GEORGE SMILLIE v. LOTHIAN AND BORDERS POLICE BOARD FOR JUDICIAL REVIEW OF A DECISION OF A MEDICAL REFEREE

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OUTER HOUSE, COURT OF SESSION [2005] CSOH 140
P609/04	OPINION OF LADY PATON in the petition of GEORGE SMILLIE Petitioner; against LOTHIAN AND BORDERS POLICE BOARD Respondent: for Judicial Review of a decision of a medical referee to refuse an appeal by the petitioner in terms of the Police Pensions Regulations 1987 as amended ________________

Petitioner: Dewar, Q.C.; L. M. Henderson, Advocate; Macbeth Currie

Respondent: Swanson, Solicitor-Advocate; Maclay Murray & Spens

28 October 2005

Police injury award: injured knee, but ultimate retirement due to back pain

[1]In January 1981 the petitioner suffered an injury to his left knee while on a training course at the Scottish Police College, Tulliallan. The injury caused recurring pain. On 12 November 1981 Mr McQuillan, Consultant Orthopaedic Surgeon, operated on the knee. The petitioner's leg was encased in plaster and was non-weight-bearing for about six weeks. The petitioner had to use crutches, and subsequently underwent physiotherapy. He continued to suffer problems and had further physiotherapy. In May 1982 his leg was again in plaster.

[2]In about October 1982, the petitioner suffered pain in his back, extending down his right leg. At the time, the pain was thought to be caused by a pulled hamstring, although the subsequent diagnosis was nerve root irritation as a result of a disc prolapse in the lumbar spine, all as described below. In November 1982 the petitioner underwent further surgery to his left knee, followed by a further six weeks in plaster.

[3]The following year, in March 1983, the petitioner suffered back trouble. He consulted Mr McQuillan. He was diagnosed as having a prolapsed disc resulting in sciatica. On 25 July 1983 Mr McQuillan operated on the petitioner's back. The petitioner was discharged on 3 August 1983. He continued to suffer minimal symptoms. He underwent physiotherapy.

[4]Several years later, in October 1989, the petitioner had a recurrence of sciatica. He was referred for physiotherapy. He required lumbar traction. By 14 December 1989 he was noted to have full pain-free flexion and extension.

[5]Years passed. In October 1996, the petitioner experienced more back pain. He was referred to Mr Tom Russell, Consultant Neurosurgeon, who saw him on 18 March 1997. Mr Russell carried out various investigations, including an MRI scan of the lumbar spine. A large right-sided L5/S1 disc prolapse was diagnosed. On 28 May 1997, Mr Russell operated on the petitioner's back.

[6]In January 2000, the petitioner suffered a further episode of pain. His general practitioner referred him to Mr Russell. An MRI scan showed recurrent disc prolapse at L5/S1 level on the right side, with superimposed fibrosis. On 29 June 2000, Mr Russell carried out re-exploration of the right L5/S1 nerve root. The petitioner continued to suffer pain in his back and leg, with some right foot paraesthesia. He was off work. Ultimately, in May 2001, he was retired on grounds of ill health. He applied for a police pension, including an injury award in terms of Regulations A11, A12, A13, and B4 of the Police Pensions Regulations 1987, contending that his back problems were attributable to the knee injury and related treatment. The respondent referred the petitioner to a consultant occupational health physician, Dr D.G. Jones.

[7]Dr Jones examined the petitioner, and issued a certificate of permanent disablement dated 3 May 2001 confirming that the petitioner was suffering from chronic recurrent lumbar back pain secondary to intervertebral disc degeneration, and that he was permanently disabled from performing the ordinary duties of a member of the police force. In that certificate, Dr Jones stated that he considered that the condition from which the petitioner was suffering was not the result of any injury received in the execution of his duty as a member of the police force. Dr Jones gave his reasons in a report dated 8 May 2001.

Appeal to a medical referee

[8]The petitioner appealed against Dr Jones' ruling that his condition was not the result of any injury received in the execution of his duty as a policeman. The medical referee appointed by the Secretary of State to hear the appeal was Mr Peter Scott, Consultant Orthopaedic Surgeon.

[9]In preparation for the appeal, the Police Federation arranged for the petitioner to be examined by Mr Russell, the consultant neurosurgeon who had treated him in 1997 and 2000. Mr Russell examined the petitioner on 16 November 2001, considered the case-notes held in the Department of Clinical Neurosciences, Western General Hospital, Edinburgh, and compiled a report. The report was undated.

