JAMES McNULTY v. MARSHALLS FOOD GROUP LTD
| | OPINION OF LORD MACFADYEN in the cause JAMES McNULTY Pursuer; against MARSHALLS FOOD GROUP LTD Defenders: ________________ |
23 October 1998
Introduction
On 15 March 1995 the pursuer was working in the course of his employment with the defenders as a process operator at their factory premises at Farm Road, Cambuslang. He was unloading pallets of boxes of chickens from a lorry at the Brine Room loading bay there. For that purpose he was using a manual pallet truck. The forks of the truck were inserted into a pallet, then raised. The truck was then pulled along the platform of the lorry to the loading bay. Attached to the loading bay there was a hinged metal plate which formed a bridge between the loading bay and the lorry platform. The pursuer had reached the stage of unloading the last pallet from the lorry. As he was manoeuvring the pallet truck from the lorry onto the loading bay, it stuck, and came to a sudden halt. Part of the load of boxes, despite being partly bound in a plastic wrapper, shot off the pallet truck towards the pursuer. Although the pursuer, seeing what was happening, had turned to run out of range of the projected boxes, he was stuck by one or more of them, and fell. In this action he seeks an award of damages in respect of the loss, injury and damage which he has suffered as a result of that accident. It is unnecessary to examine in more detail how the accident came to happen, because the defenders admit liability to make reparation to the pursuer for such loss, injury and damage. The proof which I heard was concerned solely with the identification of the injuries suffered by the pursuer in the accident and quantification of the resultant loss.
The Nature of the Pursuer's Injuries - Lumbar Disc Prolapse
The major issue in the case is whether the main disabling condition from which the pursuer was subsequently diagnosed as suffering, namely a prolapse of the intervertebral disc at L5/S1 level, was caused by the accident. I shall discuss the competing views expressed on that issue by the four consultant orthopaedic surgeons who gave evidence in due course, but it became clear in the course of their evidence that much would turn on whether and, if so, to what extent the pursuer had suffered from symptoms in his lower back between the date of the accident and the end of October 1995. It is necessary, therefore, to examine the evidence about the pursuer's symptoms and complaints from time to time during that period with some care.
According to the pursuer's own evidence, which was the only direct evidence led about the way in which the accident happened, he was walking backwards facing the pallet truck, holding its handle at about chest height. He was using the handle not to pull the truck, but to control the momentum imparted to it by the slope of the lorry's platform, and also to steer it. The boxes were piled on the pallet some eight or ten high, so that the load was about six feet in height. Each box contained six to eight large chickens, and was accordingly heavy. When the truck stuck, the upper six to eight layers of boxes flew off towards the pursuer. His room for manoeuvre was limited inter alia by a stairway going down to one side of the loading bay. To get out of the way of the boxes, therefore, the pursuer turned round and attempted to run out of the way. He was, however, struck on the back below the left side of his rib cage and on the back of his left leg just above the knee. He does not know whether one box or more struck him. He fell to the floor of the loading bay. He felt a sharp pain in the back, and his neck and shoulder were quite painful. In the immediate aftermath he did not feel well. He was shaking, and experiencing hot and cold flushes. The neck pain and the shaking were the dominant features of what he felt. In cross examination, the pursuer said that the events of the accident were "more or less a blur". He felt pain in his left leg and below his rib cage on the left side. He knows he fell, and remembers being on one knee trying to pick up the boxes. Nothing struck him on the back of his head or his neck.
Shortly after the accident, which happened between 11.30 p.m. and midnight, the pursuer was attended by a first aider, who applied pain relieving spray. The pursuer's evidence was that it was applied to his neck, and below his rib cage on the left side. The first aider did not give evidence, but his or her records contain entries relating to the pursuer timed at 12.10 a.m. and 2.00 a.m., referring to "backache" and the application of "P[ain] R[elieving] Spray". The pursuer had no recollection of a second application of spray, and thought that he had gone home by 2.00 a.m. As Mr Mann, one of the defenders' medical witnesses, pointed out, those references to "backache" are inspecific as to the part of the back affected.
Mrs McNulty gave evidence about being wakened by the pursuer's unexpected return home, and said that he was shaking and holding the back of his neck. The next day, he was complaining of his neck being sore, and arrangements were made for his brother to drive him to hospital.
When the pursuer attended at the Accident and Emergency Department of Stobhill Hospital on 16 March 1995 at 5.40 p.m., he was seen by Dr Samuel Miller, who is primarily a consultant radiologist at Hairmyres Hospital, but who undertook sessions in the A & E Department at Stobhill in order to maintain his clinical skills. He was thus a more experienced doctor than most A & E house officers. His notes record the pursuer as having suffered direct trauma to the left occiput and left side of neck. That is at variance with the pursuer's evidence, in respect that the pursuer denied stating that he had been struck on the head and neck. Dr Miller recorded the pursuer as complaining of a diminished range of movement in the cervical spine and paraesthesia and pain radiating over the left side of the neck and shoulder. On examination he found no neurological deficit, a diminished range of movement in the cervical spine, and a full range of movement in the left shoulder. He had the cervical spine x-rayed, and detected a diminished disc space at the C5/6 level (although that was not reported by the radiologist Dr Semple, who mentioned slight reversal of the normal curvature, and no malalignment or fracture). Dr Miller stated in evidence that if there had been signs or complaint of a back injury, he would have recorded it. In that respect his evidence was not contradictory of the pursuer, who said that at that stage the neck and shoulder pain was very severe, and was taking precedence over everything else. He thought the neck injury was the real problem. There was also a dull ache or numbness in his back, but he thought it would go away with painkillers. The pursuer was given a cervical collar and analgesics.
The pursuer first attended his general practitioner on 22 March, a week after the accident. At that stage, the record made by the doctor was in the following terms:
"Wearing a collar. Accident at work 1/52 ago. Pallet fell & hit his neck."
Dr Burton, having begun his evidence with an account of seeing 30 or 40 patients a day, allowing on average 71/2 minutes for each appointment, could say no more than that that entry was presumably what the pursuer told him. On the same day the pursuer also saw Dr Bruce, the defenders' works doctor. His notes record the accident in these terms:
"Struck on back by load - staggered forward - felt pain at back",
and go on to record the pursuer as complaining of pain at his back and left shoulder radiating down his left arm, with paraesthesia. The examination which he conducted appears to have concentrated on the cervical spine. Again Mr Mann commented that the references to the back were inspecific as to level.
