two features of constipation and loose motions before the accident.

[42] He was also referred to entries in his GP records after the accident (7/8 of process, p 9). The entry for 1 December 1998 reads as follows:

"Fell a week ago - still some muscular spasm - wait another week. (Sign for sickness certificate) - 8.12.98 -'back injury'.

Still gets the mushy stool problem. Try celerac and review."

The entry for 29 December 1998 reads:

"Still having the difficulty initiating defecation. Then the flood of stool. Has to go back x 3. Refer GE clinic (away January)."

He accepted that these entries did not mention loose motions and reiterated that that was because at that time he did not want to tell anyone: he just wanted it to go away so that he would get back to his life again. He was sent to St Andrews Memorial Hospital and was referred by the Dr John Wilson, Consultant Physician, to Mr David Bartolo, Consultant Surgeon at the Royal Infirmary of Edinburgh. In a letter dated 12 August 1999 to Mr Bartolo (7/8 of process, p 107) Dr Wilson wrote:

"I wonder if you might be kind enough to see this man - he is a 39 year old fireman who for the last 8 or 9 years has had some difficulty in initiating defecation. On occasions he may need to use his finger to assist. The stool itself is soft, and he has found a degree of relief with the use of Fybogel which he has been using for the last couple of years. ... there really are no other symptoms - he is fit and well, does not smoke and takes only occasional alcohol, and has previously been quite well.

Physical examination is normal and I enclose a note of his sigmoidoscopic findings.

It is not clear why he has this but I wonder if there is some anal sphinteric problem, and whether you would be prepared to investigate further."

He accepted that the first record of his incontinence problem was in his GP's note of 6 October 1999, which reads:

"Having marked difficulty at work. Fireman at Leuchars. When can't get access to toilet on call he can be incontinent of faeces. Getting extremely worried and scared by it. Stayed off work from last week. 22 years in Fire Service."

The entry also noted that he was given a sickness certificate for two weeks. He was adamant that his incontinence started on the Saturday after the accident and that he would never forget it.

[43] When he had gone back to work after the accident he had tried to do a lot of paperwork. He just wanted to get through the day and not be incontinent. He could not say if he was never off sick in the first six months of 1999. Most fire services worked on the basis of four shifts out of eight days, so over a six month period he would have worked 70 to 80 shifts, taking holidays into account. There were shifts during which he avoided operational duties. He could not say how often he avoided active work. It could have been half and half, but really it was a total guess: it could have been that he did that most days. He found it difficult to give an answer. He would try to arrange to be behind a desk for a good majority of shifts. He would try to arrange with other leading firefighters (Lowe, Kingsley and Gay) to be behind a desk by trading off duties with them. He had worked at various bases in England in 1999: at RAF Cottesmore from 2 to 21 January, 5-14 April and 17-21 May. He had no recollection how many other men went with him from Leuchars, but he knew other firefighters at Cottesmore. It was never a consideration for him how many others would go from Leuchars. He always chose to go. In all his detachments over 23 years he had gone out to night clubs but he did not think he went out socialising or night clubbing during his detachments in 1999.

[44] He admitted that in February 1999 he had competed in the annual cross-country championships. Although he completed the race he had incontinence during it. He was referred to the records of his times for the races from 1995 to 1999 inclusive (7/32 to 7/36 of process inclusive) and accepted that in 1998 he was in 50^th position with a time of 40 minutes 51 seconds (9 minutes 32 seconds behind the winner) while in 1999 he was in 42^nd position with a time of 41 minutes 17 seconds (8 minutes 17 seconds behind the winner). Although his time relative to the winner in 1999 had improved over that in 1998, he did not feel he had done his best. There were different runners each year and you could not judge cross-country races from year to year, but he had to accept that the same man had won the race in 1997, 1998 and 1999. It was his opinion that in 1999 he was not able to complete the race in a respectable time.

[45] So far as alleged financial irregularities were concerned, he had been told that every officer was being investigated. At the end of 1999 two gentlemen came to his house and he supplied them with information. He could not recollect if the meeting with Sheryl Combe in 2000 was to discuss the investigation into financial irregularities. He remembered being incontinent in her office. He had been asked to report to the Fire Station in uniform and he then received a phone call from Sheryl Combe. No one ever told him there was any disciplinary hearing and he had no idea about any disciplinary action; Sheryl Combe asked him to go for an interview and he went. He thought it was an interview about whether he should continue in employment.

[46] The pursuer was asked a series of questions about his jogging activities. He said that he was able to go jogging after he left the Ministry of Defence, but he could not say how many times over the previous three or four years he had jogged for three or four miles. He accepted that the video recording 7/12 of process showed him coming out of his house and getting into his BMW car on 25 September 2003 and also going to see Dr Stewart on 18 November 2003. By the latter date he had known he was being filmed. He could not answer one way or another whether he was jogging with the dogs in the park after 8 am on 25 September 2003. Incontinence did not stop jogging until the onset of incontinence.

[47] The pursuer accepted that the first reference to incontinence in his GP records was in the note of the consultation of 6 October 1999 (7/8 of process, p 9). He was referred to the letter of the same date (7/5 of process, p 13) from his GP Dr Rutherford to Mr Bartolo, the relevant part of which states as follows:

"John Wilson recently referred this man to you and he has an appointment for your clinic in January of next year. He works as a fireman at RAF Leuchars - a job he has done for 22 years. Naturally he has to participate in emergency call-outs and on two recent occasions he could not attend at the right time because of the need to defecate. When he did have to then attend an emergency he ended up with faecal soiling on two occasions. Naturally he found this extremely distressing and his job is in jeopardy as a result."

He accepted that that letter read as though his incontinence problems were then recent but repeated that once he had had his accident he did not want to tell people. He began to weep and said "I've done wrong, but I'm sorry".

[48] In re-examination the pursuer said he was in hospital overnight after the accident and off for a few weeks. He had not been asked for the purpose of an accident report what had happened to him, so an account on a form definitely could not have come from him. When a policeman spoke to him he told him the police were investigating everybody and that he had to phone Detective Sergeant Clark when he was better. He spoke to a gentleman on the phone who took details and said not to worry about it.

[49] The pursuer's wife, Mrs Sandra Rooney, said that she was phoned at work on the day of the accident and told the pursuer had been taken to hospital. She visited him for about an hour in hospital. He was in pain and his eyes were glazed. His fireman's trousers could not be taken off because he was in so much pain. The following day she was at home when he was brought home lying down in a minibus. He was still in a lot of pain and walked into the house very slowly. She thought he was off work for about a week or ten days. She thought his back was slowly improving. She was not aware of any difficulties in his health when he returned to work. Roughly two weeks after the accident she noticed faeces on top of an air freshener can in the toilet and took it down and asked her husband and their daughter about it. Danny said "I don't know how that got there". She could not say how long after that it was that she found faeces again. She would find it on the wall, on the floor and a lot of it under the toilet seat. 90% of the time when cleaning the toilet she found something, such as splashes on a face sponge. It would be quite a regular occurrence, then she found more and more and more. She sometimes spoke to her husband about these further discoveries until it seemed to get a bit ridiculous. About ten days after she had found faeces on the air freshener her husband had an accident in bed. He jumped out of bed and there was "like a skid mark going to the edge of the bed". When he came back from the toilet he told her he thought he had a stomach bug and she accepted that. The following day after finding splatters of faeces and some blood in the bathroom she spoke to him. She told him there was something wrong and he should go to the doctor. He told her he was fine, there was nothing wrong but he would go to the doctor. She told him that because of the blood she thought it was bowel cancer and he told her not to be so stupid. Later on he said the doctor was talking about lemon tea. She did not know anything about a constipation problem he had before the accident. She thought he had gone to the doctor but he would not tell her things at the very beginning: it was just like it wasn't happening, it was very odd. Every so often she thought he was trying to clean up more in the bathroom.

[50] She knew he had been to the doctor when he was having to go to see consultants. She asked him if they had put cameras up his bottom, but he was really embarrassed, even with her. He told her he was on the waiting list for an operation with Mr Bartolo but it was cancelled as "they didn't think it would work". She thought he was disappointed, but he was petrified of operations. He once soiled himself in a car park when he was walking towards her. He took to starting to wash things and from September 2001 onwards she would find his underpants scrunched up and ready to dry. In the end he had to tell her after he left this job. The problem was serious before he was medically retired. Before the accident her husband was a fitness fanatic who would run regularly but now he was anxious and would lose his temper. She could understand why he was anxious but at times it just seemed like he'd lost the plot: he did not cope very well and he felt unmanly. She had seen him try jogging only twice. He was a member of a golf club and did nine holes on a Sunday morning. He also went to the local pub. He would go out for an hour or two but felt below his friends because of his condition.

