[2017] CSOH 71




In the cause






Pursuer:  Hofford QC, Milligan;  Thompsons

Defender:  Reid;  NHS Scotland Central Legal Office

28 April 2017

[1]        On 10 June 2011 at about 1.30pm the pursuer was working as an emergency nurse practitioner within the emergency department of the Edinburgh Royal Infirmary.  She was in the process of showing two consultants from Birmingham Children’s Hospital one of the resuscitation rooms.  On entering the room she slipped and fell injuring herself in the process.  In this action the pursuer seeks damages from the defender in respect of a statutory breach of Regulation 12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992.

[2]        The case came before me for proof on liability and quantum.  At the proof the pursuer led evidence in support of her case.  The pursuer gave evidence and led evidence from Professor Margaret McQueen (given on commission), a Professor of Orthopaedic Trauma, Dr Colin Rodger, a Consultant Psychiatrist who examined the pursuer, Dr Bridgette Wilson, a witness to the accident, Kate McIlwraith, a witness to the aftermath of the accident, and Dr Alexandra Stewart, an expert in pain.  The defender led evidence from Marion Reid, a witness to the events immediately preceding the accident, Sue Bagley, the pursuer’s line manager, and Dr Jane McEachan, a Consultant Orthopaedic Surgeon.  A joint minute of agreement (JM) was presented to me covering medical records, X- Rays, occupational records, absence records and quantum for some of the heads of loss.


The pursuer
[3]        The pursuer, who was born on 1 October 1956, is an emergency nurse practitioner based at Edinburgh Royal Infirmary.  An emergency nurse practitioner undertakes a clinical role whereby she will assess, diagnose and treat patients who present themselves at the A&E Department.  This, for example, will include stitching wounds, manipulating and re-setting fractured bones and providing support for the fracture, diagnosing illnesses and prescribing medicines.  She is graded at band 7 which has a managerial element to the job description.  She has to manage a number of band 6 emergency nurse practitioners.  She previously worked in Leith Hospital Children’s ward, the Western General Hospital and in the Simpsons special baby care unit before moving to the Edinburgh Royal Infirmary.  She is very experienced, having worked in Accident & Emergency since 1992.  Emergency nurse practitioners normally work a shift pattern which includes day, twilight, and night shifts.  Night shift requires experience given the non-availability of nurse practitioner colleagues to assist, although there are doctors and registered nurses available during night shift to call on for support, if necessary.  There are no concerns about the pursuer’s abilities as an emergency nurse practitioner which was confirmed by her line manager, emergency nurse practitioner, Sue Bagley, who gave evidence for the defender.  There was some evidence about the pursuer’s absence from work record which is agreed at JM paragraphs 8 and 9. However, many of the absences were related to the injuries sustained in the fall which is the subject of this judgment and there was no suggestion in evidence that the reasons given for these or the other absences were other than genuine.  Her qualities as a nurse were described by the witness Dr Alexandra Stewart as stoic and dedicated to her patients.  I shared her impression of the pursuer’s qualities, which came across to me when hearing her evidence.


The locus
[4]        The Accident & Emergency Department of Edinburgh Royal Infirmary has two resuscitation rooms.  Each has a sliding door and a curtain which can operate as a screen when the door is open.  The entrance to the second resuscitation room where the accident occurred is around 10 feet wide.  The room is fairly big, described by the pursuer as being about half the size of the courtroom (the proof took place in court 10 of the Court of Session).  There is medical equipment and trolleys in the room.  The floor is the standard linoleum hospital floor.  As with any hospital it requires to be kept clean and, as the hospital is in operation 24 hours, the cleaners require to clean around the work of the hospital.  Cleaning services at the Edinburgh Royal Infirmary are currently subcontracted although they will revert back to the NHS in 2017.  The cleaning of the second resuscitation room on 10 June 2011 at or about 1.30pm was being carried out by the witness Marion Reid.  She was using the trolley provided to her which contained mops and cleaning products.  The wet floor sign which she was provided with was not deployed as it was hanging on her trolley.  She had also been provided with a ‘work in progress’ sign but this was not deployed either.  The method of working used by Marion Reid was to use two wet mops when washing the floor.  However, on this occasion, shortly before the pursuer arrived, she only used one mop when washing the floor, starting at the back of the room and finishing at the entrance.  This made the floor streaky after washing and not obviously wet.


Events of 10 June 2011
[5]        The pursuer gave evidence explaining that she had agreed to show two visitors, Dr Bridgette Wilson and Dr Sapna Verma around the resuscitation room during a break in their conference.  They were both interested in paediatric resuscitation.  According to the pursuer and Dr Wilson, the doorway and the curtain screen were open.  The pursuer stopped at the door entrance and saw Marion Reid, a domestic cleaner, within the room.  The pursuer asked her if she would mind if they came in.  She said no, she didn’t mind if they came in.  The pursuer walked into the room.  Having taken 3 or 4 steps into the room, as she turned to speak to her visitors, she slipped on the wet floor and fell heavily. According to the pursuer, Mrs Reid did not give any warning that the floor was wet.  She noticed that there was a pile of dry sweepings on the floor but was unaware that the floor was wet.  She would not have taken her guests across a wet floor and would not have entered the room had she seen a wet floor warning sign at the entrance to the room.  As she explained, if she had seen a floor wet sign she would not have entered the room until it was safe to enter.  To her a wet floor sign was a warning that the floor was wet and that would stop her from walking over the wet floor.  Her account was supported in broad terms by Dr Wilson although she did not recall a conversation between the pursuer and the cleaner, in fact she did not recall the cleaner speaking at any time.  The only significant discrepancy in this chapter of the evidence was the location of the cleaner’s trolley.  Mrs Reid said she had placed her trolley in the middle of the entrance so anyone who sees it knows you’re in there doing your work.  However, the pursuer did not see a trolley in the doorway, which was supported by Dr Wilson and Kate McIlwraith, a day duty nurse in charge of the A&E Department on the day of the accident.  However, I accepted the evidence of the witness Reid that the cleaning trolley was placed in the entrance of the doorway of the resuscitation room.  Mrs Reid was adamant in her evidence on the location of the trolley whereas the pursuer and supporting witnesses had no recollection of the trolley being in the doorway.  Their attention at that time would obviously not be on matters such as the precise location of a cleaning trolley.  Their attention was on the tour of the resuscitation room and after the fall on the injury to the pursuer and her wellbeing.  It is understandable that they may have overlooked the precise location of the trolley.  However, what is of real importance to me in determining this issue is the system of work operated by Mrs Reid.  The location in the doorway was consistent with her system of work which had been in operation for some time.  Her system of work when cleaning a room was to place the trolley in the doorway, as she explained, to let people know that she was there, in the room, doing her job.  This was important to her as she did not place a wet floor sign on the floor when wet mopping the floor and her method of information was the placement of the trolley in the doorway.  However, the placement of the trolley in the doorway did not mean that wet mopping was taking or had taken place.  As she accepted, her cleaning routine may only involve dry sweeping, or dry mopping, or polishing and dusting, or tidying, all of which do not involve washing and wet mopping.  Further, the trolley when placed in the doorway did not and was not intended to prevent anyone from entering the room.  Having regard to the dimensions of the trolley and the doorway there was ample room either side of the trolley for persons to enter and Mrs Reid did not say that the location of the trolley was intended to physically prevent entry to the room. According to Mrs Reid and Dr Wilson, at the time of entry into the room Mrs Reid was holding a mop. I accepted this evidence. However, in my opinion this, like the positioning of the trolley, only indicates that the room is being cleaned, not that the floor is wet. A wet floor sign would clearly inform that the floor is wet and the absence of such a sign would be an indication that the floor is not wet. 