The pursuer remained off work for some nine weeks after the accident. In evidence he described his symptoms during that period as being predominantly pain in his neck. There was also pain in his back, but he described it variously as "not severe" and "bearable". There continued to be no reference to pain in the lower back in the medical records. In an entry dated "19.5.95" but probably made on 19 April Dr Burton recorded a complaint of continuing pain in the neck with some paraesthesia. Dr Bruce recorded a similar complaint on the same date. On 17 May Dr Burton recorded that the pursuer was "pain free", and certified him as fit to return to work. The pursuer, however, explained in evidence that he was under pressure from the defenders' personnel officer, Mrs Ford, to fix a date for returning to work or risk losing his job. That was challenged in cross examination, but the pursuer maintained his position, and Mrs Ford, although her name appeared on the defenders' list of witnesses, did not give evidence. The pursuer stated that, in that situation he asked Dr Burton to sign him off as fit for work. Dr Burton confirmed that it was often the patient who asked to go back to work, and that in such a situation he would rely on the patient's statement as to whether he felt fit.
When he returned to work, the pursuer was initially given light duties, but shortly returned to his normal work. During the period when he was at work, he completed two documents on which reliance was placed in evidence. The first of these was a TGWU Particulars of Accident Form, which the pursuer completed on 25 May. It contained (at paragraph 13) an account of the accident in the following terms:
"hit on the leg and left hand side ... started shaking, feeling sick, pain in back and neck".
In paragraph 21, however, the injury was explained wholly in terms of neck injury, with no reference to the back. The second document was a "Statement of Losses and Expenses Questionnaire" completed by the pursuer on 9 June for his solicitors. In answer to a question about the exact nature and extent of his injuries the pursuer wrote:
"Neck injury, constant pain when moving (left side), tingling in left fingertips, left hand side just below rib cage constant pain, unable to sleep without Ralgex heat and painkillers (Taylax), finding difficulty maintaining work load, still on light duties."
In answer to a question about his present condition and any continuing symptoms, he added:
"Neck still giving me problems as described above. Back seems to be getting worse, the more I try to maintain working. I feel as if I have aged 20 years in the last few months. That is worrying and frightening me more than anything I have ever incurred."
In evidence the pursuer described a change in emphasis in his symptoms beginning before and continuing after his return to work. The pain in the neck started to decrease. In contrast, the pain in his back increased. The part affected was the left side below the ribs. Despite the worsening pain, he continued to work because he thought that if he took further time off he would be dismissed. He said that he "got used" to the pain. He was taking painkillers, including some prescribed for his wife, but he did not go back to his general practitioner. He began to have pain shooting down his left leg from buttocks to toes, brought on by coughing, sneezing, twisting, or stepping up. The pain gradually became worse. He carried on until the pain became unbearable. By the end of October he could no longer cope. He was not sleeping. There came a day when he tried to go to work, but could not. It is not clear from the evidence precisely when the sciatic pain began, but in cross examination the pursuer denied the suggestion that it did not begin until October.
The pursuer returned to Dr Burton on 30 October. Dr Burton's note of that date records:
"Low backache. L[eft] sciatic radiation with limit[ation] of spinal flexion."
On 23 November another member of the practice made a house call and recorded:
"H[istory] of back pain since May after accident at work".
That is the only mention in the records of back pain between May and October.
From that point onward the history does not require such close examination. With the possible exception of Professor McQuillan, the medical witnesses were at one in recognising that by October 1995 the pursuer was exhibiting a clear clinical picture of disc prolapse at the L5/S1 level. Mr Scott, the pursuer's principal expert witness, saw him for the first time in January 1996 in connection with this action, and made that diagnosis. In March, Dr Burton referred him to the Orthopaedic Department at Stobhill Hospital. He was seen there in August when arrangements were made for an MRI scan to be carried out. That was done in February 1997, and is recorded in the hospital records as demonstrating a left sided L5/S1 disc herniation. The situation was complicated by an episode of chest pain, which required investigation. In June, however, the decision was taken that the pursuer should undergo discectomy.
The operation was carried out by Mr Wheelwright on 13 August 1998. Mr Wheelwright did not give evidence, which is unfortunate since there was some dispute among the orthopaedic surgeons who did so as to the inferences to be drawn from the terms of the report of the operation. It is convenient therefore to set out the terms of the central part of the report that records the procedure adopted:
"Paraspinal muscles stripped on the left side, exposing the L5/S1 interspace. Levels confirmed. Ligamentum flavum excised. No need for any bony fenestration in order to expose the exiting S1 root and L5/S1 disc space. There was a fairly small localised yet significant left-sided L5/S1 disc protrusion, impinging upon the S1 root which was mobilised and retracted medially. Via a cruciform incision through the P[osterior] L[ongitudinal] L[igament] and outer annulus, moderate quantity of nuclear material was removed. At the end of this, the root lay free, although the root canal distally was further cleared by a limited foraminotomy. Disc space thoroughly irrigated."
The pursuer has derived substantial benefit from the discectomy, but has not been restored to the health which he enjoyed before the accident. He continues to have some back pain which is sufficient to limit his activities. In particular, standing or walking for prolonged periods is painful. He cannot bend or lift weights. He cannot bear weight on his left leg, and thus cannot climb or work from ladders. The fact that the symptoms have not been wholly relieved is not unexpected. Mr Wheelwright warned of the possibility before the operation was undertaken. Mr Scott explained that the invasive nature of the discectomy, undertaken primarily to relieve the sciatica, was liable to result in continuing low back pain. Moreover, although the operation relieved the pressure on the nerve root, damage done to the nerves during the period when there was such pressure might result in continuing, albeit less severe, leg symptoms. I did not understand it to be disputed that the low back and leg symptoms from which the pursuer has suffered since the operation and will continue to suffer were the consequence of the disc prolapse.
Four consultant orthopaedic surgeons gave evidence. The pursuer's primary witness was Mr Peter Scott, FRCS, who had seen him on four occasions, namely on 29 January 1996, 10 May 1997, 24 November 1997 and 27 July 1998. The pursuer's other witness was Mr Sadhan Kumar Mukherjee, FRCS, who saw him once only, on 15 September 1998. The defenders' expert witnesses were Mr Thomas S. Mann, FRCS, who saw the pursuer on 14 April 1997 and on 9 January 1998, and Professor William M. McQuillan, FRCS, who did not see the pursuer, but provided reports, on the basis of documents supplied to him, in March and August 1998. While it is an over-simplification of their evidence to record the matter so briefly, Mr Scott and Mr Mukherjee favoured the view that the pursuer's prolapsed disc was caused by the accident on 15 March 1995, while Mr Mann and Professor McQuillan favoured the view that a causal connection could not be demonstrated (although Mr Mann, retreating somewhat, as it seemed to me, from the terms of his reports, said in evidence that his mind was not made up on the question of causation). Their differences of view were in part attributable to the nature and extent of the information which each had as to the mechanism of injury and the progress of the pursuer's symptoms between March and October 1995, and the factual inferences which they were or were not prepared to draw from that information. These are matters on which I must form my own views on the evidence. I must then seek to apply to the facts as I find them the understanding of the nature and causation of prolapse of intervertebral discs which I derive from the expert medical evidence.