[51] Sheryl Combe, a civilian personnel officer at RAF Leuchars, gave evidence for the pursuer. She stated that before the accident the pursuer would come into her office fairly regularly to deliver or collect mail. He was pleasant, polite and had a sense of humour. When he came back to work after the accident he was more or less the same, maybe a bit down sometimes, but that was normal. She did not see him as much as she previously had. He went off work in September 1999.

[52] In May 2000 he was invited in by the Station Officer for a meeting about a disciplinary matter. It was originally to have taken place in the Fire Office but it took place in her office as the pursuer wished more privacy. When he came into the main office he said he was OK to proceed and glad to get his chance to put his case. She went into her office and then heard that he had gone to the toilet and left. He had been there for about half an hour. She later received from the pursuer a letter dated 19 May 2000 in which he stated:

"Dear Sheryl

Firstly, I would like to thank you and your staff for the help I received when I was unwell in your office last Tuesday. Although the incident was very distressing it would have been much worse without your and Steve's help.

I am enclosing a copy of the Consultants (sic) medical report confirming my present medical condition was indeed caused by an industrial accident. Could you please arrange for corrective pay action to be taken on my behalf?

It is with deep regret that I must now request that due to my health problems I wish to apply for medical retirement at the earliest possible date.

I feel I must now take the advice of my GP and Consultant in that I will never be physically fit to return to Fire Service Duties and the sooner I accept that the easier my depression problems will become and I can then stop taking the medication. I can then plan some sort of life in the future."

The pursuer was later retired on ill health grounds. The medical retirement certificate (7/15 of process, p 27) from the Occupational Health Physician was dated 12 June 2000.

[53] In cross-examination Miss Combe stated that the purpose of the meeting in May 2000 was for the pursuer to have a discussion about the disciplinary matter with the Station Officer, Glynn Kearsey. The pursuer would have been told the purpose of the meeting in advance and he had asked in advance for a switch of venue. The disciplinary matter related to expenses claimed when working away from RAF Leuchars. A lot of employees were involved. The Ministry of Defence Police had become involved in October 1999. The pursuer would have been aware of this very soon after the initial investigations. He had been visited at home by the Ministry of Defence Police in October 199. When the case was handed over by the police to the Base Management only the pursuer and one other employee (Stewart Lowe) were involved.

[54] Miss Combe confirmed in re-examination that the disciplinary process narrowed down to the pursuer and Mr Lowe. Both were charged with submission of a fraudulent travel claim. Mr Lowe attended a disciplinary meeting after the Station Officer had found that he had a case to answer and was held to have acted honestly. There was no disciplinary procedure against the pursuer as he was ill and medically retired and he should have been informed by someone that the matter was not to be taken further. The relevant papers had been removed from his personal file as there had been no finding of guilt.

[55] Keith Coventry was a professional investigator who was led as witness on behalf of the defender. In August 2003 he had been asked to carry out investigations on the pursuer and over the next three months he intermittently carried out investigations and surveillance. He spoke to his report 7/10 of process, which dealt in particular with September 2003. He remembered Thursday 25 September 2003 quite vividly. He recorded various comings and goings by the pursuer. He observed the pursuer jogging over 20 to 25 metres before he lost sight of him, at which point he was still jogging. He could not say if the pursuer was jogging when he returned from the park 30 minutes later as his view of him was obscured. That was the only occasion on which he saw the pursuer jogging. In cross-examination he stated that when the pursuer returned from the park he was rather flushed and appeared to have been jogging, but he accepted that that was an assumption on his part. He had carried out many, many hours of surveillance and observed the pursuer on four occasions. In re-examination he stated that he hoped the video recording would show that the pursuer looked rather flushed when he returned to his car and he, who had been known to do jogging himself, thought it most likely that the pursuer would have been slowing down.

[56] Medical evidence was led from a total of six doctors (apart from Dr McGregor, referred to above). They were Dr Daniel Rutherford, the pursuer's GP up to about March 2000, Dr Ian Mathewson, his GP since March 2000, Mr David Bartolo and Mr Ian Finlay, both Consultant Colorectal Surgeons, Professor Michael Swash, Professor of Neurology and Dr Colin Rodger, Consultant Psychiatrist. Apart from Mr Finlay they were called as witnesses for the pursuer.

[57] Dr Rutherford saw the pursuer on 1 and 29 December 1998, 14 April 1999, 6 October 1999, 20 October 1999, 19 and 29 November 1999, 10 January 2000 and 21 February 2000. The consultation on 14 April 1999 was for a sore throat. In his note of the consultation on 6 October 1999 he had not recorded when the incontinence actually started. He could remember the pursuer describing the episode when he was in the toilet at an emergency call-out and soiling his pants on the runaway, but could not remember whether they were the same incident. The pursuer had an existing bowel issue he was dealing with fairly well. Generally speaking incontinence was not something patients told you about right away. It was a big and not necessarily fair assumption to make that the pursuer would mention incontinence right away as an existing issue. He had never had any doubts about the pursuer's honesty in his description to him of his condition: if anything he understated it and was inhibited in talking about it. He remembered the pursuer being very anxious looking on 19 November 1999 and noted "Getting very depressed. Irascible. Emotional +." The pursuer's mood was better on 29 November 1999. On 22 February 2000 he wrote a letter (7/8 of process, p 88) to the pursuer's solicitors in which he set out the pursuer's relevant medical history. He there stated that in 1996 the pursuer had some rectal bleeding and was examined by a consultant surgeon who confirmed that he had normal sphincter tone in the anus with good normal reflex and voluntary contractions. He had some difficulty at that point in initiating defecation but the problem was relatively minor. A barium enema in February 1997 was normal. Although he had a past history of trouble the actual incontinence episodes seemed to date following a fall onto his back while at work during 1998. Subsequent neurological tests and MRI scans of the spine demonstrated that there was no underlying congenital disorder. In cross-examination Dr Rutherford stated that he would associate the pursuer's anxiety and depression with the effects of his incontinence. The first mention of incontinence and anxiety and depression came on 6 October 1999. It was possible that the pursuer had had incontinence and not mentioned it to him, but he accepted that once the pursuer got over the threshold of telling him about his incontinence there was no reason why he should not have told him how long he had had it for. His letter of 6 October 1999 to Mr Bartolo (7/8 of process, p 106) referred to "two recent occasions" as that was the impression he received from the pursuer. There was no history of incontinence dating back to December 1998. In re-examination he stated that the pursuer could have told him of other episodes and he could have failed to record them. You could have any combination of constipation, diarrhoea, ill-formed stools and incontinence.

[58] Dr Mathewson first saw the pursuer as his own patient on 28 March 2000 (after Dr Rutherford had left the practice) when the pursuer saw him to report that he was seeing Mr Bartolo. The pursuer struck him as a somewhat intense, anxious individual but straightforward and honest. When he had first seen him on 9 July 1994 he remembered him as being very nervous. He went from being anxious to being depressed and low. When he saw him in March 2000 he noticed he was a different fellow. He had to date been on cipramil (an antidepressant) since it was first prescribed for him by Dr Rutherford on 19 November 1999. When he saw the pursuer on 2 June 2000 (after he had seen Dr McGregor at the Benefits Agency) he felt that it was wrong to say that he was fit for work in some capacity. He saw the pursuer on 28 September 2000 and wrote to Mr Bartolo on 29 September 2000 (7/8 of process, pps 55-56) to ask him to see the pursuer again to discuss the use of anal plugs and to re-explore the possibility of corrective surgery (he thought neuromuscular grafting). On 22 September 2000 the pursuer was put on a stronger dose of antidepressant. On 26 October 2000 the pursuer was seen at home by an emergency doctor and admitted to hospital for an appendicectomy. Dr Mathewson remembered the sad meeting with the pursuer on 4 May 2001. For the pursuer to have lost his job as a civil defence fireman was a great blow. He had got a job as a fire inspector and had become incontinent when giving a lecture. He thought the pursuer was shattered, almost destroyed by what had happened. When he saw the pursuer on 1 June 2001 he was planning to move house and he thought he was a pretty desperate man in a grief reaction.