[6]        The precise terms of the brief conversation between the pursuer and Mrs Reid is also of importance.  Mrs Reid accepts that there was a brief exchange of words as the pursuer is not the type of person to enter a room being cleaned without saying anything.  I took that to mean that the pursuer was known as a polite person which certainly chimed with her demeanour when giving evidence.  According to the pursuer she asked Mrs Reid if she and her guests could enter the room.  Mrs Reid agreed and the pursuer entered the room with her guests.  Mrs Reid did not say to her that the floor was wet and no sign was deployed to this effect.  Mrs Reid was equivocal on the conversation with the pursuer.  In examination in chief she stated that the pursuer spoke to me but couldn’t remember what she said, she was trying to say something but didn’t finish the sentence, she wanted to say something like the floor was wet but didn’t finish the sentence.  In cross examination, her position was uncertain:

“I remembered going to say something like the floor might be wet; maybe I didn’t but I’m sure I did say something; I honestly can’t remember if I said anything; it is her choice if she wants to come in; and I can’t remember word for word what I said.”


I accepted the pursuer’s evidence that Mrs Reid did not verbally warn the pursuer that the floor was wet.  The pursuer was clear that no warning was given.  I believed her. She explained that had a warning been given she would not have entered the room due to the risk involved of her guests wearing high heels and possibly slipping on the wet floor.  Given her clear recollection of no warning having been given and she having entered the room with her guests when, had a warning been given, she would not have done so, and the unclear, vacillating position of Mrs Reid, I have no hesitation in holding that no verbal warning was given at the point of entry into the room by the pursuer and her guests.  This finding is consistent with the conversation between the pursuer and Mrs Reid some time after the accident when, according to the pursuer, Mrs Reid apologised.  The pursuer stated that Mrs Reid said to her that she was really sorry and was just about to tell her to be careful before she was able to say it.  Mrs Reid couldn’t remember saying this but accepted in evidence that if the pursuer said it, it must be true.  This is significant and is consistent with no warning having been given, although I accept that Mrs Reid’s intention was to give a verbal warning. A visual inspection of the floor on entering the room would not have placed the pursuer on notice.  One wet mop was used starting at the back of the room making the floor streaky and not obviously wet, there being insufficient water in the single mop head to transfer enough water to cover the whole floor, particularly at the entrance to the room. The floor was not obviously wet.  I therefore conclude that the pursuer received no warning, (verbal, signage or visible) that the floor was wet. 

[7]        The system of work operated is that wet floor signs are issued by Mrs Reid’s employer for the purpose of warning staff and the public that the floor is wet and potentially hazardous. The wet floor sign was not deployed and no alternative wet floor warning was given. According to the pursuer, had she been warned, she would not have entered the room or she would have been cautious in the way she entered the room and the accident would not have happened.  Regulation 12(3) of the Workplace (Health, Safety & Welfare) Regulations 1992 provides that:

“so far as is reasonably practicable, every floor in a workplace and the surface of every traffic route in a workplace shall be kept free from obstructions and from any article or substance which may cause a person to slip, trip or fall.”


The statutory defence of reasonable practicability was not pled in this case.  In any event the deployment of a wet floor sign or a verbal warning are measures which are reasonably practicable.  It was argued by the defender not that this measure was not reasonably practicable, but it was pointless. However, I do not accept this submission. If it was pointless then it would not be deployed when wet mopping the corridor, as the trolley and mop would be sufficient warning that the floor was wet. Mrs Reid explained that in these circumstances the wet floor sign would be deployed, which rather undermines the argument that it was unnecessary when cleaning the resuscitation room. To my mind, logically there were no real differences between the two situations. The fact is that the deployment of a wet floor sign is part of the system of work which was to be used when the floor was wet and wasn’t in this case. If the floor was wet then staff would expect to see a wet floor sign. The fact it was not there would and did give the pursuer the false impression that the floor was not wet.  I agree that in law context is everything (Marks and Spencer Plc v Palmer [2001] EWCA Civ 1528 at para’s 33 – 34) and in the context of this case, having regard to the system of work where a wet floor sign is issued to cleaners to warn of the danger of a wet floor, the fact that it is not deployed whilst a room is being cleaned would give the impression that the floor is not wet. If a trolley and a mop are sufficient warning then why issue a wet floor sign. In my opinion, such a sign is not pointless for the reasons set out above. It was a measure which was reasonably practicable as it was the measure determined by the system of work operated by Mrs Reid to warn the public that the floor was wet.


Contributory negligence
[8]        The basis for a case of contributory negligence is that the pursuer was warned that the floor was wet and/or that it was obvious that the floor was wet.  As I have held that no warning (verbal, signage, or visible) was given to the pursuer that the floor was wet and it was not obvious to the pursuer that the floor was wet there is no basis for a case of contributory negligence in terms of section 1 of the Law Reform (Contributory Negligence) Act 1945.  The placement of a wet floor sign would have prevented the pursuer from entering the room or entering it in the manner that she did.