[10]The medical referee, Mr Scott, interviewed the petitioner on 10 June 2002. He reviewed the medical records and the report by Mr Russell. Mr Scott then issued a medical certificate dated 26 July 2002 to the effect that the petitioner was permanently disabled from performing the ordinary duties of a member of the police force as a result of chronic back pain, but that his condition was not the result of an injury received in the execution of duty. Mr Scott subsequently gave the reasons for his decision in a report dated 29 July 2002.

[11]As a consequence of the decision, the petitioner was deemed not entitled to a police injury award.

Judicial review of medical referee's decision

[12]The petitioner now challenges the medical referee's ruling. In his petition for judicial review, the petitioner contends that the medical referee erred in law and acted unreasonably in the sense defined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223. The petitioner seeks:

• reduction of the decision of the medical referee;
• declarator that the decision of the medical referee that the petitioner is not disabled as a result of an injury received in the execution of his duty as a police officer is one which no reasonable medical referee could have come to;
• an order requiring the medical referee to reconsider his decision;
• expenses;
• such further order, decree or orders as may seem to the court to be just and reasonable in all the circumstances of the case.

The petitioner's pleas-in-law are in the following terms:

• That the medical referee having erred in law and acted unreasonably, decree of reduction and declarator as craved should be pronounced.
• The said order being unlawful and of no effect, the medical referee should be ordered to reconsider his decision.

The respondent's pleas-in-law are directed to relevancy and specification, mora, and absence of any error in law, unreasonableness, or ultra vires act.

Medical reports lodged for first hearing

[13]The report dated 29 July 2002 by Mr Scott, the medical referee, was lodged as number 6/4 of process. However Mr Russell's report (referred to by the medical referee) was not lodged. That report was eventually tendered as a late production by the petitioner's counsel towards the end of the first hearing. Mrs Swanson very properly did not object to its late lodging. Mr Russell's report became number 6/14 of process. Its content proved important, as set out in paragraphs [39] to [40] below.

Mr Scott's report

[14]In his report dated 29 July 2002, Mr Scott gave reasons for his decision as follows:

"This report is based on an interview with Mr Smillie on 10 June 2002 and a review of the medical records, including a medical report by Mr T. Russell, Consultant Neurosurgeon.

1. HISTORY

1.1This 45 year old police constable states that he was injured in an

accident while training in Tulliallan in January 1981. He was training and playing football, activities which he says were not optional and were part of the training scheme. He developed acute pain over the front of his left knee and apparently attended the local general practitioner because of this at that time. In spite of treatment, including physiotherapy and rehabilitation, he continued to have pain in his left knee and was referred to Mr W McQuillan, Consultant Orthopaedic Surgeon, who examined him on 21 October 1981. He made a diagnosis of 'High Jumper's Knee' which is a condition when the fibres of the tendon leading from the knee cap down to the shin are damaged and inflamed. He carried out an operation on the knee on 12 November 1981 and Mr Smillie was immobilised in a long leg plaster for 6 weeks thereafter. He was noted to have marked wasting of the muscles and was referred for physiotherapy. He rehabilitated and managed to get back to light duties but continued to have problems with his knee and apparently had another period of immobilisation in May 1982. The symptoms persisted and he had a second operation in November 1982 which seemed to improve his symptoms.

1.2While he was getting physiotherapy before this second operation he

began to complain of pain in the back of his right thigh, which was initially thought by the physiotherapist to be due to hamstring injury. This pain persisted and it became apparent that his pain was due to nerve root irritation due to a disc prolapse in his lumbar spine. This was giving irritation and pressure to the first sacral nerve in the right leg. As his symptoms persisted he eventually had an operation to explore the disc and decompress the nerve and this was carried out in July 1983. He had a good result following this and was essentially symptom free until October 1996 when he had a further recurrence of pain in the same pattern. Investigations revealed a recurrence of the disc prolapse in the same level and the second operation was carried out by Mr Russell on 28 May [1997].

1.3The second operation again produce a significant improvement in his

symptoms and he managed to get back to work. Unfortunately he had a third recurrence, again at the same level with pain on 13 January 2000 and had a third operation in June 2000. This produced some improvement but has left him with residual symptoms which are sufficiently severe to preclude him from working.

2.MEDICAL RECORDS

2.1I have reviewed the medical records which include a number of

records from Mr McQuillan relating to the management both of Mr Smillie's knee injury and also to his initial spinal operation. There is also a letter from Dr Ian Johnston, Mr Smillie's general practitioner, dated 12 April 2000. In that letter Dr Johnston states 'I can confirm that up until this date (November 1981), George Smillie had no problems with his back'.