[59] Dr Mathewson had produced two reports on the pursuer for his solicitors - one dated 26 June 2000 (6/6 of process, referring to a benefits claim appeal) and one dated 31 December 2001 (6/7 of process). He had counselled the pursuer on how to come to terms with the loss of his job as a civilian fireman. The pursuer had never given him the impression that he had "compensationitis": he made good eye contact and was not a very difficult man to read. It was well known that people were very reluctant to speak about incontinence. Constipation was a very different matter as it was not generally regarded as something with a large social stigma like faecal incontinence. The pursuer's problem had not been constipation, but a difficulty in opening the bowel. The pursuer's incontinence had remained the same and he was still a patient of Mr Bartolo with the option of surgery. He did not think that there was any doubt that the pursuer would come to surgery of some description. In cross-examination Dr Mathewson confirmed that the first reference to incontinence in the GP records was dated 6 October 1999. People concealed faecal incontinence, but once the pursuer got over the initial hump of talking about it there was no reason not to be honest about the extent of the problem. In re-examination he said that you could not infer incontinence from the entry on 26 December 1998 "Has to go back x 3". Incontinence was involuntary loss of faecal material: frequency of defecation was different and not necessarily pathological.

[60] Dr Colin Rodger, Consultant Psychiatrist, saw and examined the pursuer on 24 September 2002 and 4 February 2004. He spoke to his reports, 6/10 and 6/42 of process respectively. He expressed the following opinion in his first report:

"In my opinion, Mr Rooney's psychological difficulties are due to a depressive illness (DSM diagnostic code 296.22, ICD diagnostic code F32.1) that, on the balance of probabilities was precipitated by the accident and its effects on his physical health and which would not have developed if the accident had not occurred."

He recommended more aggressive efforts at antidepressant treatment and clinical psychology therapy and expressed the view that if these approaches were used in combination it was likely that there would be some improvement in his depressive symptoms with some associated benefit on his general quality of life but that his psychological difficulties were likely to persist in some degree for as long as his difficulties with faecal incontinence continued.

[61] The opinion expressed in his second report was essentially unchanged from that in his first report. When he saw the pursuer again in December 2005 there was no significant change in his condition. He thought it likely that the pursuer's psychological condition would improve if he had no physical illness. The uncertainty about his condition was an added stress. An allegation of fabrication made against him would be likely to affect his condition.

[62] In cross-examination Dr Rodger was referred to para 2.05 of his first report, in which he noted a statement by the pursuer that he had had to give up running since the accident. He did not recall the pursuer telling him that he took part in cross-country championships in February 1999. The statement in para 4.01 of his first report that the pursuer "fell approximately ten feet injuring his lower back" came from the pursuer himself. His view was that the dominant issue was incontinence and that there would have been no depressive illness if incontinence had not developed.

[63] The evidence about faecal incontinence came from Mr Bartolo, Professor Swash and Mr Finlay.

[64] Mr Bartolo was Consultant Colorectal Surgeon at the Western General Hospital, Edinburgh and Honorary Senior Lecturer in the University of Edinburgh. His curriculum vitae is 6/47 of process. Among other qualifications he held the degree of Master of Surgery from the University of London for a thesis on incontinence and obstructed defecation. Colorectal surgery had been an academic interest for him from about 1980 and he had been a consultant in it since 1987. He had the largest gracilis programme outside London. Gracilis was an operation to treat very severe incontinence in patients who had lost muscle function and it basically involved taking a muscle from the thigh, wrapping it around the anal canal and then applying a nerve stimulator. He had been involved for 18 years in the area of anorectal physiology and his work had been recognised by numerous publications in respected journals. He had published about 139 papers, many of which were on incontinence, constipation and similar disorders. He had published on the subject of anal canal sensation on a number of occasions and was part of a group of three researchers who had done the first work of measuring anal canal sensation, which showed that sensation was impaired in incontinent patients.

[65] Mr Bartolo prefaced his evidence by giving a general description of the workings of the bowel and associated structures. He explained that faeces were delivered to the rectum, which was like a flask with a narrow neck, surrounded by two muscles: the internal sphincter, which was always contracted, and the external sphincter, which was normally relatively contracted, but had the ability under voluntary control to increase. When someone wanted to pass gas the gas would distend the rectum and he would be aware of that and there would be a reflex relaxation of the inner sphincter which would open the anal canal a little bit and allow whatever was in the rectum to come into contact with very specialised sensory nerves. The person could discriminate between gas, liquids and solids. He would contract his external sphincter, and, as long as the pressure wave in the rectum relaxed, he would remain continent. Continence depended on the external sphincter compensating for the relaxation of the internal sphincter. Two different things were being described, nerve sensation and muscle function. The external sphincter was a muscle that fatigued and after about 45 seconds, if the urge persisted, the person would be incontinent. So someone who got gastroenteritis on holiday had to rush to the toilet, otherwise he would soil. Accordingly, even with a normal sphincter, if there were enough contraction within the rectum because of disease, such as gastroenteritis, the person might be incontinent because of fatigue. In a normal person the sensation and the muscle function worked together to operate in a particular way. In female patients childbirth injury often damaged the external sphincter because the baby's head tore the back of the vagina, and in extreme cases could tear both the internal and external sphincters.

[66] He went on to explain that he saw two types of faecal incontinence. One was of the type just mentioned, namely, a gut upset. The other was passive incontinence, where a patient was unaware that he required to go to the toilet and may find on going to the toilet that he has soiled himself. That classically occurred in people whose inner sphincter had relaxed because of damage of some sort, so that the stool simply came out. In the case of a patient with passive incontinence he would take a history, carry out an examination, do an ultrasound scan of the anal canal musculature and then go on and do what were called physiology investigations. These were measurements of rectal sensation and pressure. A balloon was put in the rectum and slowly blown up with air or fluid. The patient was asked when he first felt it and normally it was first felt between 30 and 50 ml. The urge to defecate would normally be felt at 200ml and maximum tolerable volume at 300ml.

[67] Mr Bartolo was initially asked to treat the pursuer as a patient, not to examine him in a medico-legal context, and first saw him on 15 November 1999 at the Outpatient Clinic at the Murrayfield Hospital in response to Dr Rutherford's letter of 6 October 1999 (7/8 of process, p 106). He made a manuscript note of that consultation (7/5, p 10) and wrote a letter dated 16 November 1999 (7/8 of process, p100) to Dr Rutherford, which to a large extent repeated the terms of his note. The letter stated:

"Thank you for kindly asking me to see this unfortunate man, who really is in quite a great deal of trouble because he is unable to work because of his defecatory disorder. He finds that he has to digitate to achieve defecation, then has to make repeated visits to the loo, up to 3-4 times over half an hour. Following this his anus feels very uncomfortable. He finds defecation easier if he does not sit down. He manages at home, but is finding things impossible at work. He has been in the loo and has had to miss going on an emergency call when aircraft are landing. Furthermore, he has been incontinent in the middle of the runway, and has become in quite a state over all of this.

His problems started about 8-9 years ago, but the incontinence seems to date following a fall onto his back last year.

If he does not digitate he is more likely to be incontinent. In addition, he is having some blood and jelly mixed with his stool.

On examination, he was fit, but rather anxious. His abdomen was normal. Rectally there was no pelvic floor descent. He had good resting tone, but a very poor voluntary contraction and he did not relax when asked to push down. I have arranged for him to have ano-rectal physiology investigations, together with biofeedback, at the Royal Infirmary and I will also organise an MR scan."

Mr Bartolo explained that it was his understanding when he wrote the above letter was that the pursuer had not been incontinent prior to the accident, that he had had some difficulty in initiating defecation, but this was a manageable problem and that he subsequently became incontinent following the accident. The pursuer's incontinence on the runway did not start till after his injury.

[68] Mr Bartolo had later (he thought in May 2000, following another consultation at the Murrayfield Hospital) written on his manuscript note:

"Loss of control dates from the fall. Fell onto his back. Copy my notes to RIE."

[69] Subsequently, by letter dated 24 January 2000 (dictated on 24 January 2000), he wrote to Dr Rutherford with the results of the tests as follows:

"We have now completed the physiology investigations on this patient. They show that he has a normal resting pressure and much to my surprise can produce a squeeze, albeit it's not much. He has a reasonable cough pressure. What is highly abnormal is his rectal compliance. He has a volume of first sensation of 356 ml, which is grossly in excess of the normal 30-40 ml and a maximum tolerable volume of 417, which again is greater than the normal maximum of 300. His pudendal latency is normal. As you know his MR scan showed no evidence of neurological injury.

Loss of rectal sensation is a potent cause of faecal incontinence where the rectum fills before the patient becomes aware and then overcomes the sphincter, leading to passive incontinence."

He went on to state that the pursuer was being taught how to carry out rectal irrigation and asked Dr Rutherford to arrange physiotherapy for him to try to improve his conscious control of sphincter function. He explained that rectal compliance was the relationship between pressure in the rectum and the volume. A non-compliant rectum would accommodate a small amount of fluid and generate a high pressure, whereas a complaint rectum would allow a lot of fluid and generate a low pressure.