An intervertebral disc is a structure of soft tissue lying between two adjacent vertebrae. It comprises a nucleus of relatively soft material contained within an annulus of stronger tissue. The disc material may come to move out of its proper place to a greater or lesser degree. Such movement in general is referred to as prolapse of the disc. Other expressions are used (although perhaps not entirely consistently) to reflect different degrees of prolapse. There may be protrusion, in the sense that the displacement of the nuclear material involves a bulge in the annulus, without any rupture of its outer surface. There may be extrusion, in the sense that there is rupture of the outer annular surface and escape of nuclear material through the rupture. Finally, there may be sequestration, in which extruded nuclear material becomes wholly separated. Prolapse may cause pressure to be brought to bear on nerve roots. In particular, if the disc between the fifth lumbar and first sacral vertebrae (the L5/S1 disc) becomes so displaced, the pressure on the relative nerve root will produce pain in the sciatic nerve, that is in the back of the leg from the buttocks to the toes.
Two factors may contribute to the occurrence of a disc prolapse. One is the condition of the disc itself. The material of the disc tends to degenerate with age, becoming less viscous and hence more prone to prolapse. Professor McQuillan graphically described the nucleus of a young person's disc as having the consistency of an oyster, while with age it grows to resemble crab meat. The other factor is the application of some degree of stress. At one extreme, a sudden single traumatic application of considerable force may cause immediate prolapse to the degree of extrusion or sequestration, even (as I understood it) in a healthy un-degenerate disc. At the other end of the scale, repeated application of relatively minor stress, not meriting the label "trauma" at all, may provoke prolapse of an already degenerate disc. There was some difference among the medical witnesses on this matter, although it seemed to me to be at least partly a matter of semantics. Professor McQuillan, as I understood him, tended to acknowledge the significance of trauma as a causal factor only in the case of severe trauma causing immediate extrusion or sequestration of a healthy disc. He appeared to describe all other cases as degenerative, and to decline to admit that in them trauma has any causative role. I prefer the view, to which I understood both Mr Scott and Mr Mann to subscribe, that there was a wide range of interaction between degeneration and trauma, capable of yielding protrusions of various degrees of severity. I do not accept that it is only in the case of sudden, extreme traumatic extrusion or sequestration that a causal connection between the application of traumatic force of some degree and the occurrence of a protrusion may be inferred. Nor do I accept that in every case where there is found to be degeneration of some degree, it must be concluded that the application of traumatic stress played no part in causing the protrusion.
Professor McQuillan went further than any of the other surgeons in declining to accept that the pursuer's disc prolapse was the cause of the symptoms which he was suffering between October 1995 and August 1997. He could not dispute Mr Wheelwright's finding of a protrusion at operation. Nor did he dispute that there had been a positive MRI scan. He maintained, however, that these findings did not necessarily establish that the symptoms were caused by the prolapse. That may be correct as a matter of logic, but as Mr Scott pointed out, the symptoms experienced by the pursuer after October 1995 were classic symptoms of lumbar disc prolapse. Moreover, discectomy substantially relieved those symptoms. In all the circumstances I have no hesitation in accepting that the pursuers' symptoms after October 1995 were caused by a disc prolapse at L5/S1 level.
There was some difference among the surgeons as to the interpretation of Mr Wheelwright's operation note. Professor McQuillan regarded the terms of the report as indicating that the annulus was intact, and expressed the view that that was in keeping with a degenerative rather than traumatic process. Mr Mukherjee did not interpret the report as indicating that the annulus was intact, taking the view that the need for the cruciform incision reflected the formation of scar tissue rather than the absence of rupture of the annulus. Mr Scott accepted that the outer surface of the annulus was intact, but regarded the terms of the operation report as consistent with a prolapse resulting from degeneration, or a prolapse in which degeneration and trauma had both played a causal part. He accepted that the report was not consistent with severe traumatic extrusion. Since Mr Mann's view on the causation of the pursuer's prolapse was not based on an interpretation of the operation note, but on other considerations which he regarded as pointing to degeneration rather than trauma, I took him to agree broadly with Mr Scott on this issue. I prefer Mr Scott's view to Professor McQuillan's. As I have already noted, Professor McQuillan seemed to me to admit trauma as the cause of prolapse only where there was sudden severe prolapse of a healthy disc. There is no question of that being the case here. If all that Professor McQuillan was contending was that there was no sudden traumatic extrusion or sequestration on 15 March 1995, the point is not disputed. If he meant to exclude any traumatic element in the causation of the prolapse ultimately found, I do not consider that that is a sound conclusion from the terms of the operation report. I find that there is nothing in the operation report which excludes or renders unlikely the proposition that stress on the disc incurred in the accident was a causative factor in the occurrence of the prolapse.
It therefore seems to me that the question of causation comes to turn on three factors, namely (i) whether there is any evidence of the presence of disc degeneration yielding symptoms before the accident, (ii) the mechanism of the injury suffered by the pursuer in the accident, and (iii) the precise progress of the pursuer's low back symptoms, if any, between March and October 1995. Mr Scott and Mr Mukherjee based their conclusion that the accident was causative of the prolapse on their consideration of these factors, as they understood them from the information available to them. Mr Mann, although as I have recorded he came in evidence to the position that he had not made up his mind on causation, based his reluctance to draw the inference that the accident played a part in causing the prolapse on the absence from the records of any clear reference to low back symptoms prior to October, and the fact that the pursuer continued to work and did not consult his general practitioner during that period. He eventually acknowledged that if it were proved that there had been no relevant pre-accident symptoms, that the mechanism of injury involved sudden twisting of the lower back, and that the pursuer had suffered gradually worsening low back pain from shortly after the accident, that would require him to review his conclusion. Professor McQuillan also pointed to the long period between the accident and the first recorded complaint of low back pain and sciatica (of which he was aware). Mr Scott accepted that if the true position was that the pursuer suffered no low back pain or sciatica until October, the period of seven months without relevant symptoms would make it very difficult to infer that there was a causal connection between the accident and the prolapse. I must therefore make findings on these three matters.
There is one entry (not made by Dr Burton) in the general practitioners' records for the period prior to the accident that makes reference to backache. The entry is dated 10 January 1992 (i.e. over three years before the accident) and is in the following terms:
"C/o headaches & backache. PERLA. Fundi - NAD. BP 150/100. Re-checked. Chest clear. Co-codamol x 40."