[8]        As a result of the accident the pursuer sustained an unstable fracture of the left distal radius which caused her to momentarily faint in the resuscitation room.  She was initially seen within said Edinburgh Royal Infirmary's Accident & Emergency Department.  X-rays were taken and a backslab was applied to her left wrist.  She was sent home with painkillers.  She was seen again at the said Edinburgh Royal Infirmary three days later when her wrist was manipulated under regional anaesthetic and placed in a further backslab.  She was admitted to said hospital two weeks later and underwent surgery to have an external fixation placed on her wrist and lower arm.  She was prescribed painkillers.  She was an inpatient for three days.  Thereafter she attended one further appointment at the Accident & Emergency Department because her fingers had become painful and swollen.  No infection was discovered but she was prescribed antibiotics.  The external fixation was removed six weeks later at the said Edinburgh Royal Infirmary's Fracture Clinic and she underwent physiotherapy on a weekly basis to supplement the home exercises she did to improve movement in her wrist.  A reasonable degree of movement in her fingers and thumb resulted, however, she had stiffness and restricted movement in her wrists and hand as well as diffuse swelling in her hand.  By 6 September 2011 she was continuing to experience a feeling of a tight band around the wrist with considerable swelling of all the fingers of her left hand, intermittent colour changes and occasional shooting electrical pain in the hand.  She described herself as having a claw hand.  On 4 October 2011, it was noted that her symptoms were improving although she had not regained full movement in her hand.  By 13 March 2012 she had increased sweating in the left palm and numbness and occasional shooting pain (pursuer’s medical records for the Edinburgh Royal Infirmary which are 6/5 of the inventory of productions and the report by Professor Margaret McQueen, Professor of Orthopaedic Trauma dated 29 June 2012 which is 6/1 of the inventory of productions). 

[9]        Around three months after the accident the pursuer was diagnosed with complex regional pain syndrome in the left hand.  Complex regional pain syndrome (CRPS) is a long term condition which can worsen with time.  In this case the CRPS was a direct result of the fracture resulting from the fall.  It is characterized by severe pain and sensitivity, swelling, and changes in the skin.  The main feature is incapacitating severe pain.  It is characterized by sensory, motor (muscle power) and sympathetic nerve (nerves that control blood flow) dysfunction in the affected limb.  Although spontaneous resolution can occur, when CRPS persists beyond 6-8 months it does usually develop into a chronic, debilitating condition with a profound and lasting impact on the quality of life, activities of daily living and, depending on the nature of the job, can have a debilitating effect on a person’s employment.  The causes are unknown, but evidence suggests a contribution of both peripheral and central nervous system mechanisms.  She was referred by her GP to the Lothian chronic pain service where she was seen on the 3 April 2012 for pain management.  Dr Alexandra Stewart is an expert in CRPS.  She has gained an MSc in Pain Management at the University of Sydney in 2005 and is a Fellow of the UK Faculty of Pain Medicine of the Royal College of Anaesthetists (FFPMRCA).  She is currently a Specialist in Pain Medicine and Anaesthesia with Lothian Health Board, Spire Murrayfield Hospital and the Edinburgh Clinic.  She examined the pursuer on 13 March 2015 and using the Budapest Diagnostic Criteria confirmed CRPS (colour changes in her left hand, abnormal sweating, poor nail growth, swelling, tremor, poor range of movement and weakness – she met 3 of the 4 diagnostic criteria sufficient to confirm diagnosis). 


Effect of CRPS on her life
[10]      The pursuer as a result of her injury and the long term effect thereof has had to adjust the clothes she wears.  She will often wear clothes with zips rather than buttons as she finds it difficult to use her left hand for activities requiring fine motor skills.  She also has to fasten her bra at the front as she is unable to do this at the back due to the pain in her left wrist.  She can dress independently but takes longer to do so.  She used to enjoy swimming once or twice a week which helped her asthma (she has suffered from asthma from childhood).  She has rarely done this since the time of the accident as it causes her pain in her left wrist and left shoulder.  She would occasionally play the piano at home for her own enjoyment which she is now not able to do.  With regard to household chores she has had to adapt her methodology or wait for family to come and help with the heavier chores.  She used to do all her own gardening and has now had to employ a gardener since the time of her accident.  With regard to driving, she has to drive to be able to travel to work.  Driving causes her pain in her left wrist and arm (used for changing gears in her manual car) which manifests itself after only 5 minutes of driving.  She has had to adapt how she holds the steering-wheel between her left thumb and the index finger.  She cannot afford an automatic car. With regard to her employment she cannot do fine motor tasks such as suturing of any length and does not have the strength to manipulate broken bones back into place or conduct a physical examination which requires her to lift or move limbs.  The injury has affected her confidence at work and her energy levels are devoted to getting through the working day.  She does not see friends and family as much as before and is therefore more socially isolated.  I accepted the pursuer’s evidence of her injuries and Professor McQueen and Dr Stewart’s diagnosis of CRPS (transcript of the evidence on commission of Professor McQueen at page 10 which is 6/14 of the inventory of productions and page 10 of the report by Dr Stewart which is 6/12 of the inventory of productions).  I also accepted the evidence of the effect that the injuries have had on her wellbeing provided by these witnesses, including the pursuer.  Despite the defender’s position as set out in the record (not known and not admitted) there was little or no challenge to the pursuer’s evidence detailing her injuries, the diagnosis of CRPS and the effect on her wellbeing, nor was there any challenge to the evidence of the eminent Professor McQueen and the expert on CRPS, Dr Stewart in this regard either.  I should also add that the defender’s expert Jane McEachan, Consultant Orthopaedic Hand Surgeon who has experience in diagnosing and treating CRPS did not dispute the diagnosis of CRPS (report dated 18 January 2017 which is 7/7 of the inventory of productions and in evidence).


[11]      As a result of the accident the pursuer suffered damage to an upper right central incisor root which was fractured.  The crown which was supported by this root had to be removed by her dentist and a temporary plastic crown inserted in its place.  Full cosmetic repair required the replacement of the crown and two neighbouring crowns with a bridge.  The cost of this treatment is agreed in terms of the JM (Heads of Loss – paragraph 12).