[70] Mr Bartolo saw the pursuer again on 1 May 2000 and subsequently produced his report dated 10 May 2000 (6/8 of process), to which he spoke in evidence. The accuracy and reliability of the pursuer's account was central to his diagnosis, but at no time had he ever suspected his account. The investigations which were carried out had revealed no neurological cause for his symptoms. In that report Mr Bartolo stated:

"A consultation was held at the BUPA Murrayfield Hospital to provide a medical report for Mr Rooney. He informed me that he was having physiotherapy but did not feel that he had sustained great benefit from this. As far as his control was concerned, he was irrigating his rectum regularly, using 2 litres of water. He felt that this had transformed his life in that he was no longer incontinent. His major problem was that he was required to be on duty for a 24 hour period and would not be able to spend 30-45 minutes in the bathroom, that rectal irrigation requires (sic). As a consequence his position as a firefighter has become virtually impossible to sustain, and he is no longer currently working.

It appears that this man had an existing disorder of defecation characterised by difficulty with evacuating his rectum. Following his injury this was also complicated by faecal incontinence, a symptom he had never previously suffered. Thus, on the basis of the history presented to me the incontinence only developed following his fall.

One can conclude on the basis of his story that the fall was likely to have played a role in the genesis of his faecal incontinence. There was a background problem of difficulty with evacuation and this in turn may have been related to his loss of sensation. In the absence of previous investigations firm conclusions cannot be made regarding his rectal sensation. He also has absence of his recto-anal inhibitory reflex and this in turn is likely to reflect loss of rectal sensation. ....

I consider that one can say with reasonable certainty that Mr Rooney had a long-standing defecatory disorder, characterised by difficulty with evacuation. Following his injury he developed faecal incontinence that has resulted from some form of neurological damage to his external sphincter."

[71] So far as the accident was concerned, it was his understanding that the pursuer had slipped and fallen backwards, landing on his back, but beyond that he did not have much detail on precisely what had happened to him. In so far as the pursuer had informed him that he was never incontinent before the accident but became incontinent afterwards he believed his story. The pursuer had been very fit and run lots of marathons before his accident and seemed to be enthusiastic and happy at work, and subsequently he was unable to work. What Mr Bartolo had trouble with was delineating the precise nature of what had caused the pursuer's incontinence, but there were two abnormalities: a weak sphincter on physiology testing and loss of rectal sensation. He did not know whether or not the loss of rectal sensation had caused the pursuer's previous difficulties with evacuation as there had been no previous tests. After the accident the pursuer had lost his discrimination and was unable to deal effectively with what was in his rectum. He thought one could surmise that his rectal sensation had deteriorated because he was no longer able to discriminate following the accident. The pursuer could not have run all those marathons if he had had a pre-existing problem. On being referred to the Accident and Emergency note (7/2 of process, p 3) which narrated that the pursuer "fell from fire truck approximately 4 ft onto base of back ... no bowel, bladder problems", Mr Bartolo stated that he was not really an expert on trauma, but he did see a lot of patients who had sustained various injuries, sometimes with damage to the nerves from similar types of injury.

[72] On 26 June 2000 Mr Bartolo wrote to Dr Mathewson (7/8 of process, p 64) about the refusal of the pursuer's benefit claim as follows:

"I believe quite strongly on the basis of Mr Rooney's history that his faecal incontinence has arisen as a result of neurological damage to his external sphincter, and therefore the conclusions of the medical tribunal are incorrect. My training in surgical science has taught me not to be dogmatic in reaching conclusions. Moreover, my training in medico-legal practice has indicated that conclusions should be reached not on the point of certainty, but on the balance of probabilities. I believe that in Mr Rooney's case on the balance of probabilities his incontinence arose as a result of his back injury, which was sustained during the course of his work."

The above remained his opinion, and he believed that any continuing incontinence was related to the accident. He was not surprised that irrigation was not as beneficial subsequently as it was initially. The opinion expressed by Dr Samantha Phillips in the Ministry of Defence file (7/15 of process, p 10) that it was likely that the pursuer's faecal incontinence was solely as a result of the injury sustained in the accident accorded with his own opinion. His experience of incontinence of the pursuer's type was that it never got better. It was correct that he could not pinpoint the particular neurological difficulty which caused the pursuer's incontinence, but it fitted a pattern with which he was familiar. He asked that a specialised neurological opinion should be obtained from Professor Swash, whom he had known since about 1983, and of whose work he was aware. Along with late Sir Alan Parkes, former President of the Royal College of Surgeons of England, Professor Swash had really laid the foundations of medical understanding of faecal incontinence and its treatment. In his presidential address to the Royal Society of Medicine in 1979 Sir Alan had referred to the fact that people would not admit to their nearest and dearest that they suffered from faecal incontinence for fear of social ostracisation. A paper in the Lancet by Professor Leslie Turnberg, Professor of Medicine and Gastroenterology in Manchester, referred to "the hidden complaint", specifically describing how many patients would go to their doctors saying they had diarrhoea rather than faecal incontinence, a complaint which people were reluctant to voice. He found from his own experience that sometimes a referral letter would say that the patient was suffering from frequent incontinence and at the consultation the patient would not say what the problem was. He had to lead patients by asking specific questions to get the answers. It was just socially unacceptable to be incontinent. The pursuer's account of thinking he had to pass wind when lying on the couch a couple of days after the accident and having discovered that he had been incontinent fitted in with Mr Bartolo's assessment of the causal connection.

[73] So far as prognosis was concerned, he had never been that enthusiastic about a gracilis operation, but the pursuer was desperate and would really have tried anything. The problem would have been his lack of rectal awareness, which could have got worse. Since then a new approach called sacral nerve stimulation had come along which might be of some help to him, but he would never be normal. The treatment could be trialled by temporary stimulation of the nerves in the spine, and if it were successful a permanent stimulator could be implanted. About 50% of patients who were permanently implanted had no incontinence whatsoever and the remainder had a substantial improvement in their control. The problem for the pursuer was that he had two disorders. A colostomy would be a very last resort for the pursuer.

[74] In cross-examination Mr Bartolo said that the history of having to digitate to achieve defecation was given to him by the pursuer at their first meeting. He had never had the opportunity of examining in detail the pursuer's GP's notes. The impression he got from the pursuer was that incontinence was not a problem for him within the four walls of his house but that it was a problem at work. His understanding was that incontinence in the middle of the runway had occurred after his injury. When he saw the pursuer he was seeing him as a doctor and his principal interest was in the symptoms with a view to treating them rather than in assessing the cause of the injury. It was conceivable that the pursuer had had a progressive filling of the rectum that might not have manifested itself immediately: it might have taken a few weeks or possibly even a few months to develop, depending upon how effectively he coped with the loss of rectal sensation, and he could therefore have had a progressive change. If there was a neurological reason for the incontinence he would have expected it to be felt almost immediately after the accident. He thought it was necessary to consider two types of neurological injury: one to his sphincter mechanism, and the other to his rectal wall. A neurological injury to the sphincter mechanism would be manifest immediately, whereas an injury to the rectal wall, causing loss of sensation, might not manifest itself immediately and could take some time to develop. The fact that the pursuer lost his ability to discriminate after the accident led him to suspect quite strongly that there had been a change in his rectal sensation. He believed that the two types of neurological damage, one due to sphincter weakness and the other to loss of awareness, were contributing to his condition. The GP's letter (7/8 of process, p 106) sounded as though it gave the impression that the pursuer's incontinence problems were recent to the consultation. If the picture were of an accident in November 1998, no episodes of incontinence for 9 or 10 months and then two or three episodes of incontinence around September or October 1999, that did not sound in the least bit progressive. He agreed with Professor Swash that the clinical finding of a poor contraction when the pursuer was asked to clench his buttocks could be interpreted either as weakness of the muscle, which was not borne out by the clinical examination, or by poor compliance with the test. That could mean that the abnormality could not be described as anything other than an inability on the part of the pursuer to do the test properly. When he examined the pursuer he did clench his buttocks, but even with that there was a very poor voluntary contraction, so he would not agree that the pursuer was not complying with the test. It was conceivable that with physiotherapy and biofeedback he was better able to contract his sphincter by the time Professor Swash saw him. He got the impression from the pursuer that the major cause of his problem at work was that he was not allowed the time to irrigate. If the pursuer had last been at work before he began the irrigation treatment then either he had misunderstood the pursuer or the pursuer had misinformed him. The accuracy and reliability of the information he got from the pursuer was essential to his opinion, but at no time had he ever found the pursuer's story to be implausible. There was no objective clinical finding of neurological damage, but the pursuer had loss of the recto-anal inhibitory reflex and loss of rectal sensation, and these could be the result of neurological injury (for which there was no objective explanation on the basis of the scans). If the pursuer were going to be incontinent, to run 26 miles would be very difficult. The entry in the Accident and Emergency Records (7/2 of process, p3) "no bowel/ bladder problems" was under the heading "HPC" (History of Present Condition) and would refer to the situation since the accident, but you would not really expect there to be a problem in that short time. A doctor's note in the early hours of the morning of 27 November 1998 (7/2 of process, p 7) recorded a history of a regular bowel habit. If the pursuer were to have successful sacral nerve stimulation it would always be the hope to get him back to work.