A week later there is a further entry which records a slightly improved blood pressure reading, indicates that the pursuer is to stop smoking, and records that he was advised in relation to his worry that he might fail an imminent employment medical examination because of his blood pressure. The examination recorded on 10 January 1992 concentrates on the head, chest and blood pressure. There is no indication that there was any examination of the sort that would be appropriate in response to a complaint of mechanical back ache. Mr Scott and Mr Mukherjee both expressed the view that the entry seemed likely to relate to a complaint of symptoms of flu or a similar infection. Dr Burton and Professor McQuillan also seemed to be of a similar view. Mr Mann suggested that the entry might fall to be considered along with an x-ray of 28 August 1996 which was reported as showing slight spondylolisthesis of the L5/S1 level. The radiograph itself was not available. Without it, it is difficult to evaluate the significance of the report. I consider it appropriate to accept the view expressed by Mr Scott and Mr Mukherjee. I therefore hold that there is no acceptable evidence that at any date prior to the accident the pursuer suffered any low back symptoms referable to the condition of the L5/S1 disc.
The descriptions of the mechanism by which the pursuer was injured all derive in one way or another from the pursuer, and the variety in the descriptions of what happened is such as to require careful consideration of what should be held proved. Two descriptions, in particular, stand out as different from the others. One is the description in the A & E records, where Dr Miller recorded direct trauma to the occiput and the left side of the neck. Dr Miller impressed me as a careful and experienced doctor who would have been likely to take an accurate note of the complaint made to him. The other is Dr Burton's reference to a pallet falling and hitting the pursuer's neck. I have no difficulty, particularly in light of the limited time that Dr Burton had to devote to each patient, in regarding that as an attempt at compression of what was no doubt a rather longer description, resulting in a misleading summary. There was no question of the pursuer being hit by a pallet. Apart from these two entries, the accounts derived from the pursuer are all consistent in identifying the left side of the back below the rib cage and the back of the left thigh as the parts of his body struck by flying boxes. While I am unable to explain how Dr Miller's account came to be recorded, I am not persuaded that because of it I should reject the account which the pursuer has otherwise been consistent in presenting. I also accept from the pursuer's account of the accident that it involved a sudden event, which provoked a sudden, ill co-ordinated movement on his part, made in an unsuccessful attempt to avoid being struck by the boxes, and included his turning or twisting round quickly. I also accept that he ended up falling to the floor after he was struck by the boxes. Mr Scott understood the pursuer's movements to have been such as to bring to bear on his lumbar spine the sort of twisting forces which typically provoke disc damage. I find it proved that on 15 March 1995 the pursuer's lumbar spine was subjected to the sort of movement that was capable of causing or precipitating a prolapse of a lumbar disc. I accept too, by reference to the symptoms of shock to which the pursuer referred and which his wife confirmed, that the incident was by no means trivial.
It is in my view clear that in the immediate aftermath of the accident, the focus of the pursuer's concern was the pain in his neck. That is the part which he was holding when his wife saw him immediately after he arrived home. That is the part of which he was complaining when he was seen by Dr Miller at Stobhill Hospital, and again when he saw Dr Burton. It remained the focus of his dealings with Dr Burton until his return to work. The pursuer's evidence, however, was that at the time of the accident he felt a sharp pain in his back, that the next day he had a sensation in his back as if there was a large belt strapped round him, and that he thought that the dull ache in his back was not serious and would go away with painkillers. Although Mr Mann was right to point out how inspecific the references to the "back" in the first aider's records and Dr Bruce's records were, and it is therefore important not to accord too much weight to them, they do tend to support the view that the pursuer's symptoms immediately after the accident were not confined to his neck, but were also in his back.
The pursuer's evidence was that as his neck pain subsided, his low back pain got gradually worse. There are two contemporary documents that afford a valuable cross check on that evidence. One is the TGWU document in which on 25 May the pursuer described his symptoms immediately after the accident as including pain in the "back and neck". The other is the questionnaire completed for his solicitors on 9 June. The passage in that document which records that "back seems to be getting worse the more I try to maintain working", and goes on to express worry over that development, strikes me as particularly important. At the date when that document was filled in, it seems to me highly unlikely that it was apparent to the pursuer that the gradual worsening of back pain would have the evidential significance that it now does. I therefore consider that it is reasonable to infer that the pursuer was not being tendentious in making that response in the questionnaire at that stage.
The fact that the pursuer was recorded as pain free by Dr Burton when he was signed off as fit for work is not, in my view irreconcilable with his evidence of slowly worsening back pain. In the first place, Dr Burton was dealing with the neck symptoms, which were indeed much better, although according to the pursuer's evidence not wholly gone by 17 May. In the second place, I accept the pursuer's uncontradicted evidence that he was anxious to return to work for fear of losing his job, and in that context it is in my view quite understandable that he should tell Dr Burton that the pain had gone, even if that was not strictly accurate.
Both Mr Mann and Professor McQuillan expressed scepticism about the pursuer's ability to carry on with his work from May to October, without consulting his general practitioner, if he was indeed suffering low back pain attributable to a progressing disc prolapse. I accept that there is prima facie force in those comments. It is, however, it seems to me, a matter of degree. The pursuer was taking pain killers. He had a strong motive to persist in working - his fear of dismissal. The pursuer did not strike me as a man prone to complaining about pain, or particularly inclined to seek medical advice at the earliest opportunity. I am prepared to accept that he faced his work with a considerable measure of stoicism during the summer of 1995.
The evidence does not disclose precisely when the pursuer progressed from back pain to sciatica, but I see no reason to reject the pursuer's evidence that the sciatic pain began to emerge some time before he finally could carry on no longer and stopped work.
On the whole, therefore, I find as matter of fact that from a dull ache immediately after the accident, the pain in the pursuer's lumbar spine gradually increased in severity during the period from May to October 1995, with sciatica developing in the latter part of that period, and reached such a pitch at the end of October that the pursuer was forced to give up his struggle to carry on at work.
In light, therefore, of (1) the absence of any previous history of mechanical low back pain, despite physically exacting employment, particularly before joining the defenders, (2) the mechanism of the accident, which I find was consistent with the imparting of the sort of twisting trauma likely to contribute to the occurrence of disc prolapse, and (3) the presence of low back pain which progressed in severity over the summer of 1995, I find it proved that the accident which the pursuer suffered on 15 March 1995 played a material part in causing the disc prolapse which was subsequently diagnosed.
The Nature of the Pursuer's Injuries - Neck Injury
The defenders did not dispute that in the accident the pursuer suffered an injury to his neck which caused symptoms of pain and restriction of movement which lasted for some nine weeks. The disputed issue was whether any subsequent neck symptoms suffered by the pursuer were also caused by the accident.