2.2Mr Russell in his medical report dated 16 November 2001 comments

that 'It is my opinion that it would be very difficult from a medical point of view to hold the position that an incident in mid 1981 caused the development of low back pain and the beginning of right leg pain in October 1982'. He then goes on to argue that the abnormal walking pattern produced by Mr Smillie wearing casts would have produced an extra strain to the lumbar spine and an abnormal movement of the spine. He argues that it is entirely possible that this might have produced damage to the lumbar disc. His eventual conclusion is that 'As a result of the repeated immobilisations Mr Smillie is likely to have damaged one or more of his lumbar discs and I think that his present condition arises [from] these repeated episodes (sic) of immobilisation'.

2.3Mr Smillie was known to be a 'fitness fanatic' and this is recorded in

Mr McQuillan's letter of 21 October 1981.

3.OPINION

3.1The injury to Mr Smillie's left knee in January 1981 can, I think, be

classified as an injury on duty as the activities which he was undertaking were an integral part of the training programme and as such were not optional and were part of his duties. The subsequent problems with his knee can therefore be attributable to an injury on duty.

3.2The disc damage which led to the first operation on his back in July

1983 damaged the disc, rendering it susceptible to further injury and prolapse and the second and third disc operations and the associated pain and absence from work are related to the original damage which occurred in 1982. Had he not had the original damage then the two subsequent prolapses would, on the balance of probabilities, not have occurred.

3.3The altered gait pattern and physical function which Mr Smillie would

have had to adopt during the period following the injury in 1981, including the periods of immobilisation of his left leg in plaster and the use of crutches, would have produced an altered pattern of mechanical strain to his lumbar spine. The level of such mechanical strains would, however, not in my opinion be of sufficient magnitude to have damaged a normal disc. He would inevitably have had to have asymptomatic pre-existing degenerative changes in a disc in order for these sort of forces to have produced a disc prolapse.

3.4The time interval from the original injury in 1981 until the eventual

presentation of symptoms in October 1982, even accepting the further period of immobilisation and symptoms in his left leg in May 1982, is in my opinion too long to link the two.

3.5It is my opinion that Mr Smillie had pre-existing asymptomatic

degenerative changes in his disc and would have been likely to have developed disc damage with prolapse and sciatica even if he had not sustained the injuries to his left knee. As an individual who was keen on exercise he would have been likely to have carried out activities which would have produced as great, if not greater strains to the lumbar spine and therefore on the balance of probabilities would have produced a disc prolapse.

3.6It is my opinion that his present permanent disability is not related to

an injury received in the execution of duty."

Mr Russell's report

[15]Although Mr Russell's report was not available to the court until late in the first hearing, it is convenient to set out its content at this stage:

"HISTORY AS RELATED BY MR SMILLIE

In 1981 Mr Smillie was training in the Police College at Tulliallan. Apparently he sustained a left knee injury during this training and thereafter was given physiotherapy. However he was eventually seen by Mr McQuillan, Consultant Orthopaedic Surgeon and in November [1981] had an operation on his left knee. After this he spent 6 weeks in a full leg plaster and was then gradually [mobilised]. He then had physiotherapy and went back to work for 1-2 months on light duties. ... However things did not settle and he was re-immobilised for another 6 weeks.

Mr Smillie advised me that in or about October 1982 he had some back pain going down the back of his right leg but he thought this was just a 'hamstring pull'. In November 1982 he had a second operation on his left knee and again was in plaster for approximately 6 weeks.

In March 1983 he again saw Mr McQuillan who apparently diagnosed a prolapsed disc at this consultation and in June 1983 he had his first back operation by Mr McQuillan in the Princess Margaret Rose Hospital, Edinburgh.

His right leg pain settled for some time after that but he had recurrence in 1996/1997. For this recurrence his general practitioner referred him to me and I saw him on 18 March 1997. I considered then that his clinical problem was right S1 root problem and the MRI scan of his lumbar spine confirmed that, since it demonstrated a large right sided L5/S1 disc prolapse. Consequently on 28 May 1997 Mr Smillie underwent a right L5/S1 discectomy (his second at this level). On review in my clinic in July 1997 Mr Smillie was pleased with the results of the operation stating that his leg pain had completely subsided although he did have some numbness in the outer border of his right leg. Power was good although there was some reduced sensation in the right S1 distribution and an absent right ankle reflex. Apparently Mr Smillie thereafter returned to work. His general practitioner Dr L F Russell (no relation) again referred him to me in January 2000. Again his problem was of right leg pain of sudden onset and an MRI scan requested by his general practitioner showed recurrent disc prolapse at L5/S1 on the right with superimposed fibrosis. I saw Mr Smillie on 25 April 2000 and explained this to him and explained the very high risks of a third operation at that level. He underwent re-exploration of the right L5/S1 nerve root at the end of June and seemed to recover well from this. He was reviewed by me personally on 26 September 2000 and he considered that he had made a very good recovery although he still had some niggling pains in the right leg as well as right foot paraesthesia. He was discharged from my care at that point.