[75] Mr Bartolo stated that he had seen the reports of Mr Finlay and accepted that he had no advantage over Mr Finlay in terms of qualification, expertise or experience. Mr Finlay had stated that there was no evidence of any neurological injury to the anorectum. On the basis that the pursuer had a normal MRI scan and normal pudendal latency, Mr Bartolo agreed that there was no evidence of neurological injury, but, on the basis that there was reduced external sphincter contraction and abnormal rectal sensation, there was something wrong with the pursuer, whether neurological or some sort of local effect he could not say. The MRI scan might or might not show injury: it would show a major disc injury or a major nerve injury in the spine, but in the pursuer's case it might be, as Professor Swash suggested, a more subtle change in the pelvis. Pudendal nerve latency could be normal in the presence of nerve damage and was not a definitive test: the fact that it was normal did not mean that there was no damage. Mr Finlay accepted that there had been a loss of rectal sensation but did not think it had been caused by a fall such as that described by the pursuer. He attributed it to the pre-existing condition of obstructed defecation. Mr Finlay had not addressed the issue of the recto-anal inhibitory reflex.

[76] In re-examination Mr Bartolo described his position as a half way house between a treating doctor and a doctor providing information for lawyers. He had not had access to the prior GP records, only to the letters he had received. Dr Wilson's letter of 8 August 1999 (7/5 of process, p 14) made reference to "difficulty in initiating defecation, going back 8-9 years, somewhere like that". He had also spoken to Dr Mathewson on the phone about the benefits claim appeal. He had considerable examples in practice where incontinence symptoms were not reported by the patient till later and timing was not, to his understanding, critical. He believed that the injury had changed the pursuer's life and that the injury and the symptoms were causally related. The findings on clinical examination and the physiology tests were consistent with the pursuer's problem. The pursuer had been a keen athlete with everything going for him and overall his impression was that the pursuer was perfectly credible. If there were incontinence before the accident that would go against it being caused by the accident. When Mr Finlay wrote his first report he (Mr Finlay) had not seen the pursuer. He believed that Mr Finlay had not found an explanation from a colorectal point of view for the pursuer's symptoms and thought the pursuer had some psychiatric condition.

[77] Professor Swash was an eminent neurologist, as evidenced by his CV 6/49 of process. He had wide experience of patients with incontinence. He examined the pursuer on 22 September 2004 and produced a report of his examination dated 23 November 2005 (6/48 of process), to which he spoke in evidence. He had had the hospital records and GP's records and had known of the involvement of Mr Bartolo. He recorded in his report the pursuer's account of the accident and its aftermath in the following terms:

"He landed on his back in the accident. There was swelling and bruising of his back and buttocks but x-rays did not reveal any fractures. He remained off work for about two weeks, resting on a couch at home with pain in his back, but not the legs. He told me that a couple of days after the accident he was incontinent of faeces and that this grew worse over the next few days. He found that he could not control his bowels, finding faeces in his clothing, and also finding that he could not prevent defecation from occurring when it began to commence. His wife said he should go and see his doctor, but he did not at first do so. He returned to work but was troubled by incontinence of faeces occurring while on duty. He then remained away from work but after a twelve month period, allowed for him to recover, he was dismissed."

[78] His note of his examination of the pursuer stated:

"Mr Rooney is generally healthy and there is no specific abnormality in the nervous system in the sense that there is no underlying neurological disorder that might lead to incontinence, for example, multiple sclerosis. Specific examination of the lumbosacral region reveals that the spine is normal. The plantar responses are flexor and the tendon reflexes in the arms and legs are normal including the knee and ankle jerks. There is no weakness, wasting or sensory loss in the legs, including the buttocks and perianal skin. The anal reflex is present. Anal tone is normal and there is a vigorous cough response of the anal sphincter. There is no evidence of weakness of the anal musculature. The anal sphincter is not patulous. The anal margins are clean and there was no faeces on the finger of the examining glove. He seemed to walk with a very slight stoop but there was no other suggestion of abnormality."

He explained that he was more interested in finding out whether there was a neurological abnormality, rather than assessing the absolute strength of the muscle. He thought the clinical examination was notoriously unreliable in assessing the strength of the sphincter muscle.

[79] In the comments section of his report he stated, inter alia:

"Mr Rooney's story does suggest that defecation occurs more or less inadvertently and that, although sensation is diminished, it is the defecatory response that leads to defecation, rather than defecation occurring totally without sensory control. The history very strongly suggests that the defecatory abnormality occurred in some way in relation to the accident. It is difficult to identify the particular pathology. No exploratory procedures have been carried out and no biopsies have been made of the anorectal mucosa or wall to assess the muscular or nerve supply of this organ (and I do not think that these would be indicated since they would not lead to treatment). It is recognised in the medical literature that trauma can lead to neurological damage and incontinence. If, for example, there is damage to the pelvis there may be impotence and incontinence. There is not usually a problem with rectal control alone, but the pursuer had a problem with defecation before so his position may be different. While there is no evidence in the records of this, it is possible that there was retroperioneal haemorrhage which might have damaged the small fibre sensation to the anorectum".

[80] In the summary of his report he stated as follows:

"Mr Rooney's faecal incontinence is temporally related to the accident he suffered in November 1998. He was not incontinent prior to this event and was incontinent afterwards. There was a previous history of defecatory abnormality in that he had a rather typical story of obstructed defecation suggesting mucosal prolapse requiring digitations to sustain a normal defecatory behaviour. After the accident there was an abrupt change in the function so that he became incontinent, with the knowledge of the desire to defecate but the inability to stop it. This has been associated with a raised sensory threshold and reduced anorectal compliance, as shown by the low threshold for maximal rectal volume tolerated. The incontinence is thus associated with a raised threshold for first sensation of rectal filling and a decreased threshold (volume) for rectal filling suggesting a combination of sensory deficit and decreased elasticity of the rectal wall. While it is difficult to identify the particular pathology, it is possible that there has been a haemorrhage in the pelvis or around the anorectum which may have led to the problems experienced by Mr Rooney. Having regard to the temporal relationship between the accident and the development of faecal incontinence, and given the existence of a possible pathology, I am of the opinion, on a balance of probabilities, that it is likely that the accident has caused or at least made a material contribution to Mr Rooney having developed faecal incontinence. With regard to treatment, it might be helpful to repeat the pressure studies and to offer bio-feedback to try and improve the strength of the anal sphincter muscle and to improve its coordination to a more normal pattern of behaviour. It seems to me unlikely that surgical management would be helpful, although I must defer to Mr Bartolo's considered views on this matter."

[81] He explained that as he had thought further about the matter there was little evidence that there was any haemorrhaging in the pelvis and the physiological tests would be rather against that, but it was possible that there was haemorrhage around the anorectum itself which would lead to damage to the anorectal musculature and could result in it having an abnormal response to dilatation and might well damage the nerve supply to the muscles, though at a very distal level, which would be difficult to pick up with the tests used. He described haemorrhage as "reasonable hypothesis" and added that faecal incontinence was a terrible thing to happen and he had never come across it as a psychological symptom "and Mr Rooney never struck me as a man who was pretending or faking or exaggerating his problems". It was more difficult to conclude that there was a causal connection between the accident and the incontinence if the incontinence did not occur until about 11 months after the accident. He put his level of confidence in the causal link between the accident and the incontinence at 80%, subject to a slight caution because of the pre-existing disease, but he thought that that was probably the background upon which the injury was overlaid and that was the problem: that was why it occurred - the two factors together.