Depressive Disorder
[12]      The pursuer now suffers from a depressive disorder for which she requires to take medication.  The disorder was gradual in manifesting itself.  The injuries detailed above, together with the lasting effects of the injury and the constant pain suffered by the pursuer were difficult for the pursuer to endure.  This affected her work in respect that she could not now do the full range of tasks which she was able to do prior to the accident.  Some of the tasks that she was still able to do were done more slowly than before and she worried about the effect on her patients.  Her levels of attention and concentration were reduced and her memory was adversely affected.  This affected her confidence and she worried that the reduction in her performance was being monitored and scrutinised with a view to redeploying or retiring her.  She felt that her managers were not sympathetic or supportive.  She required to devote all her energies to her work and soon after work finished she tended to sleep to regain enough energy for the next working day.  Her sleep pattern was disturbed and irregular.  This resulted in low mood and diminished interest and enjoyment of life.  She was much more tearful than before and comfort ate resulting in her gaining three stones in weight.  There were also health issues with her father.  All these factors combined resulted in developing a depressive disorder which caused her to approach her GP in October 2014.  She was prescribed anxiolytic antidepressant medication but the depression worsened such that was signed off on sick leave by her GP in January 2015.  Her medication was adjusted and this resulted in improvements.  This diagnosis was confirmed by Dr Colin Rodger, a consultant psychiatrist who examined her on 11 March 2015 and 22 December 2016.  In his opinion the depressive disorder (DSM-V diagnostic code 296.21) was precipitated by the accident (paragraph 13.01 of his report which is 6/11 of the inventory of productions).  He concluded at paragraphs 13.02 – 13.03 as follows:

“13.02 – I consider that a vicious circle of interplaying influences has developed between her physical difficulties, her compromised employment functioning and her mental condition with a Depressive Disorder where each is fuelling the other.  I consider it likely that this situation has been aggravated by Ms McLeish experiencing additional stresses through concern for her parents’ welfare with a decline in her father’s health from the latter part of 2014.  I consider that concerns regarding her parents have been an additional actor, but the consequences of the index accident have been the primary material influence contributing to the establishment of her mental condition with a Depressive Disorder.


13.03 – I consider that Ms McLeish continues to suffer with a Depressive Disorder up to the present and her mental condition continues to render unfit for employment…”


 Following the second examination on 22 December 2016 Mr Rodger produced a supplementary report dated 5 January 2017 which is 6/18 of the inventory of productions.  He confirmed that as a result of an increase in her medication and some sessions of psychological therapy she no longer fulfils the diagnosis of a depressive disorder albeit she still suffers with a wide range of mild depressive symptoms.  He concluded at paragraph 8.03 as follows:

“8.03 …  I consider that Mrs McLeish has continued to suffer with a wide range of mild depressive symptoms which have continued with fluctuating subclinical intensity, but with no significant or consolidating trend of improvement.  I consider that these depressive symptoms have been perpetuated by the psychological stresses associated with the effects of the index accident in promoting a complex regional pain syndrome and the associated stresses from this in relation to her work situation.  “


I accepted the evidence of the pursuer and Mr Rodger on the depressive disorder suffered by Mrs McLeish.  I also accept that the cause of the disorder is the accident.  Albeit the diagnosis, symptoms and extent of the disorder were covered in cross examination, there was no real challenge to the evidence that Ms McLeish suffered from a depressive disorder caused by the accident, and the medical records and expert opinion bears this out.  It is no surprise that having regard to the injuries suffered, the onset of CRPS, the restriction in movement, the constant pain suffered and the effect on her job, she developed a depressive disorder.



[13]      In addition to liability another point of dispute between the parties related to retirement, in particular whether the pursuer would require to retire early as a result of being unable to do her job due to her injuries and the long-term effects thereof.  The relevant statement in the pleadings is to be found in statement 5 (at page 10A of the record) as follows: -

“In any event, she may require to retire early due to her symptoms.”

In answer (answer 5) the defender avers that:

“Any injuries sustained on 10 June 2011 do not impact on her ability to continue working …  Any injuries … do not compromise the security of her employment (page 13D) ….  Any doubt over the pursuer's ability to continue working to a normal retirement age are associated to these numerous other ailments and are unconnected to any injuries sustained on 10 June 2011 (page 15 E).


Before dealing with the evidence bearing on this issue it is appropriate to deal with two matters which were raised in evidence with the pursuer and the pursuer’s line manager, Sue Bagley.  The first relates to an allegation that the pursuer was being bullied by her line manager, Sue Bagley.  Evidence was given by the pursuer that she felt bullied and it was put to Sue Bagley expressly that she bullied the pursuer.  Sue Bagley denied this and stated that she was upset at such a suggestion.  Other than the pursuer’s evidence that she felt bullied there was no evidence to support this allegation.  Having heard her evidence over two days, I got the impression that Sue Bagley was a dedicated nurse who was motivated to deliver the best service that she could for her patients.  She was fastidious in that she followed the rules and procedures of the NHS in dealing with staff.  She is to be commended for this.  In a large organisation the size of the NHS following the rules ensures consistency and fairness both for the member of staff who is the subject of the application of rules and procedures and the other members of staff who may have to fill in and cover for their colleague.  It is important for all staff that the rules and procedures are followed.  If not, it will affect staff morale and confidence and have a corrosive effect on the organisation.  There was no evidence that Ms Bagley failed to follow the rules and procedures in her dealings with the pursuer.  The evidence showed that she did what was required by the rules and procedures of the NHS.  Her accessing of occupational health was appropriate and she sought expert advice in dealing with the pursuer so that her decisions in relation to the pursuer were informed and fair.  Perceptions can be inconsistent with realities.  Whatever the pursuer’s perceptions, it was clear to me on the evidence that Ms Bagley had not bullied the pursuer.  It is certainly the case that laterally there was friction between the pursuer and Ms Bagley but it did not have its genesis in bullying conduct, for there was none in the evidence that I heard.  On the contrary, Ms Bagley has supported the pursuer in making the necessary adjustments and adaptations for her to continue working.  The second matter relates to an objection to the admissibility of part of the evidence of Dr Stewart.  The basis of the objection was one of fair notice in respect that her most recent report was not lodged as a production and the witness was being asked questions about its subject matter.  Dr Stewart prepared a report on the pursuer dated 13 March 2015 which was based on an examination of the pursuer on the same date.  This report was lodged in November 2016 and is 6/12 of the inventory of productions.  A letter dated 16 December 2015 was also lodged (6/13 of the inventory of productions) bearing on the issue of early retirement.  For the sake of completeness her CV was lodged which is 6/20 of the inventory of productions.  During her evidence objection was taken when she sought to give evidence about a subsequent examination of the pursuer in December 2016.  The evidence was allowed under reservation.  It became clear during her evidence that Dr Stewart had prepared a report following this examination and had sent the report to the pursuer’s agents.  The report was not lodged and the defender was not placed on notice that the pursuer had been seen again by Dr Stewart in December 2016 or that there was an updated position.  This was to be contrasted with the lodging of updated reports from two other experts, Professor McQueen and Dr Rodger, and the preparation for taking the evidence on commission of Professor McQueen.  It was submitted that the pursuer had therefore failed to provide fair notice to the defender and in doing so had breached Practice Note No 1 of 2007 and the principles of early and full disclosure of expert reports as set out in Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59 at paragraph 57. 