PRESENT CONDITION AS DESCRIBED BY MR SMILLIE

At present Mr Smillie complains of:

1.Numbness in his right leg after he has been sitting for a short time. He

said this is associated with some pins and needles and only comes on after he has been sitting.

2.Some shaking in the right calf.

3.Cramping in the right leg which is usually in the calf but very

occasionally in the hamstrings.

At present Mr Smillie manages with these problems and continues to walk and play golf.

At present Mr Smillie is not consulting anyone for any of these problems.

DRUGS:Nil

ALLERGY:Nil known

TOBACCO:Never

ALCOHOL:A couple of glasses of wine every evening

EXAMINATION

On examination Mr Smillie was fully orientated in time, place and person and fully aware of the purpose of the consultation. General examination demonstrated a posterior midline scar consistent with his known lumbar surgical procedures.

Examination of Mr Smillie's central nervous system in terms of his cranial nerves did not reveal any focal neurological deficit in his cranial nerves although the functions of smell, hearing and taste were not formally tested. Mr Smillie had no complaints related to these 3 functions and could certainly hear a normal conversation at 6-8 feet. There was no papilloedema upon direct fundoscopy.

Examination of Mr Smillie's peripheral nervous system in terms of his upper limbs did not reveal any focal neurological deficit in terms of power, sensation, muscle tone or tendon jerks and there was no evidence of muscle wasting.

Examination of Mr Smillie's peripheral nervous system in terms of his lower limbs revealed a straight leg raising on the left of 75 degrees and on the right 40 degrees producing leg pain; dorsi flexion of his right ankle then produced thigh pain. Sensory testing showed that there was decreased sensation on the lateral border of the right foot but otherwise sensation was intact. There was no right ankle jerk although the left ankle jerk was normal and both knee jerks were present. Testing for abnormal illness behaviour revealed that his straight leg raising was consistent as described above and both pseudo rotation and axial compression tests were consistently negative.

OPINION

From the information available to me, it is my opinion that Mr Smillie developed a prolapsed lumbar disc in or around October 1982. Mr Smillie is quite clear that this was the first occurrence of low back pain he had ever had and the pain down the right thigh was quite different from the problems he had with his left knee.

Unfortunately Mr Smillie falls into a small group of people in whom one operation to remove a disc is not sufficient. It should be understood that excision of a lumbar disc is not total excision for very sound technical reasons. The piece of disc left behind can thereafter fragment and a re-prolapse of the same disc usually on the same side can occur. Unfortunately this has occurred on 2 further occasions to Mr Smillie and it is my opinion that the right leg numbness when he has been sitting and the pins and needles on the same occasions along with the right leg cramping is a direct result of a combination of 3 disc prolapses and 3 operations.

It is also my opinion that Mr Smillie's present complaints are unlikely on the balance of probability to improve in the future.

Turning to the question of whether Mr Smillie's disc problems in the past and his present condition are related to injury in the course of his training at Tulliallan, it is very difficult for me to formulate an opinion concerning this. There is little doubt that some time in the first half of 1981 Mr Smillie injured his knee and had his first left knee operation in November 1981. It is also clear from what Mr Smillie says that his back pain and the beginnings of his right leg pain did not begin until October 1982. I must assume therefore that since he was only on light duties when he returned to work between his first knee operation in November 1981 and his second knee operation in November 1982, that the injury in question happened not between these 2 operations but prior to the first operation. If this reasoning is correct then there would have to be a time span of at least one year between the injury and the development of the low back pain and beginning of right leg pain in October 1982. It is very difficult under any circumstances to relate the onset of symptoms to an incident which happened in excess of one year prior to the onset of symptoms. It is my opinion that it would be very difficult from a medical point of view to hold the position that an incident in mid 1981 caused the development of low back pain and the beginning of right leg pain in October 1982.

However there is no doubt that as a result of the surgery in November 1981 Mr Smillie had to wear a full leg plaster, that is from ankle to thigh for some 6 weeks and then a slightly shortened plaster in May 1982 because of recurrence of his left knee problem. It is certainly the case that, whilst wearing plasters of this size when the knee is unable to bend, there is extra strain on the lumbar spine and abnormal movement of the lumbar spine to accommodate the non-movement of the knee. It is entirely possible that, during this time period when abnormal locomotion and thereby abnormal movements of the lumbar spine had to be undertaken by Mr Smillie, damage to a lumbar disc was caused. Even when Mr Smillie was not immobilised because of his left knee problem, he did have pain in his left knee and this [per se] may well have caused him to walk in an unusual fashion and therefore put unusual strain on his lumbar spine. It is my opinion therefore that as a result of the repeated immobilisations Mr Smillie is likely to have damaged one or more of his lumbar discs and I think that his present condition arises from these repeated periods of immobilisation as I have described above.