[82] In cross-examination Professor Swash accepted that if there was sensory abnormality that it was probable that it was attributable to the pre-accident condition, namely, the difficulty initiating defecation followed by loose stools. If the abnormality was attributable to weakness of the muscle it was likely to have got weaker since 1998 if there was some continuing pathology. Relying on Mr Bartolo's test he thought that the muscle was weak and did not contract properly and that the anorectum could be filled without sensation. There was no histological evidence to back him up in what he said in his summary about the haemorrhage, which was "a sort of possible thought". He thought that he and Mr Bartolo were broadly in agreement although coming to the problem from different specialities: Mr Bartolo was analysing the case from the point of view of a colorectal surgeon interested in the physiology of the anal canal, whereas he was coming at it from the point of view of a neurologist. He thought the fact that they reached the same conclusion for different reasons made their opinions mutually supportive. The pursuer's case was unique: he had never encountered a case like it in the past and could find nothing like it in the medical literature. So far as Mr Finlay's position was concerned (that the only significant abnormality detected was a loss of rectal sensation which was not explicable as having been caused by the fall that the pursuer described), he took issue with the proposition that the only significant abnormality was the loss of rectal sensation because Mr Bartolo had found that the inner sphincter muscle was weak, and he was in partial agreement with the proposition that the loss of rectal sensation was not explicable as having been caused by the fall because he thought the sensory disturbance probably related in part to his previous defecatory abnormality. If it were the case that the only abnormality was the loss of rectal sensation he did not agree with Mr Finlay's conclusion that the causal link between the accident and the incontinence was not established as one would have to do some more investigations to elucidate whether or not there was any abnormality in the sacral innovation, but he agreed that the causal link would be much less likely. In reaching his opinion he was relying on the history given by the patient and on the abnormal tests carried out. The very last conclusion in his report was intended to be speculative as he could not prove the notion of the haemorrhage, which he thought the most likely explanation. He agreed that if the correct factual position was that the incontinence did not occur until months after the accident that was a powerful contraindication of a causal link: it did not rule it out completely, it made it much less likely, but he supposed that was a matter for the court to decide.

[83] In re-examination Professor Swash repeated that this was a very unusual case but stated that that did not cause him any great concern about his overall opinion. The literature on faecal incontinence was largely about neurological diseases and direct injuries: nobody had addressed the problem of the cause of incontinence in people who had no obvious cause for it or done a study of people in whom incontinence had developed following an accident, so that the answer was not proven. In this case the link was so clear and there were the abnormalities on anorectal testing. Normally incontinence came on gradually in the absence of an accident. In people with abnormal bowel habits there was secondary damage to the sphincter mechanism and they became incontinent at first to flatus, to gas, then they got diarrhoea and loose bowel motions "so it's a progressive crescendo over a period of years". In this case the incontinence came on abruptly after the injury and was superimposed on, but not related to, the sensory disturbance that the pursuer had.

[84] Mr Finlay had become the first full-time colorectal surgeon in Scotland in 1987 and held the appointment of Consultant Colorectal Surgeon at Glasgow Royal Infirmary. His curriculum vitae is 7/20 of process. He was undertaking two research projects on the problem of faecal incontinence. He was first asked to comment on certain aspects of the case without seeing or examining the pursuer and produced his first report dated May 2002 (7/14 of process). The summary and conclusion of that report read as follows:

"In conclusion it is my opinion that the pursuer suffered from an abnormality of the anorectum known as obstructed defecation prior to his injury. The exact cause of this condition is unknown to medical science. On full investigation after the accident he has no objective evidence of a neurological deficit apart from a loss of sensation in the rectum. There is no explanation known to me on the basis of the pathophysiology of the anorectum which would explain how he could develop this abnormality due to the accident in the absence of other neurological findings. On the balance of probability I would consider his present symptoms to be due to a combination of pre-existing reduction in sensation in the rectum in combination with features of irritable bowel syndrome."

[85] He was asked later in his evidence to explain what was meant by irritable bowel syndrome. It is worth reproducing his answer in full:

"Irritable bowel syndrome is also a condition poorly understood by medical science. It's a label widely used for patients, but it really means that patients have symptoms from the bowel that medical science doesn't understand. There are, however, some features of the condition which are well recognised. Patients tend to have diarrhoea that's often associated with anxiety. It can be caused by stressful situations and it is an extremely common condition. Of all patients I see with incontinence almost half have irritable bowel syndrome as a major component of their symptoms, some, like Mr Rooney, with an apparently normal muscle structure at the tail-end or the anus. So it's a common condition which causes patients to have diarrhoea and urgency. It's interesting in Mr Rooney's case that these were the cardinal symptoms he had. He said he was only incontinent when he had diarrhoea and urgency seemed to be one of his major symptoms. He had this feeling he needed to go to the loo all the time, which is why he clenched his buttocks, and wasn't incontinent at home he told me because in that situation he could go to the loo. The difficulty with this condition is that patients know they can be overwhelmed by the diarrhoea and urgency, and that in turn raises more anxiety, and that's the very thing that becomes a self-fulfilling prophecy for them because the bowel becomes more active and the symptoms more compelling. And yet many of these features and I felt that, taken together, this loss of sensation possibly due to his straining over a long period of time in conjunction with these features were the principal cause and a more probable cause for his incontinence than to speculate wildly about a putative neurological injury that cannot be identified (sic)."

[86] When he wrote his report he had seen, among other documents, Mr Bartolo's report 6/8 of process in which it was stated, with reference to a test performed, that "the most striking abnormality was that he had significant loss of rectal sensation, with his first sensation being 356 ml instead of the normal 30-50 ml". He explained that that was the only truly abnormal finding in the examination conducted by Mr Bartolo. In the broadest sense that result was indicative of a loss of rectal sensation. On being referred to Professor Swash's report (6/48 of process) he said that he disagreed in scientific terms with the statement "rectal compliance is abnormal" because compliance related to the ratio between volume and pressure (and pressure had not been tested), so all that could be said was that there was reduced sensation. Professor Swash then went on to imply, by saying that compliance was abnormal, that the cause of that was that the rectum did not stretch normally. That was one possible explanation, but there could be other explanations, for example, that the bowel was already wider than normal. It was his experience that when the bowel was unusually stiff patients felt that very quickly: they did not have a long period with no sensation. Professor Swash was speculating, as a putative explanation, that the rectal wall had become stiffened by bleeding in the pelvis and that the pursuer had thereby lost sensation. All that could be taken from Mr Bartolo's test result was that the pursuer did not feel distension of his rectum until an abnormally high quantity of saline had been inserted into the balloon: the result did not offer any explanation as to why that had occurred, and there were several explanations. He did not accept that one possible explanation was unusual stiffness or reduced elasticity of the rectal wall. His view was that there were two possible explanations: absence of sensation, or poor sensation, in the bowel wall or the bowel had become worried and the balloon distension was not appreciated until a higher volume had been instilled. He thought Professor Swash's explanation of bleeding around the bowel wall causing it to become stiff and scarred and damaging its nerve supply so that the patient could no longer feel the distension was an improbable explanation for two reasons: first, there was no evidence that the pursuer had bleeding into his pelvis at the time of the initial injury when he went to Ninewells Hospital, and, secondly, where one did see this, usually in very severe fracture type injuries of the pelvis, the rectum, rather than being distended and wide and not having sensation was quite the opposite in that it shrank and the patient felt the distension more, rather than less, quickly. In his opinion a more probable explanation than that proffered by Professor Swash was that, on the evidence provided, was that pursuer's difficulty with evacuation over a long period of time caused him to develop dilatation of the bowel and it was that, rather than his accident, which caused the abnormal finding. He would have expected the recto-inhibitory reflex to be absent in someone who had no sensation until over 300 mls had been instilled: the absence of the inhibitory reflex and the rectal distension went together.

[87] Mr Finlay's second report dated May 2003 (7/9 of process) was written after he had seen and examined the pursuer. In the section dealing with his clinical examination of the pursuer he stated:

"On clinical examination it is immediately apparent that Mr Rooney suffers from severe anxiety. He is 'crouched and only shuffles along'. He holds his lumbar spine in a state of flexion and takes very limited steps. He attributes this posture to his need to continually clench his buttocks together to avoid leakage.

On further examination he has no evidence of lower limb or buttock muscle wasting and a full range of movement of the lumbar spine. All peripheral reflexes are present including the ano-cutaneous reflex. There is no loss of skin sensation below the waist. His anal skin is also normal. He has normal basal and squeeze pressures in the anal canal on gross clinical examination."

Mr Finlay explained that the pursuer's appearance when he came to see him was most extraordinary: he had developed a most extraordinary posture in that he was hunched over and taking very small steps.