[14]      The evidence given in chief by Dr Stewart about her examination of the pursuer in December 2016 was that she presented differently than before.  She was coping less well with the pain and found dressing more difficult.  She was just managing to work as she was working under pain.  Her pain felt 20% worse.  The drugs were causing her to have less concentration and she was finding work stressful.  She felt excessive pressure from her line manager and should be retiring now.  In cross examination, in respect of the December 2016 examination, Dr Stewart stated that she was surprised at the pursuer’s ability to continue working in such pain, reduced concentration causes wooziness, and that she had little social interaction as a result of her injuries.

[15]      In reaching a decision on the admissibility of that part of Dr Stewart’s evidence which relates to the December 2016 examination, a number of points can be made.  Firstly, Dr Stewart’s evidence was a mix of fact and opinion.  Fact in relation to the findings on examination and what was relayed to her by the pursuer, and opinion on her retirement date.  Secondly, Dr Stewart was a competent witness and no challenge was taken to her admissibility as an expert witness.  She had provided a detailed report which was lodged as a production and although it was late in the day when it was made available to the defender, it was nonetheless made available in advance of the proof.  Dr Stewart was available for precognition and had the defender sought it I would have granted an adjournment to the defender to deal with the December 2016 evidence.  As the defender’s expert, Jane McEachan was still to be led (Dr Stewart was led as part of the pursuer’s case) she could have been asked to comment or opine on anything which came out of the December 2016 evidence.  No such motion was made.  Thirdly, I know of no rule of evidence which renders an expert witness’ evidence inadmissible where the evidence is not covered by a report lodged in process.  Paragraph 2 of Practice Note No 1 of 2007 is headed Personal Injuries Actions: Expert Evidence.  It provides as follows:

“Practitioners are reminded of the principles of early disclosure of evidence underlying the procedures set out in Chapter 43 with a view to facilitating early settlement.  The practice whereby parties delay disclosure of expert reports until the last minute is to be discouraged.  Parties will be expected to lodge in process, within a reasonable time after receipt, all expert reports on which they intend to rely, whether in relation to liability or quantum.  Failure to do so without reasonable cause may have a consequence in expenses.”


It is clear to me from this excerpt from the practice note, which in any event is not a rule of evidence, that it is not prescriptive.  It also does not mention or prescribe inadmissibility in the event of non adherence, in fact the penalty for non adherence expressed as a possible consequence lies in the area of expenses.  Further, the focus of the practice note is on facilitating early settlement.  In Kennedy v Cordia (Services) LLP, supra, the UKSC looked at the requirements to be met before expert evidence could be admitted.  The defender cited paragraphs 48 and 57 in support of his objection.  Paragraph 48 relates to the requirement that opinions should be reasoned rather than mere assertion or bare ipse dixit (see also McTear v Imperial Tobacco Ltd 2005 2 SC 1.  This is uncontroversial.  Paragraph 57 states as follows:

“[57]….  The legal team also should disclose to the expert all of the relevant factual material which they intend should contribute to the expert’s evidence in addition to his or her own pre-existing knowledge.  That should include not only material which supports their client’s case but also material, of which they are aware, that points in the other direction, viz the court’s concerns about one sided information in R v Gilfoyle.  The skilled witness should take into account and disclose in the written report the relevant factual evidence so provided.”


This is also uncontroversial and best practice requires this to be followed.  However, the UKSC does not state that failure to adhere to this renders the expert evidence inadmissible.  Such a failure may go to weight and may, in certain circumstances, render the evidence of limited or no weight, for example where there is bad faith or where the failure is intended to mislead.  It is difficult to be prescriptive, it will of course depend on the circumstances. 

[16]      My own researches have identified the case of Torres v HMA 1998 SLT 811The facts in this case are that the appellant was tried on indictment on a charge of being concerned in the importation of cocaine into Scotland.  The list of productions included a report of spectroscopic analyses, comparing paint samples on a boat captained by the appellant with paint found in, inter alia, certain debris from a sack which had contained cocaine.  The results of the analyses of the various samples were recorded on a computer.  During the evidence of one of the forensic scientists concerned, it was held that the sample of paint from the boat which had been compared with the sample of paint from the debris was inadmissible in evidence.  The Crown then decided to try to establish that the paint from the debris was identical to paint from the boat by reference to another, admissible, sample of paint from the boat, which was one of the labelled productions in the case.  This sample had been subjected to spectroscopic analysis prior to the trial and had been referred to in the report, which had made it clear which comparisons had and which had not been carried out.  The scientists then, on the instructions of the Crown, brought up on the computer screen the results of the analysis of that sample and of the sample from the debris, saw that they were indistinguishable, and prepared a short report to that effect which was given to the Crown.  The defence was not shown this report but was told about it just before evidence of the comparison was given.  The report itself was not put to the witness who gave parole evidence of the comparison to which it referred.  Objection was taken to this evidence on the ground that the defence had not had fair notice of it and that the report itself could not be lodged as a production.  The trial judge repelled the objection.  The appellant appealed to the High Court on the ground, inter alia, that this evidence was inadmissible.  It was argued in support of this ground of appeal that the starting point was the question of fairness and fair notice to the accused.  The Crown had for many years been required to list the productions on which they proposed to rely, as well as the witnesses, and at the material time that requirement was the subject of s 78 (1) of the Criminal Procedure (Scotland) Act 1975.  In the course of the further investigations by the forensic scientists, an additional document had been created, although it had never been lodged, and the witnesses had not had it in front of them when they gave evidence.  What had happened was unusual and contrary to the spirit of the legislation requiring that fair notice should be given to the accused.  In refusing this ground of appeal the court held at P818J – that:

“In our view, it is clear that there was, in this case, no breach of any statutory provision.  The paint samples which were eventually compared had been lodged and the first report which was lodged made clear what comparisons had, and what comparisons had not, been carried out.  The additional work undertaken by the forensic scientists did not involve any new examination or analysis of the label productions.  It was only a matter of extracting and comparing data from records already made and kept in the forensic laboratory.  There is no prohibition against a skilled witness carrying out work of that kind and nothing to make the evidence derived from that work incompetent.  It is certainly true that, in such a situation, questions of fairness to the defence may arise.  In the present case, however, it seems to us that it must have been clear to the defence that the Crown would seek, if possible, to maintain the link directly established by the forensic evidence between the vessel Dimar-B and the samples found in the vehicle.  Moreover, a close reading of the report would have disclosed to the defence that there was material among the productions upon which a comparison might be carried out to establish such a link was available.  We appreciate that, as a practical matter, it may very well be difficult for the defence to foresee what conclusions the Crown may seek to draw from productions lodged in court, if no notice is given of those conclusions in the reports lodged by the Crown.  That being so, we think that it would have been preferable for the advocate depute to make the additional report available to the defence at the earliest possible opportunity, although he could not lodge it as a production, rather than leaving the matter until the witness came to give evidence.  Nevertheless, the additional evidence did not introduce any genuinely new material or additional source of evidence against the accused.  Any possible prejudice to the defence could have been overcome, in the circumstances of this case, by taking advantage of the opportunity of an adjournment which was offered by the trial judge.  On the information provided to us, it seems overwhelmingly probable that all that was necessary for the defence to do was to check the correctness of the comparisons carried out by the Crown witnesses and that that could have been done very quickly.  If, as the Dean of Faculty suggested, some unforeseeable problem had arisen, the situation would, of course, have been different, but for the present purposes that is a matter of pure speculation.  In all the circumstances, therefore, this ground of appeal fails.”


This case is support for my view that there is no rule of evidence rendering the evidence in such circumstances inadmissible.  In this case the evidence given by Dr Stewart about the December 2016 examination is in essence an update on the injuries caused by the accident and the continuing effects on the pursuer.  It does not introduce a new matter unconnected with the contents of her original report which is lodged as a production (6/12 of the inventory of productions).  The expression of an opinion on early retirement is covered by the contents of her letter, which is 6/13 of the inventory of productions, and the rationale for her opinion is related to her injuries, the long-term effects, the nature of her job and the restrictions on her ability to do her job, which are all well covered in the written material lodged as productions.  I therefore do not accept the defender’s submissions on this point that unfairness arose, which was incurable during the proof, as a result of this evidence.  For the foregoing reasons, I am of the opinion that all of Dr Stewart’s evidence is admissible.

[17]      With regard to the issue of early retirement, the pursuer’s injuries and the long-term effects thereof have clearly affected her ability to do her job.  This was not disputed.  In particular, as a result of the restrictions in her movement of her injured hand she had difficulties in suturing, particularly if the wound required more than three or four stitches.  She also had difficulties in manipulating broken bones back into place or conducting a physical examination which required her to lift or move limbs.  The injury has affected her confidence at work and she worried about the effect this would have on her patients.  According to the witness, Sue Bagley, arrangements have been made to accommodate these restrictions.  This was confirmed by the pursuer in evidence.  She was allowed a phased return to work gradually increasing the time spent on clinical work with an adjusted work pattern.  She was advised that if she had any difficulties she was to ask for assistance from the junior doctors on duty and report this to her line manager.  She has reported no such difficulties and since August 2015 has worked a normal shift pattern, again without any reports of difficulties.  In fact, she has never informed her employers of any need to utilise that support or complain about its adequacy.  She said in evidence that she has never been refused such support.  This is supported by the occupational health records for the pursuer (7/1 of the inventory of productions) which are agreed in terms of JM paragraph 6.  Occupational health (OH) is designed to assist managers and staff to deal with health and welfare issues, reducing staff absences and promoting a healthy and motivated workforce.  Managers can refer a member of staff to OH and a member of staff can self-refer.  OH will investigate the referral accessing medical, psychological and welfare resources to inform and provide advice and recommendations.  With regard to OH records for the pursuer (7/1 of the inventory of productions) the following are of significance:

(i)         letter dated 1 February 2012 from Gillian Gillespie, lead occupational health nurse to Neil Boyle, clinical nurse manager (Sue Bagley’s predecessor) on the pursuer’s phased return to clinical work, taking account of her skin condition and the measures to prevent a recurrence of her skin condition (page 102 of OH records);

(ii)        letter dated 15/10/12 from Dr Kalman, Consultant Occupational Health Physician to Neil Boyle on the results of the phased return to work and the adaptations made to accommodate the pursuers restrictions (page 111 of OH records), an extract of which is as follows:

“As I understand it, following an accident at work…there was a prolonged period of sickness absence and a management referral handled by the physio service.  There have been very real complications in Kathleen’s recovery, though she returned to work in October of last year and has increased to full time hours though remains with significant restrictions on her duties.

Kathleen informs me that her normal long shifts are now essentially split into different clinical and non clinical sessions with her being able to undertake full nurse practitioner clinical duties for between 2 and 3 hours at a stretch for returning to administration training roles.  I would certainly congratulate you and all involved in being able to accommodate this.  There is no doubt that Kathleen’s return to work has been of significant benefit to her.”


(iii)       letter dated 30 June 2014 (page 149 of the OH records) from Sue Bagley to the pursuer following a review meeting to discuss short term sickness absence.  The letter confirms the agreements made during the meeting that the pursuer would attend OH so that advice and guidance could be received on how to support her health at work, including the effect of the pursuer’s medication on her ability to work a 24 hour rota.  The letter notes the agreement that the NHS could accommodate the pursuer working core (8 hour) shifts which may alleviate some of the difficulties she was experiencing due to her medication.  It also noted that the pursuer felt that working a night shift was reasonable and achievable with another practitioner who could assist with any tasks she was unable to carry out and that a work place assessment was to be carried out “to establish which tasks, if any, you find difficult in order to establish how we may support you at work.”

(iv)       letter from Dr Kalman to Sue Bagley dated 3 November 2014 (page 141 of the OH records) noting that the situation has not changed significantly for a prolonged period and that there are very rare occurrences where there are large suturing requirements or some manipulations where the pursuer asks a colleague to undertake the specific task.  The letter notes that this led to a sensible decision by Emergency Department management that she should not be placed on shift as a lone practitioner.  It also notes that the pursuer has recently indicated that she is fit to undertake night shift duty.