It is therefore my opinion that Mr Smillie's present problems with his right leg [arise] indirectly from the accident in 1981 in Tulliallan College."

Submissions

[16]What follows is an outline of the submissions, not necessarily in the order in which they were made.

Mora

Submissions on behalf of the respondent

[17]Mrs Swanson, solicitor-advocate, submitted that the petitioner was barred by his delay in commencing judicial review proceedings. It was accepted that delay in itself was not enough: the respondent also had to demonstrate a material alteration of position or material prejudice on the part of the respondent, or what amounted to acquiescence on the part of the petitioner (which was probably linked to the question of alteration of position on the part of the respondent). The respondent's principal argument was that it would be detrimental to good administration to allow the petitioner to proceed. Certainty of disposal was an important element in good administration. The respondent did not have to demonstrate any specific (rather than general) harm, or any specific operational effect such as a restriction in recruitment because of enforced re-allocation of resources. It was sufficient to demonstrate something which was disruptive of good administration.

[18]When exercising its discretion, the court should bear in mind that a delay of 22 months had occurred between the medical referee's decision and the service of the petition on the respondent in May 2004. The petitioner had been silent during those months. The respondent was entitled to rely on that silence as indicative of acquiescence. The petitioner's averments seeking to justify the 22 month delay by reference to investigations, consultations, and recovery of medical records, were inadequate. The averments clearly demonstrated that the petitioner had access to legal advice by August 2002: yet nothing was intimated to the respondent. If the present petition for judicial review were to succeed, the floodgates might be opened in that other old claims might be revisited. It was not good enough for the petitioner to say that because pension payments were not "set in stone", the respondent should be open to challenge. The only cut-off for such claims other than mora was the long negative prescription.

[19]In the course of the respondent's submissions, reference was made to O'Reilly v Mackman [1983] 2 A.C. 237, at page 280; King v East Ayrshire Council, 1998 S.C. 182, at pages 187 to 189, and 196C-F; Uprichard v Fife Council, 2000 S.C.L.R. 949, at pages 955 to 959; Devine v McPherson, 2002 S.L.T. 213, paragraphs [14] to [16] and [22] to [26]; Hanlon v Traffic Commissioner, 1988 S.L.T. 802, at pages 803 to 805; Clyde and Edwards, Judicial Review, paragraph 13.24; Perfect Swivel Ltd. v City of Dundee District Licensing Board (No.2), 1993 S.L.T. 112; Carlton v Glasgow Caledonian University, 1994 S.L.T. 549; "Mora and Judicial Review", Neil Collar, Solicitor, 1992 S.L.T. (News) 309 and 335; Atherton v Strathclyde R. C., 1995 S.L.T. 557 at page 558E to 559C; R. v Dairy Produce Quota Tribunal, ex parte Caswell [1990] 2 A.C. 738, at page 748B to 750; McKinnon, petitioner, 16 October 2002, Lord Johnston (unreported); Kwik Save Stores Limited v Secretary of State for Scotland, 1998 S.L.T. 193, at pages 196G to 197A; Reside v North Ayrshire Council, 2001 S.L.T. 6, paragraphs [12] to [15].

[20]The respondent's position on mora could be summarised as follows: (i) No cogent reason had been given for the unreasonable delay. Excuses about obtaining legal advice and recovering medical records were unconvincing: cf. Kwik Save Stores Limited, cit. sup. (ii) The respondent was entitled to infer acquiescence from the petitioner's silence during 2002 to 2004, particularly as he had access to legal advice: King, Hanlon, Uprichard, and Devine, cit. sup. (iii) The respondent would be prejudiced if the petition were to be successful, in that there would be detriment to good administration. The respondent did not require to show any specific harm flowing from the delay: Kwik Save Stores Limited, cit. sup. Detriment to good administration was a broad concept, covering a variety of situations: Devine, Atherton, and McKinnon, cit. sup. The court was invited to sustain the respondent's third plea-in-law, and to dismiss the petition.

Submissions on behalf of the petitioner

[21]Mr Dewar Q.C. invited the court to repel the plea relating to mora. Each case depended on its facts. The granting of the present petition would not open floodgates: neither the petitioner nor the respondent were aware of any other similar cases awaiting decision. The case of McKinnon, petitioner, cit. sup. should be treated with some caution, as there had been little citation of authority; the delay in that case totalled about five years; and there was no explanation why such a delay had occurred. By contrast, in the present case, the delay was less than two years. A full explanation had been given. A medical report had been obtained from an American expert, Dr Sybert. That report was supportive of the petitioner's case. Medical records had been recovered. All steps had been taken to enable proper advice relating to judicial review to be given to the petitioner.