[88] Mr Finlay did not agree with Mr Bartolo on the question of the possibility of neurological damage to the external sphincter. There was no scientific evidence whatsoever that he had such damage, and there were two reasons why he did not: the first was that the nerve supply to that muscle was tested by Mr Bartolo in the form of the pudendal nerve latency test and the second was that whenever there was a nerve injury the muscle atrophied or wasted, and there was no evidence on the ultrasound examination that the external sphincter was wasted or thinned in any way. These two factors excluded neurological damage to the external sphincter as far as medical science understood the pathophysiology. Mr Bartolo's opinion about the possibility of neurological damage to the external sphincter was therefore based on no clinical or scientific finding and speculative. He did not think that the time when the incontinence was first reported by the pursuer was an issue in determining the causative link between the accident and the incontinence because it was well recognised that patients with incontinence often did not present to the doctor for quite some time because of embarrassment, and that was especially true for men. It was not extraordinary that a patient who suffered from incontinence might wait some considerable time before presenting to the doctor, or even admitting that it was happening, so he would not see that as helpful in causation. If as a matter of fact it could be established that incontinence started at a particular time that had a bearing on the issue, depending on how long that period of time was: if it got to months, or indeed years, that would be highly relevant. If the pursuer did not have symptoms for a prolonged period of time it would be less likely that they were related to the fall: we could never be certain about these things, but in general that would be the case. The symptoms were less likely to be related to the accident if they arose after a period of 10 or 11 months. He was against surgery for the pursuer as there was no identifiable abnormality to correct.

[89] In cross-examination Mr Finlay stated that he was aware of his duty to the court as an expert to be independent and accepted that Mr Bartolo was at least equally qualified by experience and expertise to comment on the cause of incontinence in a patient. He conceded that Professor Swash was a very eminent physiologist, that he had written many books and that he had focused on the neurological aspects of the anal area and was a recognised expert who had done more research than he had in neurophysiology and was better placed than he was to provide an opinion on the neurological aspects of the matter. When he wrote his first report he had the pursuer's GP records although he had listed them. He could not explain why he had not listed when the pursuer had first made complaints of incontinence to his GP: the clinical history given in his first report was really a brief overview of what happened to him to set the scene. He accepted that the date of the first complaint of incontinence to the GP should probably have been included: the fact that he had not included that date made it possible that he had overlooked it. He had also not included the pursuer's first attendance at his GP after the accident (1 December 1998) and agreed that could have been included for fullness. He did not particularly feel that the comment by the GP of a mushy stool on that date was particularly relevant as it was a non-specific symptom, so he probably excluded it deliberately. The entry for 29 December 1998 in the GP's records could have been included but was not. That entry supported the view that his incontinence might well not be related to the accident, but he had not thought of that at the time: he was more interested in commenting on what happened to the pursuer because that was the area upon which he was asked to comment. He had not seen Mr Bartolo's manuscript note (7/5 of process, p 10) made on 15 November 1999. The finding in that note "very poor VC, even with buttocks clenching" was an abnormal finding as far as it went. In his later report Mr Bartolo stated that the pursuer did not relax his pelvic floor musculature and that was the abnormality one found in obstructed defecation. In his own report he had not recorded that particular aspect of the examination by Mr Bartolo because there was an important other feature, which was that the pursuer had a normal cough reflex, which indicated involuntary contraction of the muscle. When he examined the pursuer in Glasgow he did not have poor voluntary contraction. He disagreed with Mr Bartolo if the latter thought that poor voluntary contraction, even with buttock clenching, was significant. Patients sometimes did not or could not comply with the test during an unpleasant and embarrassing medical examination when a doctor had a finger in their anus. Poor voluntary contraction during such an examination could be a sign that there was something wrong and it would merit further investigation, which the pursuer had. All the investigations that followed it showed that it was erroneous. He also disagreed with Mr Bartolo that it would be pretty well impossible for someone, while buttock clenching, not to be operating the muscle on a voluntary basis. The muscle of the buttock did not invariably contract with the muscle of the anus as the former was a completely different muscle with a completely different nerve innovation. He had considered Mr Bartolo's note "why no squeeze?" and took the view on balance that because the pursuer's cough reflex was intact the squeeze factor was no longer a consideration. At that time Mr Bartolo was in the midst of the assessment, he had not obtained all the information and come to a considered view on the basis of it. He (Mr Finlay) could not recall whether when he wrote his first report he knew whether the pursuer's position was that he was incontinent within days of the accident. He would want to know that and he found it out later. He could be quite confident on the cause of incontinence without having examined and spoken to the pursuer of what seemed unlikely on the basis of the tests that were provided. The options put forward speculatively by both Mr Bartolo and Professor Swash were possible: he had said what he thought was the most likely cause based on his clinical experience, and it was just a question of which view was the more (sic) probable. It was always helpful to see the patient in the fullness of time and to ask him specific questions which were important. One of the questions he was able to ask the pursuer was whether he was incontinent when he did not have diarrhoea, which he was not, he had said he was incontinent only when he had diarrhoea. All the tests that could have been done for the pursuer had been done. As he put it, "the view I took is that because there was no objective abnormality it was wild speculation to postulate that something was wrong here that we just didn't understand". He was saying that the most probable cause of the pursuer's symptoms was, first, that he did not empty his bowels very well and had not done so for many years, which in itself could cause difficulty with diarrhoea, and, secondly, that the pursuer was tense and anxious, whether because of the accident or because of another cause he did not know. It was a combination of these two features that was causing his symptoms. He was not of the opinion that the pursuer was "at it" or fabricating his symptoms: he was sure the pursuer had compelling symptoms. He was not sure how much the symptoms were really incontinence rather than urgency. When he examined the pursuer his anus did not have any of the features of severe incontinence, such as excoriation and so on of the skin, so he thought it was urgency that was the pursuer's big problem. The pursuer's symptoms were all genuine, but on the day he came to see him he was embellishing them by stooping.

[90] On being referred to 7/5 of process, p 23 Mr Finlay accepted that the document contained the results of a pressure test performed for Mr Bartolo, which he had not seen before, although it must have been included in the bundle with which he had been provided. The results indicated that the pursuer was not generating huge pressures in the rectum and when he got to the maximum tolerated volume his pressure actually fell, which meant that the bowel was not restricted in its expansion. It would be surprising if Mr Bartolo had not taken these results into account in reaching his conclusion, but they did not relate in any way to the external sphincter.

[91] On being referred again to his second report Mr Finlay stated that the clinical history in it came from his interview with the pursuer. He had recorded that the pursuer noticed his bowel symptoms began three days after the fall but increased in severity over the next few days. If someone was not incontinent before a date and unequivocally incontinent afterwards it was likely that the event had something to do with that. He could not say when he would expect material symptoms of incontinence to begin after an injury: it was very variable. The problem really for the pursuer was his diarrhoea: he suspected that if he did not have diarrhoea he would be continent. He stated in his report that whether the pursuer's anxiety was exacerbated by the accident was unclear and that it might be that the accident had exacerbated the underlying tendency to anxiety, which in turn might be the cause of his incontinence. In his opinion that was the most likely reason he was in the situation he was in, in combination with the abnormal sensation in his rectum. In the broadest sense the accident had exacerbated an underlying tendency to anxiety which then caused the pursuer's incontinence. If the accident had caused him to be more anxious and contributed to his diarrhoea it had contributed to his incontinence. He personally did not hold the view that there was some kind of abnormality: he found that so far away in speculation that he thought it was improbable. He had prepared a second supplementary report which had not been lodged but the opinion expressed in it did not waiver from the view he had had all along.

[92] In re-examination Mr Finlay explained that he had many patients who had diarrhoea leading to incontinence and urgency related to anxiety. He could not comment on whether the anxiety in the pursuer was caused by the accident. It was clear that he was an anxious man before the accident and he might have been at risk of responding very badly to a traumatic event like the accident, but he did not wish to comment any more because he was straying outwith his area of expertise. He was certainly not able to speak to the traumatic causes of stress. He certainly saw patients with the symptoms the pursuer had who have not had a definite stressful event. A presentation such as that of the pursuer involving a stressful event other than an accident would be equally possible.

Discussion and conclusion about injury

[93] It seems to me clear from an analysis of the above evidence that certain points are not in doubt. First, the pursuer had a pre-existing long-standing defecatory disorder in the form of a problem with initiating defecation, and sometimes also a problem with loose stools. Secondly, after the accident he had an overnight stay in hospital and on 1 December 1998 he was given a sickness certificate allowing him to be off work until 8 December 1998. Thirdly, following the accident he attended his GP on 1 and 29 December 1998 and 14 April 1999, on which dates he made no complaint of faecal incontinence: it was not until a visit to his GP on 6 October 1999 that he complained of faecal incontinence. Fourthly, it is generally accepted by the medical profession that patients may be reluctant to complain to a doctor of faecal incontinence because of the social stigma attached to it. Fifthly, following his return to work the pursuer worked voluntarily on tours of detached duty in England and also ran in a marathon in February 1999, when he achieved 42^nd place with a time of 41 minutes 17 seconds, a time which was 8 minutes 17 seconds behind the winner. Sixthly, there is no objective evidence of his having suffered any neurological injury to the anorectal area in the accident. Seventhly, he suffers from a loss of rectal sensation and faecal incontinence. Eighthly, he has suffered from anxiety and depression related to his faecal incontinence.