In his first report Mr Mann recorded the pursuer's complaint of neck discomfort, but commented: "I am unable to convince myself that there is any continued neck problem". In his second report he reached the same conclusion, but prefaced it with the comment: "I regard his complaints in respect of neck limitations and discomforts as spurious". In his evidence, he appeared to recognise that the word "spurious" was somewhat harsh, and retracted it. Mr Scott in his latest report mentioned that the pursuer's complaint of neck pain had recurred. He expressed the view that the recurring pain was related to degenerative changes in the pursuer's neck which could reasonably be attributed to the cervical strain experienced in the accident. In evidence he expanded on that matter. He took the view that the neck was at the time of the accident the site of age-related changes in the form of slight narrowing of the disc space (as spoken to by Dr Miller); that the accident precipitated symptoms in the neck; that that damage increased or accelerated the likelihood of future episodes of symptoms; and that it was on that basis that the accident could be said to have caused the more recent symptoms. In cross examination, however, he conceded that he could not say that it was more probable than not that the later neck pain was causally related to the accident. Such symptoms could develop as a result of degenerative changes without any trauma. The longer the gap between the resolution of the neck symptoms conceded to be the immediate consequence of the accident and the subsequent recurrence of neck symptoms, the harder it was to draw the conclusion that the latter were caused by the accident, rather than an independent development of symptoms of the pre-existing degeneration. Although the pursuer in his evidence described the neck pain as being "still" there, there was a long period when it was not the subject of complaint when he was examined by one or other of the surgeons. That may reflect a long period when the neck pain had resolved, or it may merely reflect the pursuer's concentration on the low back pain when it became severe, and the re-emergence of the neck pain as a matter for concern when the low back pain receded after the discectomy.
The view which I have come to, evaluating that evidence as best I can, is that it has been proved that before the accident the pursuer had degenerative changes in his cervical spine, which were, however, symptom free. In the accident, his cervical spine was stressed in a way which (a) precipitated symptoms of pain and restriction of movement in the cervical spine, which resolved in about nine weeks, and (b) left his neck more prone to recurrent symptoms of pain and restriction of movement than it would otherwise have been. The pursuer has, intermittently for the last eighteen months or more, been suffering from such symptoms, but it has not been proved that those symptoms would not have occurred if the accident had not taken place.
Solatium
Mrs Paton for the pursuer invited me to make an award of solatium reflecting both the neck injury (including the present neck symptoms) and the lumbar disc prolapse and its consequences. Her submission was that a total award of the order of £25,000 would be appropriate.
Mrs Paton invited me, in looking at past cases, to have regard to an inflation table to find the present value of awards made at various dates in the past. The table on which she relied was an updated version of the one found in McEwan & Paton on Damages for Personal Injuries in Scotland at p. 1 of the section on "Inflation Table and RPI" (see also Kemp & Kemp on Quantum of Damages, Vol. 2, para IT-101). The updated table enabled past awards to be expressed in March 1998 values. Mrs Paton also referred me to a dictum of Lord President Hope in Currie v Kilmarnock & Loudoun District Council, 1996 S.C. 55 at 67 (see also Girvan v Inverness Farmers Dairy (No. 2) 1998 S.L.T. 21), endorsing the use of inflation tables, but cautioning that even when they are used there remains a risk that changes in the value of money will not be adequately reflected. In so far as I have derived guidance from past awards, I have borne in mind both the effect of the inflation table founded upon and Lord Hope's remarks.
Before turning to reports of previous cases, Mrs Paton drew my attention to the Guidelines for the Assessment of General Damages in Personal Injury Cases (3rd Ed., 1996), issued by the Judicial Studies Board. The parts of the Guidelines dealing with neck injuries and back injuries are printed in Kemp & Kemp, op. cit., at paras E1-004 and E1-005 respectively. She founded in particular on the figures which appear in sub-paragraphs (e) and (f) of paragraph E1-004, suggesting that the pursuer's neck injury fell to be valued at about the border between the two sub-paragraphs. So far as the back injury was concerned, she referred to sub-paragraph (c) of paragraph E1-005.
As relevant examples of awards of solatium (or general damages for pain, suffering and loss of amenities) in respect of back injuries, Mrs Paton referred to Finlayson v Lanarkshire Health Board 1996 S.C.L.R. 774, and Duncan v Scottish Marine Biological Association 1992 S.L.T. 554, and to Bird v Husain, McIlgrew v Devon County Council, Re Dobson, and Bispham v Central Nottingham Health Authority (Kemp & Kemp, op. cit., paragraphs E3-007, E3-008, E3-010 and E3-014 respectively). As a relevant example in relation to neck injury Mrs Paton cited Hinchcliffe v Hill (Kemp & Kemp, op. cit., paragraph E2-105). Mrs Paton accepted that it would not be appropriate to assess the back and neck injuries separately, then add the two figures together.
If only the neck injury was to be compensated, Mrs Paton suggested an award of £7,500. She referred in that context to Sands v George Waterston & Sons Ltd 1989 S.L.T. 174, Lang v Fife Health Board 1990 S.L.T. 626 and Gibson v British Coal Corporation 1990 S.L.T. 714.
For the defenders Mr Mackinnon's primary submission was that solatium fell to be awarded only in respect of the pursuer's neck injury, and that on the basis that it settled after nine weeks. He referred to two cases, namely Murphy v MRS (Distribution) Ltd 1993 S.L.T. 786 and Williamson v GB Papers plc 1994 S.L.T. 173, and submitted that the appropriate award would be £3,000. If, contrary to his primary submission, the prolapsed disc fell to be taken into account, the appropriate award would be £13,000 (Breslin v Britoil plc 1992 S.L.T. 414).
As I have already indicated, I am satisfied that the pursuer has proved that the prolapsed intervertebral disc which he suffered was caused by the accident. The major part of the award of solatium which I must make will reflect the developing low back and leg pain between March and October 1995, the severe low back pain and sciatica and the associated restrictions on his movement and activities which the pursuer suffered while awaiting the discectomy between October 1995 and August 1997, the operation itself, and the residual symptoms in his back and leg which have continued since the operation, and will continue in the future. His activities remain substantially restricted. There is also a risk that the pursuer will suffer a recurrence of the disc prolapse, which risk Mr Scott assessed at 10%. The effect on the pursuer's enjoyment of life has, in my opinion, been substantial. In addition, I must reflect in the award the neck injury and the symptoms which it precipitated in the nine weeks or so after the accident. I take into account that that injury has left the pursuer more prone to recurrent neck pain, but, as I have explained, am not satisfied that I can accept that it has been proved that the particular neck symptoms suffered since mid-1997 are attributable to the accident. Bearing all these aspects of the matter in mind I am of opinion that the appropriate award of solatium is £20,000.