[22]It was accepted that there had been a silence. However that was of little effect unless there had been either an alteration of position, or prejudice, as a result. Significantly for the exercise of the court's discretion, neither had been identified in the present case. No impact on budgeting for police operational matters had been demonstrated. Moreover in the context of budgeting for police pensions, it was impossible to predict matters with any certainty. A mis-match was inherent in the system. The budget would be able to accommodate whatever outcome emerged from the present judicial review.

[23]The authorities cited in relation to change of position and acquiescence were materially different on their facts from the present case. If the present petition were granted, the only outcome would be that the petitioner would be paid a lump sum and an annual payment out of a budget which could accommodate those payments. In the present case, there had been no unexplained, unreasonable delay; no prejudice demonstrated; and no disruption of administration. The court was invited to repel the respondent's third plea-in-law directed to mora.

The decision of the medical referee

[24]The majority of the submissions noted below were presented prior to the lodging of Mr Russell's report. Once the report was lodged, it became clear that Mr Russell (unlike Mr Scott) did not mention the possibility of a pre-existing asymptomatic degenerative condition. Equally, it became clear that Mr Russell had specifically considered the lapse of time between the initial injury to the left knee in January 1981 and the emergence of problems with the back and right leg in October 1982, and had concluded that the time interval was not so great as to exclude a causal link between the two events. That specific conclusion was not referred to in Mr Scott's report.

Submissions on behalf of the petitioner

[25]Mr Dewar Q.C. submitted that the medical referee had misdirected himself in law. He had quoted a passage from Mr Russell's report disclosing a causal link between the left knee injury (with related treatment including immobilisation of the leg in plaster and altered gait) and the emergence of problems with the back and right leg. That passage was in the following terms:

"As a result of the repeated immobilisations, Mr Smillie is likely to have damaged one or more of his lumbar discs and I think that his present condition arises from these repeated episodes of immobilisation."

Despite quoting that passage, Mr Scott appeared to focus (in paragraphs 3.3 to 3.5 of his report) on a pre-existing asymptomatic degenerative condition of the spine; to indicate that the time-period between the left knee injury in January 1981 and the emergence of back and right leg problems in October 1982 was "too long to link the two"; and finally to point out that as the petitioner regularly exercised, and had a pre-existing degenerative condition, he "would have been likely to have developed disc damage with prolapse and sciatica even if he had not sustained the injuries to his left knee ...". The medical referee had misdirected himself. A pre-existing condition or vulnerability did not preclude a police injury award on the basis that an injury suffered in the course of duty triggered symptoms of a previously symptom-free condition, rendering the officer permanently unable to perform his duties.

[26]In support of his submissions, senior counsel referred to Garvin v Police Authority for City of London [1944] 1 K.B. 358, at pages 361 to 362; Police Authority for Huddersfield v Watson [1947] 1 K.B. 842, Lord Goddard C. J. at page 845; R. v Fagin and Travers, ex parte Mountstephen, 26 April 1996, CO/92/95; R. v Kellam, ex parte South Wales Police Authority [2000] I.C.R. 632, Richards J. at pages 640 to 641 and 644, particularly propositions (4) to (7); R. (Stunt) v Mallett [2001] I.C.R. 989, Simon Brown L.J.; Lothian and Borders Police Board v MacDonald, 14 October 2004 (Lord Reed, unreported) at paragraphs [78] and [94]; and Lothian and Borders Police Board v Ward, 2004 S.L.T. 215, at pages 217J to 218D.

[27]Senior counsel summarised the petitioner's position as follows: (1) A causal connection had been identified in the medical referee's report. That connection was sufficiently substantial to qualify in terms of Kellam and MacDonald, cit. sup. (2) A predisposition or vulnerability did not preclude a finding favourable to the petitioner: Fagin, cit. sup. (3) The medical referee had introduced an irrelevant consideration when reaching his conclusion, namely the consideration that the petitioner might in any event have suffered a prolapsed disc. (4) The medical referee had therefore misdirected himself in law.

[28]Senior counsel invited the court to reduce the referee's decision, and to remit the matter to a different referee who had no prior knowledge of the case.