[94] The first matter which I think it is necessary for me to determine is when the pursuer's incontinence began. It does not necessarily follow from the fact that he did not complain of incontinence to his GP until 6 October 1999 that the symptoms did not begin until that time for, as I have said above, the medical profession accepts that patients may be reluctant to complain to a doctor of faecal incontinence. It nevertheless is a fact that the pursuer did not complain of incontinence to any doctor until ten months after the accident, and at no stage did he give to a doctor a history of incontinence beginning soon after the accident. Dr Rutherford, the GP whom he saw on 6 October 1999, said that the pursuer mentioned then two recent episodes of incontinence. There was no reference in the note of the consultation of 6 October 1999 or in Dr Rutherford's subsequent letter to Mr Bartolo of symptoms of incontinence having afflicted the pursuer for a long period of time. Dr Rutherford accepted that the pursuer would have no reason for not saying how long he had suffered from incontinence once he had confided in him that he suffered from incontinence. There is, on the other hand, evidence from the pursuer and his wife (although, as is evident from their accounts, they are not consistent with each other) that his faecal incontinence began soon after the accident. The credibility and reliability of Mrs Rooney were not the subject of attack, and it was pointed out that her evidence was consistent with the pursuer having "a mushy stool", of which he complained to his GP on 1 December 1998. Moreover, the evidence of faeces being found in the toilet of the house does not sit well with what the pursuer told Mr Bartolo on 15 November 1999, namely, that he managed at home but that it was very difficult at work. The impression which Mr Bartolo obtained from the pursuer was that when he was in the house he could get to the toilet and pass stools normally. The only supporting evidence for the pursuer having difficulty at work came from Mr Low, and in my view did not amount to much. He said that he did not notice any immediate change in the pursuer's behaviour after the accident but it then became noticeable that the pursuer was missing in the toilet and there was a bit of banter about it but the pursuer never discussed his difficulties. Had the pursuer experienced significant difficulties at work after the accident by having to spend unusual periods of time in the toilet and also changing duties I would have expected there to have been a body of evidence to that effect from his colleagues. Sheryl Combe said that he was more or less the same when he returned to work after the accident.

[95] I do not accept that the pursuer's symptoms of faecal incontinence began soon after the accident. I find it difficult to understand how he would be able to suffer such distressing symptoms while at the same time continuing to carry out his work, working away from home and running in a marathon. Nor do I accept that he was someone who would be reluctant or hesitant about mentioning faecal incontinence to a doctor. He had suffered from a defecatory disorder for some time and had previously talked to his GP about his bowel movements. He therefore had in my opinion no good reason to feel embarrassed when mentioning faecal incontinence to his GP, this being another form of bowel disorder. If the symptoms were as distressing as he made them out to be from soon after the accident it would not be unreasonable to expect him to seek medical help to alleviate or cure them rather than continue to suffer from them for a period of about ten months. He spoke to his GP about his bowel problems on 1 December 1998 without mentioning faecal incontinence. Dr Wilson's letter of 20 August 1999 to Mr Bartolo (7/8 of process, p 107) mentioned problems with defecation, but not incontinence. The conclusion which I draw from the whole evidence is that the pursuer did not mention faecal incontinence to any doctor until 6 October 1999 because he did not suffer from problems of faecal incontinence until shortly before then.

[96] It is next necessary to consider what effect, if any, that finding has on the opinions expressed by the three consultants. Mr Bartolo's opinion did not appear to turn on when the pursuer first complained of incontinence to his GP and it would therefore appear that he has offered an opinion on causation without taking into account when the incontinence objectively commenced. Professor Swash said that a lengthy delay (such as months) between the accident and the commencement of incontinence greatly reduced the likelihood of any link between them. Mr Finlay said that a lengthy delay diminished the likelihood of a link between the accident and the incontinence. Professor Swash said he had never come across a case such as that of the pursuer either in clinical experience or in the medical literature. I accept the submission for the defender that both Mr Bartolo and Professor Swash (in their own different ways) have theorised an explanation for an injury caused in the accident which they cannot objectively demonstrate from a temporal link and that the absence of any comparable cases is a contra-indication of a link. As Lord Prosser said in Dingley v the Chief Constable, Strathclyde Police 1998 SC 548 at p 604E:

"Plainly, one will more readily conclude that B is caused by A, or probably caused by A, if one can identify, or at least envisage, some kind of mechanism whereby B might be caused by A. Equally, if one simply cannot identify or envisage such a mechanism, the mere fact that on one occasion B happened after A (and perhaps very quickly after A) would not, in the absence of other indications, lead one easily to conclude that B was caused by A. But no one, certainly in this case, suggests that such a single coincidence is to be interpreted as involving a causal relationship. And once one moves from a single coincidence to a number of occasions when B follows (perhaps quickly) upon A, dismissiveness of 'post hoc ergo propter hoc' reasoning seems to me to become less and less appropriate. Indeed, unless and until one can identify or envisage a connecting mechanism, countless conclusion as to causal relationship are reached precisely upon a form of 'post hoc ergo propter hoc' reasoning: if B is observed never to occur except shortly after A, the conclusion may be relatively easy - but if B is observed to occur frequently after A, then even if each occurs sometimes without the other, the frequency with which B occurs after A may nonetheless justify a more or less firm conclusion that A, in certain circumstances, causes B. I do not regard such conclusions as based on false (or indeed simple) logic. The approach is in my opinion inherent not only in conclusions drawn from one's general experience or 'anecdotal evidence'. It is inherent also in much experimental research and also, it seems to me, in epidemiology."

Earlier, at p 604 C, his lordship said:

"If a particular process of reasoning is widely accepted, then I think that may be persuasive for a court. But the fact that a particular view is widely held, without any persuasive explanation as to why it should be so held, and constitute a conclusion, does not appear to me to be a matter to which a court should give significant weight. Rather similarly, the fact that a particular view was or is held by someone of great distinction, whether he is a witness or not, does not seem to me to give any particular weight to his view, if the reasons for his coming to that view are unexplained or unconvincing. As with judicial or other opinions, what carries weight is the reasoning, not the conclusion."

[97] I should mention that in the closing submission for the pursuer I was also referred to the cases of Gardiner v Motherwell Machinery and Scrap Co Ltd 1961 SC (HL) 1, Alexander v Midland bank PLC [2000] ICR 464 and Simmons v British Steel PLC 2004 SC (HL) 94, which all seemed to be to be cases of a different character from the present one and therefore of little assistance.

[98] The issue of causation in this case is clearly a novel one because, having regard to the clinical findings, there are no comparable cases upon which to draw in reaching a conclusion. Mr Bartolo and Professor Swash were, in my view, only theorising: they were not drawing upon any empirical experience. Professor Swash himself described what he was doing as "a speculative exercise". Moreover, Mr Bartolo and Professor Swash had different reasons, as set out above, for making a causative link between the accident and the incontinence. Mr Bartolo thought that there had been a neurological injury, whereas Professor Swash did not. Both Mr Bartolo and Professor Swash were, in effect, doing no more than floating possible explanations for the pursuer's incontinence.

[99] I have therefore reached the view that the pursuer has failed to prove a causative link between the accident and his faecal incontinence. In any event I consider that the evidence of Mr Finlay is to be preferred. I do not think there is any substance in the criticisms made of his first report on behalf of the pursuer relating to matters of the pursuer's medical history which were not mentioned. According to Mr Finlay there were several explanations for the pursuer's loss of rectal sensation and the short answer is that we do not know if there is a link between the pursuer's fall and his incontinence. In the absence of unequivocal evidence of a neurological deficit there is no recognised explanation for a link between the accident and the incontinence. It is at least equally, and perhaps even more, probable that the pursuer's incontinence is in some way linked to his pre-existing problem with defecation. Having considered all the evidence I feel bound to concur with the view of Mr Finlay that we just do not know what is the cause of the pursuer's incontinence.

Damages

[100] Had I been satisfied that liability had been established I would, in light of the view I have taken on causation, awarded damages for the relatively minor and short-lived effects of the fall. Both parties were agreed that in these circumstances the appropriate award for solatium would be £2,000, which is the sum I would have awarded subject to interest, on which matter I would have required to hear submissions.

Decision

[101] For the reasons given above I shall repel the pleas-in-law for the pursuer, sustain the second and fourth pleas-in-law for the defender and grant decree of absolvitor.