Loss of Earnings
At the time of the accident the pursuer was working for the defenders as a process operator. He had originally qualified as an electrician, had worked for Ciba-Geigy as a chemical process operator for fourteen years, then spent four years as a shift processor with Carless Refining & Marketing Ltd, and finally worked for twenty months as a commissioning process engineer at British Nuclear Fuels Ltd's plant at Sellafield, Cumbria. That last job had given him the security clearance necessary to work in a nuclear establishment. He had also, in a gap in his employment before going to Sellafield, obtained the RGIT Firefighting and Safety Certificates necessary to work in the offshore oil industry. He had, in the course of his career obtained a number of other formal qualifications.
The assessment of the pursuer's loss of earnings requires consideration both of what he would have been likely to do if he had not been injured, and of what, if anything, he is likely to do given the limitations on his working capacity that now exist.
At the time of the accident, the pursuer was registered with a number of employment agencies with a view to resuming contract work of the sort he had done at Sellafield between 1992 and 1994. One such agency was Roevin Management Services Ltd, which was particularly involved in recruitment for Sellafield, and Mr Keith Henderson of that company gave evidence. He spoke to the fact that he had arranged for the pursuer an interview at Sellafield for a job as a member of a commissioning team. The interview was to take place in August 1996, when the pursuer was not fit, and in the event the pursuer withdrew from the arrangement. Mr Henderson, although unable to say categorically that the pursuer, if he had been fit, would have been employed, expressed the view that the pursuer was well placed to obtain one of the jobs on offer. Of the other three men put forward by the agency, one withdrew because he had obtained another job, and the other two were engaged. His Sellafield experience and security clearance were important factors in his favour. In more general terms, Mr Henderson said that there had been a downturn in commissioning work at Sellafield, but an increase in de-commissioning work. Other industries might be differently placed. If the pursuer had obtained a job such as the one at Sellafield for which Mr Henderson arranged an interview, because the job was for the duration of a specific contract rather than of indefinite duration, there was a likelihood of some degree of interruption between jobs. Since such jobs were better paid than the job which the pursuer was doing with the defenders, the risk of gaps in employment had to be balanced against the advantage of higher earnings. If the pursuer had not obtained a job of the better paid sort, there was no reason to suppose that he would not have continued in the sort of work he was doing with the defenders. He had not given any thought to retirement, and in evidence supposed that he would have worked until normal retirement age.
I am prepared to accept on the basis of the evidence which I have outlined that the pursuer had reasonably good prospects, if the accident had not happened, of returning, at least for part of his working life, to the sort of contracting job he had previously had at Sellafield. It is reasonable, in my view to infer that he would otherwise have continued in employment of the sort he had with the defenders. I find acceptable the suggestion made by Mrs Paton that future loss of earnings should therefore be calculated by reference to a rate based partly on the current earnings applicable to the pursuer's former job with the defenders, and partly on the higher earnings obtainable in contracting work. Mrs Paton calculated the former at £10,000 per annum. That was based on the pre-accident rate of wages agreed in paragraph 1 of the Joint Minute and the increases in rates mentioned in paragraph 4. It seemed to me that the agreed material was insufficient for a complete calculation to be made, but that £10,000 per annum was, if anything, an underestimate of the current rate. So far as the rate for contracting work was concerned, the pursuer had while working at Sellafield earned in excess of £20,000 net per annum, and allowance had to be made for rate increases since then spoken to by Mr Henderson. Mrs Paton therefore submitted that it was conservative to calculate the loss on the basis that on average the pursuer would have been able to earn at least £15,000 per annum if the accident had not happened. I accept that submission.
The evidence makes it plain that the pursuer is not fit to resume the sort of work that he did before the accident. In particular, he is not fit for the sort of work that he previously did at Sellafield. That involved clambering about amongst pipework, and entering and working in confined spaces. He cannot do anything that involves standing or walking for prolonged periods, or bending or lifting. He is not even able to undertake a wholly sedentary job, because he cannot with comfort sit in one position for a prolonged period. The sort of job which he might be able to cope with would be one involving little, if any, physical effort, but in which he would be able to intersperse periods of sitting and standing. The view expressed by Mr Mann in his reports was that the pursuer is "totally unfit for any form of physical work because of his back problem. It may be that lighter work will be found at some time in the future, but there must be doubt about this". Mr Scott's evidence, although expressed in terms that sounded less pessimistic, differed only as to the likelihood of the pursuer's obtaining suitable work. On that issue, Mr Kelly gave evidence which filled in the statistical background, and reinforced the grounds for pessimism as to the pursuer's prospects of obtaining suitable work. The pursuer might improve his prospects of employment by retraining, which he expressed himself as willing to undertake, but having regard to his age and disability, I am of opinion that even with retraining the odds are against his obtaining employment. My assessment is that the probability is that the pursuer will not obtain work for which he is fit, but that there is a relatively remote chance that he might do so.
The pursuer's loss of earnings during the initial nine weeks after the accident is agreed at £675. There is no dispute that he is entitled to recover that loss.
Since I have taken the view that the pursuer's disc prolapse was caused by the accident, it follows in my view that he is entitled to his wage loss to date. Mr Mackinnon argued that the pursuer's loss should be cut off at the date when he would have begun work if he had been engaged at Sellafield following the interview arranged by Mr Henderson. The argument, if I understood it correctly, was that the pursuer should be taken to have been fit for work at that stage, since he allowed his name to go forward for interview, and that his reason for not attending the interview was unsatisfactory, involving an untrue representation that he had been involved in a road traffic accident. The pursuer's evidence was that he had initially allowed his name to go forward for the interview because he hoped to have his operation and be fit in time for the start of the job. He cancelled the interview when he realised that would not be possible. The fictitious car accident was mentioned to avoid disclosing his incapacity to Roevin, because he was afraid that if he did so he would prejudice his prospects of future employment. I am quite unable in these circumstances to conclude, in face of the medical evidence, that the pursuer was fit for work in August 1996, and that his loss of earnings should be cut off at that date.
In my view it is reasonable to calculate the balance of the pursuer's loss of earnings to date at the rate of £15,000 per annum, derived in the manner which I have explained above. In round terms, the period since the pursuer stopped work at the end of October 1995 is three years. I therefore assess the loss for the period since October 1995 at £45,000. In so doing I reject Mr Mackinnon's submission that if continuing loss to date was to be awarded in respect of the period after October 1995 and continuing beyond late 1996, the appropriate amount would be the sum of (i) £2148.91, being the agreed amount that the pursuer would have earned if he had continued to work for the defenders during the period from 30 October 1995 to 8 March 1996 and (ii) £20,000 for the period thereafter. There did not seem to me to be any specific rationale for the latter component of that amount.