(v)        work place assessment dated 11 November 2014 (page 137 of the OH records) the purpose of which is to review the pursuer’s work activities and identify any specific difficulties that the pursuer has in undertaking her job and any specific or general recommendations which may be helpful and supportive to enable the pursuer to undertake her full job role including the range of shifts.  At paragraph 7 of the assessment (page 139 of the OH records 7/1 of the inventory of productions) under the heading “Assessment” it is stated that:

“Kathleen is fit to carry out her normal duties and hours on the rota, with some occasional assistance.  She is currently carrying out all tasks/duties in her role as Emergency Nurse Practitioner with the exception of shoulder relocations, some heavy lower limb testing, and prolonged suturing.  During the assessment, a few issues were identified with corresponding recommendations related to continuing to support Kathleen in her role.”


In section 8 under the heading “Recommendations” it is stated that:

“1.    Kathleen is fit for her full substantive role including shifts with the support mechanisms below in place.  These are likely to be required in the long term as ongoing workplace support.


2.      It is recommended that Kathleen seek help/support during any shift where sustained/prolonged suturing is required or testing of lower limbs especially on particularly busy shifts with high patient turn over.  Support to be sought from other staff for suturing if more complex or longer time/more sutures required.  Continue to seek assistance when shoulder relocations require to be undertaken.  Other trained staff to assist as/when requested.”


It is therefore clear to me that suitable arrangements and adaptations, motivated by the pursuer’s best interests, have been made to her work pattern.  These have been informed by OH information and advice, to deal with the pursuer’s work restrictions caused by her injuries. 

[18]      Therefore, despite these arrangements and a willingness to make further arrangements and adaptations, within reason, if the need arises, is the pursuer unable to continue working as a result of her injuries?  The pursuer led evidence on this issue from Professor McQueen.  At pages 18, 23 and 29 of the transcript of her evidence, 6/14 of the inventory of productions, she stated that in her opinion the pursuer will be compromised in the labour market on a permanent basis in respect that she will be unable to undertake employment requiring heavier work, including manual handling of dependent patients, continuous gripping or continuous use of her hand.  At page 29 of the transcript she stated that if the pursuer continues to be employed in these capacities it is entirely reasonable that she seeks early retirement and that it is probable that as a result of her injuries she will not be able to continue working beyond the age of 61.  On being asked to explain the rationale for this the witness explained that from the point of view of patient care she is not going to be performing as well as she would be with such tasks and may put a patient at risk in that she may not reduce a fracture so well or she may not manage to reduce a dislocation, or if she is examining a heavy leg then she may not pick up the signs that you need to pick up when examining a patient (page 31).  At page 56 of the transcript, during cross examination, the witness confirmed that her opinion that the pursuer was compromised in the labour market was dependent on the work she was being asked to perform as a nurse.  She reiterates this at page 64.  There she confirms that she is not saying that the pursuer is unable to continue working and at page 79 she noted that the pursuer’s symptoms have not deteriorated in the last two years.  At page 86 she confirms that she would be able to continue working as a nurse if she did not do any manual handling, suturing, reductions or dislocations and anything which required sustained and continuous use of her hand.  It is therefore clear to me that Professor McQueen’s opinion on early retirement is dependent on the nature of the job.  As she stated, if the fine motor skills and heavy lifting were not required then she could continue working as a nurse.  It is noteworthy that Professor McQueen did not have access to the pursuer’s occupational health records on completion of her report or prior to giving evidence.  The records included the workplace assessment in November 2014 and the details of the adjustments and arrangements made to accommodate the restrictions as a result of the pursuer’s injuries.  Professor McQueen’s evidence properly analysed and understood, she is not of the opinion that the pursuer is unable to continue working as a nurse, her opinion is that she is unable to continue working as a nurse if no adaptations and arrangements were made to take account of the restrictions caused by her injuries.  The fact that adjustments and arrangements have been made would, applying Professor McQueen’s rationale, mean that she is able to continue working as a nurse.

[19]      Like Professor McQueen, Dr Stewart was not provided with the occupational health records in preparation of her reports and evidence.  She stated that when she saw her she was just managing.  She had never seen someone with CRPS that was able to work to retirement age and it was unlikely that the pursuer would work to retirement age.  When the relevant extracts of Professor McQueen’s evidence bearing on retirement age were put to her she agreed with her view and that retirement at 61 seemed perfectly reasonable.  She described this view as ‘informed guesswork’ and I agree with the submission made by counsel for the defender that there was a paucity of reasoning to support it.  I did not place much weight on this part of Dr Stewart’s evidence.  She did not have all the relevant information when she made her assessment of the pursuer’s retirement age and rather than provide a fully reasoned opinion she described her opinion as ‘guesswork’.  It is noteworthy that in her main report dated 13 March 2015 (6/12 of the inventory of productions) she only briefly addressed this matter at page 11 opining that for work she considered that the pursuer would not make it to retirement age.  The first reference to the age of 61 appears in a letter, 6/13 of the inventory of productions, dated 16 December 2015 which extends to two paragraphs and in respect of early retirement states that due to CRPS the pursuer would be unable to work past the age of 61 years.  This is due to the accident on 10 September 2011 (this is wrong as the accident took place in June) and if that had not happened, she could have worked to her normal retirement age of 65 years (this is wrong also as her normal retirement age is 66 years).  The point to be made here is that, as with her evidence, there is a paucity of reasoning for her opinion on early retirement in her written material.

[20]      The defender led evidence bearing on this issue from Jane McEachan, a Consultant Orthopaedic Hand Surgeon based at the Queen Margaret Hospital, DunfermlineAlbeit instructed very late in the day, she produced a report which is 7/7 of the inventory of productions.  She had strong clinical experience of treating wrist fractures and CRPS.  Her CV is 7/9 of the inventory of productions.  She had examined the pursuer and considered her occupational health records (referred to at pages 7/ 9 of her report).  She was broadly in agreement with Professor McQueen and Dr Stewart in respect of her hand injury and the long-term effects thereof, subject to one point which I will deal with further on.  She did not agree with them on early retirement and took the view that was no good reason why the pursuer should not continue working, providing the adjustments remained in place.  She took this view as she had been working for some time (circa five years) without significant problems.  The occupational health records pointed to no ongoing difficulties in doing her job as long as she continued to be supported and the adjustments referred to in the records were maintained.  She agreed that if support was withdrawn or there was a significant deterioration in her condition then there was a case for early retirement.

At page 11 of her reports she stated:

“Given the clinical findings and history, the current modification of her duties set out in the Occupational Health Records is reasonable and appropriate.  There is no evidence that these measures have been rescinded, and Ms Kathleen McLeish has been working for 5 years since her injury with apparent tolerance of her ongoing job modifications.  It is my opinion that any reduction in work efficiency with these ongoing modifications in place, is unlikely to be due to her ongoing symptoms.”