Submissions on behalf of the respondent

[29]Mrs Swanson, solicitor-advocate, submitted that the petitioner was not entitled to an enhanced pension payment. His permanent disability had not been caused by the knee injury. The question in issue was the causal connection between the back pain and the execution of duty as a constable. The proper question was whether the petitioner's chronic back pain was directly causally connected with his service as a police officer. The medical referee's task was to decide whether events experienced in the execution of duty as a constable had made a material contribution to the disablement: cf. Fagin cit. sup. Brooke J. at page 3. There had to be a substantial causal connection: cf. Kellam, cit. sup., at pages 641 and 644 to 645; Fagin, cit. sup. at pages 16 to 22. The referee had come to the correct conclusion when he pointed out that the petitioner "would have been likely to have developed disc damage with prolapse and sciatica even if he had not sustained the injuries to his left knee". No issue was taken with the proposition that the petitioner's claim could not be ruled out because he had a predisposition to a certain illness or condition. The issue was: what had the duties of the job done in relation to that predisposition or pre-existing condition. Reference was made to Lothian and Borders Police Board v MacDonald, cit. sup. The court should sustain the respondent's fourth and fifth pleas-in-law, and dismiss the petition.

Reply by counsel for the petitioner, and late lodging of medical reports

[30]Towards the end of the first hearing, senior counsel for the petitioner replied to the respondent's submissions relating to the merits of the petition. He also tendered two further medical reports for the court's consideration, namely the full report by Mr Russell (parts of which had been referred to by the medical referee), and a report by the American expert Dr Sypert (which had been obtained after the appeal to the medical referee, and accordingly had not been seen by the referee).

[31]Senior counsel for the petitioner confirmed that, in preparation for the petitioner's appeal to the medical referee, the Police Federation had arranged for the petitioner to be examined by Mr Russell. The resultant report had been submitted to the medical referee. Counsel drew attention to the fact that Mr Russell did not mention any pre-existing asymptomatic degenerative condition of the spine. More importantly, however, Mr Russell dealt with the passage of time between the left knee injury in January 1981, and the emergence of problems with the back and right leg in October 1982. By contrast the medical referee's report focused on a pre-existing degenerative condition, and did not mention those parts of Mr Russell's report which dealt with the passage of time between January 1981 and October 1982. Counsel adhered to his previous submissions, but in addition submitted that there was a lack of clear reasoning in the referee's report relating to the effect of the passage of time between January 1981 and October 1982 upon a possible causal link between the left knee injury and the problems with the back and right leg, particularly bearing in mind the fact that Mr Russell, a treating surgeon, had considered that the time lapse did not preclude a causal connection.

Final reply by counsel for the respondent

[32]Mrs Swanson submitted that Mr Russell had addressed only the question whether abnormal gait and immobilisation could cause lumbar disc damage. He had not dealt with the question of a pre-existing asymptomatic degenerative condition. By contrast, Mr Scott, the medical referee, had considered the question of a pre-existing condition. In the circumstances, it was perhaps not surprising that Mr Russell and Mr Scott did not agree. It was unfortunate that Mr Scott had expressly referred only to parts of Mr Russell's report, but it could not be assumed that he had not considered the whole of that report. While it was difficult to understand why Mr Scott had not mentioned Mr Russell's views on the question of the effect of the lapse of time on any possible causal connection between the left knee injury and the problems with the back and right leg, it could not be said that Mr Scott had misdirected himself. The court was invited to rely upon paragraphs 3.3 and 3.4 of Mr Scott's report, and to sustain the respondent's argument.

Decision

Mora

[33]I am not persuaded that the respondent's plea of mora should be sustained. As Lord Prosser observed in Hanlon v Traffic Commissioner, cit. sup., at page 805E:

"The length of any delay before implications of acquiescence arise will be almost infinitely variable depending on circumstances."

In the particular circumstances of this case, I accept that it was reasonable for the petitioner to have further medical and legal investigations carried out on his behalf before intimating and commencing judicial review proceedings. Investigations of that nature can take time. I do not regard the silence during those investigations as amounting to acquiescence such that the petitioner is barred from raising the present proceedings. On the contrary, I consider that the chronology of events averred in the petition sufficiently explains the delay "in a manner inconsistent with acquiescence": cf. dicta of Lord Eassie at page 216L of Devine v McPherson, cit. sup. Furthermore, it was not disputed that pension payments cannot be predicted with certainty. Pension administration by definition provides for the unknown and the unexpected. If the petitioner were to be successful in his judicial review and in any further appeal to a medical referee, the respondent would have to take steps to arrange for additional payments to be made to the petitioner. In the context of sophisticated and well-established pension fund arrangements supporting many payments to many individuals, I am unable to identify any material change in position or any material prejudice or any detriment to good administration such as was referred to in the authorities cited on behalf of the respondent. The facts and circumstances of the cases cited where the plea of mora was upheld were very different from the facts and circumstances in the present case.

[34]Accordingly I shall repel the respondent's third plea-in-law.

The decision of the medical referee

[35]Regulation A13 of the Police Pensions Regulations 1987 provides inter alia:

"For the purposes of these Regulations disablement ...shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement ..."