I therefore assess total loss of earnings to date at £45,675.
In relation to future loss of earnings there is a dispute between the parties as to the proper approach to selection of the multiplier. Mrs Paton submitted that the "Actuarial Tables with explanatory notes for use in Personal Injury and Fatal Accident Cases" ("The Ogden Tables"), 3rd Ed., should now be taken as the starting point. Moreover, she submitted that the multiplier should be selected by reference to the figures for a rate of return of 3%. In making those submissions, Mrs Paton relied on the recent House of Lords case, Wells v Wells [1998] 3 W.L.R. 329, in which the decisions of three separate judges of first instance departing from the convention of basing the selection of the appropriate multiplier on a rate of return of between 4% and 5% were upheld. The convention had been based on the view that a prudent investor would invest in a mixture of equities and gilts, which would yield between 4% and 5% annual return. The House of Lords concluded, however, that a recipient of damages in respect of future pecuniary loss was not in the same position as the ordinary prudent investor, because of his need to use up income as it arose, and as time passed a steadily increasing proportion of capital. He was thus unable to tolerate the fluctuations which, in the long term, an ordinary prudent investor would tolerate. He was therefore entitled to seek the greater security and certainty achieved by investment in index-linked government securities, in respect of which the current net discount rate was 3%. The House of Lords went beyond merely deciding the cases under appeal, and issued a general guideline. The context in which that was done was the existence of a power in the Lord Chancellor and the Secretary of State for Scotland under section 1 of the Damages Act 1996 to prescribe a rate of return to be taken into account in assessing damages for future pecuniary loss. The guideline issued was that until the power under section 1 of the 1996 Act is exercised, the rate of return which should generally be used in the calculation of future pecuniary loss is 3% (see per Lord Lloyd of Berwick at 343D-344A, Lord Steyn at 355E-F, Lord Hope of Craighead at 360C-E, Lord Clyde at 364B-D and Lord Hutton at 370H). Lord Lloyd of Berwick also said (at 347D-E):
"I do not suggest that the judge should be a slave to the tables. There may well be special factors in particular cases. But the tables should now be regarded as the starting point, rather than a check. A judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, or by reference to 'a spread of multipliers in comparable cases' especially when the multipliers were fixed before actuarial tables were widely used."
The use of the tables as the starting point rather than a check on a multiplier derived from comparable cases is a departure from the approach sanctioned in O'Brien's Curator Bonis v British Steel plc 1991 S.C. 315, where Lord President Hope said (at 323):
"Where experience can be relied upon as a guide because there are sufficient comparable cases to which to refer, very little more need be done in the search for an appropriate multiplier than to refer to the comparisons and to apply experience in making the choice. But that exercise is only as good as the experience on which it can draw, and the case for it is weakened and becomes suspect if there is no reliable basis for comparison";
and (at 324):
"In cases where experience can be relied upon as a guide as to what is reasonable - and claims for future loss of earnings will usually fall into that category - it will be sufficient to rely on the figures used in comparable cases without resort to more sophisticated methods of calculation, even as a check";
and finally (at 330):
"It is important that whenever possible the court should follow the traditional approach of basing its award on a conventional figure derived from experience and awards in comparable cases. That approach is simple, economic and easy to use and is flexible enough to allow for the special features of individual cases in deciding what is appropriate. But I think that the court would be failing in its duty in the circumstances of this case if it were to ignore the possibility of checking whether the unspoken assumption is being achieved."
(See also Hunt v Severs [1994] 2 A.C. 350.) Mr Mackinnon submitted that if, contrary to his primary submission, I was awarding future loss of earnings, I should continue to follow the O'Brien approach in preference to the Wells approach, and should therefore select a multiplier on the traditional basis rather than by reference to the Ogden Tables.
In my view it is appropriate that I should follow the guidance given by the House of Lords in Wells. That guidance was concurred in by the two Scottish members of the committee, who expressed no reservation as to its applicability in Scotland. O'Brien had been cited in argument in Wells. There appears to me to be nothing which would make the guidance exclusively English in its application, or inappropriate for use in Scottish cases. Moreover, it seems to me that if the calculation is to be based on a 3% return, that undermines the O'Brien approach of referring primarily to comparable cases and resorting to the Ogden Tables only as a check, because any comparable cases will have proceeded on the superseded assumption of investment in a mixture of equities and gilts yielding a return of between 4% and 5%.
The pursuer is 48 years of age. I accept his evidence that but for the accident he would have intended to work until he was 65. Table 3 of the Ogden Tables is therefore the appropriate one, and the multiplier shown there for a 48 year old male is 12.66. Allowance must then be made for contingencies other than mortality. The tables themselves do not take account of such contingencies (Explanatory Notes, paragraph 21) but in the 3rd edition of the tables there is provided a ready reckoner for making allowance for them. The basic deduction is achieved by multiplying the multiplier by the factor shown in paragraph 31, Table A. For the reasons explained in paragraphs 32 and 33, the figures in the "medium" column in that table are appropriate. Mrs Paton suggested taking the factor appropriate to age 50, namely 0.93. I see no reason, however, to refrain from interpolating between the figure for age 50 (0.93) and that for age 45 (0.95) and therefore taking 0.94 as the factor appropriate to age 48. Paragraphs 36 - 38 indicate that adjustment should be made for more or less risky employment. For more risky occupations the Table A factor should be reduced by 0.02 at age 40 and 0.05 at age 55. Mrs Paton suggested applying the latter reduction, but again I consider that there is room for interpolation, and I therefore take 0.04 as more appropriate for the pursuer's age. Paragraphs 39 and 40 propose a further deduction of the same age-related amounts for persons resident in Scotland. Again, I take the view that it is appropriate to interpolate 0.04 as the deduction appropriate for the pursuer's age. Mrs Paton thus proposed a multiplier of 10.5 (i.e. 12.66 x (0.93 - 0.05 - 0.05)). For the reasons I have indicated I proposed to use a multiplier of 11 (i.e. 12.66 x (0.94 - 0.04 - 0.04) = 10.89, rounded up to 11).
Mr Mackinnon referred to two cases in support of his proposal that the multiplier should be only 2.5. He submitted that the evidence showed that the pursuer's future career path, if the accident had not happened, was uncertain. He submitted that the pursuer had shown no initiative in seeking employment or re-training, despite Mr Scott's evidence that he was fit for light work. The cases cited were Galbraith v Marley Buildings Ltd 1984 S.L.T. 155, and Redman v McRae 1991 S.L.T. 785. Even if I had regarded it as appropriate to ignore the Wells guideline and approach the matter by reference to experience and comparable cases, I would not have found those cases of significant assistance, because their circumstances differ substantially from those of the present case. In the event, however, I derived the multiplier which I propose to apply by reference to the Wells guideline and the Ogden Tables.