And in the section headed summary on the same page she opined as follows:

“(4) There is unlikely to be any deterioration in the condition of the left wrist with time.  I do not envisage any further improvement in the clinical picture with time.  The flexion contractures of the ring and little fingers are permanent.

(5) In my opinion, Ms Kathleen McLeish is able to continue working in her current post, with current modifications to her duties remaining in situ, until normal retirement age.”


I accepted the evidence of Ms McEachan on this issue.  I was impressed by her evidence which was given in an informed way and her opinions were rooted in the evidence.  She had taken the time and trouble, at short notice, to consider the occupational health records which provide a detailed record of the measures taken to adjust the pursuer’s work to accommodate the long term effects of her injuries.  Any opinions offered by the witness were made, having taken into account all relevant information and did not rely solely on the pursuer’s assertions, based on her perceptions, particularly where they were not supported by the OH records.  Her opinion and that of Professor McQueen seemed to me to converge on this point.  Professor McQueen’s opinion on early retirement was dependent on the nature of the job, as she stated that if the fine motor skills and heavy lifting were not required then the pursuer could continue working as a nurse.  This was broadly similar to the opinion of the witness Ms McEachan which was consistent with the fact that the pursuer had been doing the job, post injury, for around 5 years without significant difficulty.  She had been working a normal shift pattern since August 2015.  The selection of age 61 for retirement seemed to me to be arbitrary and contrary to the reality.  In addition I noted that no evidence, as distinct from the records, from occupational health witnesses was led bearing on this issue.  I did not detect any reluctance of Lothian Health Board (as represented by the witness Sue Bagley) to continue with the adjustments or make new adjustments, within reason, should the need arise.  The pursuer wants to continue working as a nurse practitioner which was admirable and consistent with her obvious dedication to her vocation as a nurse.  Should her condition change and worsen as a result of her injuries, then NHS Lothian, with the assistance and advice of occupational health, can look again at this issue.  However, on the evidence presented to me, bearing in mind that the onus of proof rests on the pursuer, for the foregoing reasons I was not satisfied that this aspect of the pursuer’s case had been proved.

[21]      There was a suggestion by Ms McEachan that some of her continuing symptoms were attributable to her shoulder, neck and back problems, unconnected to her fall.  This view was not shared by Professor McQueen and Dr Stewart who had been treating the pursuer for some time and had not raised this as an issue.  The pursuer had not raised this as an issue either.  The weight of their diagnosis was that her ongoing symptoms in her hand, wrist and arm were caused by her injury sustained in the fall and the development of CRPS.  Ms McEachan only raised this issue very late in the day and it seemed to me on this issue that the views of Professor McQueen and Dr Stewart, who had been treating the pursuer for her injuries for some time, should be preferred. 


[22]      The pursuer's past wage claim is agreed at £500, including interest (JM paragraph 10).  The pursuer's services claim is agreed at £1,000, including interest (JM paragraph 11).  The pursuer's claim for "other expenses" (dental treatment, mileage and gardener) is agreed at £2,000, including interest (JM paragraph 12).  As I have held that the early retirement aspect of the pursuer’s case has not been proved, the heads of claim in respect of future wage loss and pension loss do not arise.  I should add that there is no loss of employability either as the pursuer’s job is not at risk.  She is in a secure job and there is no suggestion that she will lose her job as a result of her injuries.  In fact, quite the opposite is true as NHS Lothian, in order to keep the pursuer working, made the necessary adjustments to her work.  According to her line manager, Sue Bagley, the pursuer is a valued nurse practitioner and nurse practitioners with the experience of the pursuer are highly sought after.  The difficulties experienced by NHS Lothian in recruiting experienced nurse practitioners bears this out.

[23]      With regard to solatium, the pursuer suffered a distal radius fracture requiring surgery and external fixation.  She developed CRPS and suffers constant pain and disability in her left hand and arm.  Her mood has been adversely affected and she has suffered a depressive disorder which is under control as a result of the medication prescribed.  Her social life and hobbies have been adversely affected as has her confidence in relation to the discharge of her duties as a nurse.  She finds driving difficult as a result of the ongoing pain. 

[24]      In my opinion, the circumstances of the present case are broadly in line with the type of injury classified as a less severe injury resulting in some permanent disability in chapter 7(H); Wrist Injuries of the Judicial College Guidelines, 13th edition (pages 49-50, sub-paragraph (c)) and moderate CRPS (towards the lower end of the scale) in chapter 8: Chronic Pain of the Judicial College Guidelines, 13th edition (pages 74 - 75, sub-paragraph (a)(ii)).  The descriptions given involves a claimant who has sustained less severe injuries (wrist injury) where these still result in some permanent disability as for example a degree of persisting pain and stiffness and in respect of CRPS where symptoms have persisted for some years but are more variable in intensity, where medication is effective in limiting symptoms and/or where the prognosis is markedly better, though not necessarily for complete resolution, may already have resumed employment and minimal, if any future care requirements.  The brackets given (with the 10 per cent uplift recommended by Sir Rupert Jackson) are between £10,530 to £20,490 (wrist injury) and £23,430 to £43,890 (CRPS).  A number of cases were cited to me bearing on this issue (Kerr v Steil Facilities Limited 2009 SLT 851, Ross v Fife Health Care NHS Trust 1999 Rep LR 75, Grant v Highland Council 2004 SCLR 1067, Burke v Royal Infirmary of Edinburgh NHS Trust Ltd 1999 SLT 539).  However, albeit there were similarities in these cases with the circumstances and injuries in this case, I did not consider the similarities to be sufficient for the cases to be used as authorities.  However, the cases were helpful in setting out the broad parameters in assessing solatium in a case of this type.  Applying the judicial college guidelines and taking a blended approach to avoid double counting (Sadler v Filipiak [2011] EWCA Civ 1728 at para 34) I consider that a reasonable figure for solatium would be £40,000.  This takes account of the development of the depressive illness.  One half of the award for solatium

should be ascribed to the past.  I shall award interest at four per cent per annum on £20,000 from the date of the accident until the date of decree (28 April 2017).  This amounts to £4,706.



[25]      For the reasons I have set out I have found the defender liable to make reparation to the pursuer in the total amount of £48,206.  That figure is made up as follows:



Interest on past solatium


Past wage claim including interest


Services, including interest


Other expenses, including interest





[26]      I have reserved all questions of expenses.