As was pointed out by Brooke J. in Fagin, cit. sup. at page 21, it is a question of fact whether any injury caused or contributed to the permanent disablement. Brooke J. (quoting from Macpherson J. in R. v Dr J. Caldbeck Meenan, 22 July 1994, unreported) further observed that, when assessing a doctor's conclusion on causation:

"What the court must do is look at the conclusion of the [doctor] to see if [he] did reach [that] conclusion and reach it in a logical way ..."

[36]Furthermore, the court must carry out that exercise against the background of the guidance contained in Wordie Property Co. Ltd. v Secretary of State for Scotland, 1984 S.L.T. 345, and ascertain whether, when assessing causation, the medical referee "has taken into account irrelevant considerations, or has failed to take account of relevant and material considerations which ought to have been taken into account". In addition, the court must check whether the reasons given by the medical referee are sufficiently clear, as explained by Lord President Emslie at page 348:

"... [the decision-maker] must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to material considerations which were taken into account in reaching it ..."

[37]In the present case, the medical referee quotes excerpts from the report by Mr Russell, the neurosurgeon who both treated the petitioner and examined him for the purposes of the appeal. In paragraph 2.2 of Mr Scott's report, under the heading "Medical Records", he quotes the following passage from Mr Russell's report:

"As a result of the repeated immobilisations [in leg plaster] Mr Smillie is likely to have damaged one or more of his lumbar discs and I think that his present condition arises from these repeated episodes of immobilisation."

In paragraph 3.3, under the heading "Opinion", the medical referee points out that the periods of immobilisation would not have damaged a normal disc. He accordingly concludes that the petitioner must have had an asymptomatic pre-existing degenerative condition of the spine. In paragraph 3.4, the medical referee gives his opinion that the original knee injury in 1981 was not causally linked to the back problems emerging in October 1982, because -

" ... the time interval from the original injury in 1981 until the eventual presentation of symptoms in October 1982, even accepting the further period of immobilisation and symptoms in his left leg in May 1982, is in my opinion too long to link the two [italics added]".

[38]Accordingly, ex facie the report, the medical referee took into account Mr Russell's view quoted in paragraph [37] above, together with other information and factors including the passage of time between January 1981 and October 1982, and ultimately concluded that the time interval was too long to permit any causal link between the knee injury and the back problems.

[39]However Mr Russell's report, lodged as a production for the first time towards the end of the first hearing and quoted in paragraph [15] above, reveals that Mr Russell expressly considered the long time interval and concluded that it did not prevent a causal link between the injury to the left knee (with ensuing treatment) and the problems with the back and right leg. It will be seen therefore that Mr Russell's view about the time interval, and his ultimate opinion as to whether the petitioner's disablement was "a result of an injury received ... in the execution of [the petitioner's] duty [as a constable]", were diametrically opposed to the medical referee's. Yet in his report dated 29 July 2002, the medical referee did not reveal the true nature and extent of Mr Russell's views, nor explain why he (Mr Scott) reached a different view.

[40]In such circumstances, it is not clear whether the medical referee took into account Mr Russell's views about the time interval and its effect on causation; and if so, why he reached a different conclusion. The views of the neurosurgeon who examined and treated the petitioner might be thought to be entitled to considerable weight. In the result, the court is left in doubt as to whether the medical referee left out of account a relevant and material consideration which ought to have been taken into account (Wordie Property Co. Ltd. cit. sup.). In any event, the reasons given by the medical referee are in my view insufficiently clear, as they do not fully explain why Mr Russell's views on timing and causation were rejected (Wordie cit. sup.) In those circumstances I am satisfied that the decision of the medical referee must be reduced, and the matter remitted to a different medical referee who will be able to assess matters afresh.

Conclusion

[41]I sustain the petitioner's first plea-in-law to the extent that Mr Scott's decision contained in the medical certificate dated 26 July 2002 is reduced.

[42]I make no declarator in relation to the reasonableness of Mr Scott's decision, as the matter is now one for the new medical referee. I add obiter that both Mr Dewar Q.C. and Mrs Swanson were in my view correct in submitting that the existence of a pre-existing asymptomatic degenerative condition of the spine would not preclude a finding that an injury or event (arising in the course of performing the duties of a police officer) caused or contributed to the emergence of symptoms of the previously asymptomatic condition, resulting in the officer becoming permanently disabled from performing his duties.

[43]I shall remit the case to a new medical referee who will be able to view matters afresh, including any relevant material submitted to him (such as the report obtained from Dr Sypert, or any medical records or X-rays which might assist).

[44]I reserve the expenses of the first hearing to enable parties to address me on that matter.