One factor which affects the calculation of future loss of earnings remains to be considered. That is the assessment of how likely it is the pursuer will never obtain suitable employment. Mrs Paton put forward two calculations. One proceeded on the basis that the full loss should be allowed for only four years, representing a reasonable period within which the pursuer could re-train, and applying the balance of the multiplier to a multiplicand reduced by an estimate of the earnings which the pursuer would thereafter be able to achieve. For the purpose of that calculation, Mrs Paton supposed that the pursuer's future earnings would be of the order of £6,000 per annum. Although there was scant basis for that figure in the evidence, it does not seem to me to be unreasonable. Mrs Paton's other calculation proceeded on the basis that the pursuer would not obtain suitable work, and therefore applied the whole multiplier to the full multiplicand. As I have indicated earlier, I am of opinion that on the evidence the probability is that the pursuer will not obtain suitable employment. His disability rules out not only any physically demanding job, but also any work which requires him to stand for prolonged periods, or even to remain in one static sedentary position. The pursuer is, as his working history shows, a resourceful man who has on a number of occasions in the past taken the opportunity to improve his employment prospects by undertaking relevant training. It would be underestimating him to suppose that he will not do his best to retrain and obtain suitable employment, and a disservice to him to conclude that he will never work again in any capacity. On the other hand, it would be unfair to him to be over-optimistic about his prospects of obtaining suitable work. The task in front of him is not only to identify training which will qualify him for work which he is physically capable of doing, and to undertake such training, but also thereafter to obtain work of the sort for which he has retrained. His future is to a substantial extent imponderable, but in my view a fair assessment would be to apply the reduced multiplicand for three years out of the eleven which I have selected as the appropriate multiplier.
In the result, therefore, I calculate the pursuer's future loss of earnings as eight years at £15,000 per annum and three years at £9,000 per annum. The total is thus £147,000.
Services - Section 8
The pursuer received assistance not only from his wife, but also from his brother, and Mrs Paton rightly recognised that separate awards should be made in respect of each of them. Her proposals were an award of £4,250 in respect of services rendered by Mrs McNulty and £750 for those rendered by Mr Michael McNulty. Mr Mackinnon suggested purely nominal amounts.
The assistance rendered by Mrs McNulty fell into three periods. The first was the period during which the pursuer was off work after the accident. The second was between October 1995 and August 1997, when the degree of his disablement was greatest. The third was the immediate post-operative period. Apart from the general attendance required by an invalid, the specific needs that Mrs McNulty met were assistance with bathing and with dressing. There was no material in the evidence which enabled me to assess how time-consuming these services were. Doing the best I can on the limited material available, I consider that the appropriate award in respect of Mrs McNulty's services would be £2,500.
Michael McNulty assisted the pursuer by driving him to hospital and medical appointments on a number of occasions, although in his own evidence he tended to minimise the extent of his involvement. He also arranged for car maintenance which the pursuer would normally have done himself to be carried out for him, and undertook some decorating. Again making a broad assessment, I consider that the appropriate award in respect of his services would be £500.
Services - Section 9
Mrs Paton's submission was that the annual value of the services which the pursuer had been disabled from rendering should be assessed at £2,500. For the future, a multiplier of 18.25 (taken from the 3% column of Table 1 of the Ogden Tables) should be applied. Mr Mackinnon again suggested a nominal amount, and did not appear to contemplate an award in respect of the future.
There was evidence that before the accident the pursuer did much of the cooking for the household. Mrs McNally said: "He's a better cook than I am". That seems to me to be a relevant factor during the period of the pursuer's maximum disablement. In the longer term, however, I consider that allowance must be made for the fact that, if he had been fit, the pursuer might well have been working away from home for substantial spells. Moreover, I am not persuaded that the evidence establishes that the pursuer remains disabled from cooking.
I accept that the pursuer is and will remain disabled from carrying out domestic maintenance and decoration which he would otherwise have carried out. I am again handicapped by the absence of any clear evidential basis for valuing those services.
For the period to date, I value the services which the pursuer has been disabled from rendering at £3,500. For the future, I do not consider that a multiplicand in excess of £500 has been justified. The proposed multiplier seems to me to be too high because it does not allow for contingencies other than mortality which might have interfered with the pursuer's continued ability to render these services if the accident had not happened. I have in mind in particular advancing age, and the risk that degenerative changes in his neck might have become disabling. In all the circumstances I regard a multiplier of 15 as appropriate. For the future I shall therefore make an award of £7,500 under this head.
Interest
Mrs Paton proposed that interest should be awarded on one third of the sum awarded in respect of solatium at 4% per annum from the date of the accident. That is in my view appropriate. The amount in question is £955. Loss of earnings to date attracts interest at the same rate for the same period. That amounts to £6,545. The same applies to section 8 and section 9 services to date. On the section 8 services rendered by Mrs McNulty the interest therefore amounts to £360, and on those rendered by Michael McNulty it amounts to £70. On the past element of section 9 services interest amounts to £500.
Summary
In the result therefore my assessment of damages may be summarised as follows:
1.1Solatium £20,000.00
1.2Interest on one third thereof 955.00£20,955.00
2.1Loss of earnings to date45,675.00
2.2 Interest thereon 6,545.0052,220.00
3.1Future loss of earnings147,000.00
4.1Section 8 services - Mrs McNulty2,500.00
4.2Interest thereon360.00
4.3Section 8 services - Michael McNulty500.00
4.4Interest thereon 70.003,430.00
5.1Section 9 services to date3,500.00
5.2Interest thereon 500.00
5.3Future section 9 services7,500.00 11,500.00
Total£235,105.00
By virtue of section 15 of the Social Security (Recovery of Benefits) Act 1997 it is necessary that I specify the amount of compensation awarded for loss of earnings during the relevant period, i.e. between 15 March 1995 and 15 March 2000. The amount is £66,230.
I shall accordingly sustain the pursuer's first plea-in-law, repel the defenders' first, second and third pleas-in-law, and grant decree for payment by the defenders to the pursuer of the sum of £235,105.
| | OPINION OF LORD MACFADYEN in the cause JAMES McNULTY Pursuer; against MARSHALLS FOOD GROUP LTD Defenders: ________________ |
Act:Mrs Paton, Q.C., P. M. Stuart
Thompsons
Alt:Mackinnon
Simpson & Marwick W.S.
23 October 1998