SCTSPRINT3

DAVID LYONS v. WM MORRISON SUPERMARKETS PLC


Submitted: 01 April 2010

OUTER HOUSE, COURT OF SESSION

[2010] CSOH 50

PD2285/08

OPINION OF LORD MALCOLM

in the cause

DAVID LYONS

Pursuer;

against

WM MORRISON SUPERMARKETS PLC

Defenders:

­­­­­­­­­­­­­­­­­________________

Pursuer: G. Lamont, Advocate; Thompsons

Defender: S. Bennett, Advocate; HBM Sayers

1st April 2010

[1] The pursuer is a 39 year old night stacker employed by the defenders at their foodstore in St Andrews. He stacks shelves and generally moves goods around the store. He has worked there since mid-2005. The present action concerns two incidents, one on 17 December 2005, the other about a month later. In both the pursuer sustained injuries to his lower back. After the first he was put on light duties. Following the second he was off work for two weeks, after which he was initially returned to light duties. Since then the pursuer has performed his normal duties, though he has continued to suffer low back pain of varying intensity throughout that period. The circumstances of the two incidents are not critical, given that liability is not in dispute. However in brief the first involved pushing a heavy pallet of coal on a trolley up a ramp; the second lifting a heavy pack of juice onto a shelf. Mr Bennett for the defenders indicated that the only issue in dispute between the parties is the assessment of solatium. The proof was conducted on that basis. Agreement had been reached on two other heads of claim.

[2] Mr R C Marks, a consultant orthopaedic surgeon, gave evidence during the pursuer's proof. He said that the accidents had accelerated the onset of what would have been inevitable low back pain given pre-existing degenerative changes in the pursuer's spine. Both incidents exacerbated low back problems which, without any specific trigger, had developed in early December 2005. The medical records for the pursuer disclosed that he had consulted his doctor in May 2003 complaining of upper back pain. An x-ray was taken and it revealed "early degenerative change in the mid and lower dorsal spine slightly more marked in the lower lumbar region". In October 2005 the pursuer complained to his doctor of backache/shoulder pain for one week. Mr Marks interpreted both the 2003 and 2005 episodes as indicative of thoracic, rather than low back pain.

[3] Until the accidents the pursuer was able to work out and body build on a regular basis. His capacity to walk long distances, sit for lengthy periods and play with his son have been restricted. His sleep is disturbed by lower back pain. However he has been able to carry out his normal duties at work. On examination Mr Marks detected tenderness in the lumbo-sacral junction and over the left sacro‑iliac joint. The pursuer looked fit and had full pain-free range of movement. Internal rotation of the left hip caused some left sacro‑iliac pain.

[4] In Mr Marks' opinion the very heavy pushing action required of the pursuer during the first incident, and the lesser strain on his back the next month, exacerbated the lower back pain which had developed in early December 2005. The result was chronic low back pain. For present purposes Mr Marks' key findings are to be found in paragraph 4 at page 5 of his report of 26 February 2009. It is in the following terms:

"The typical recovery time for a soft tissue injury of the lumbar spine is six to twelve weeks. The persistence of his pain, with the history of earlier spontaneous back pain, suggests to me that the index accident has advanced the otherwise inevitable progression of his low back pain, which is now due to underlying degenerative changes. The period by which his symptoms have been advanced cannot be determined by any scientific method. I have considered his youth and the limited previous history, and his previous high level of fitness. I have also considered his description of the nature of the stresses involved in the index accident, which seemed to have been unusually severe. Finally I have considered that by age 33 he had been shown to have early radiographic changes of spinal degenerative disease. As an approximation I would suggest that his present pattern of symptoms and the associated restrictions on his activities have been advanced by a period in the approximate range of 5 to 10 years."

[5] The defenders rely on a report dated 26 August 2009 from Mr M J McMaster, consultant orthopaedic spine surgeon. He noted the results of the x-ray examination, and that the pursuer had been complaining of low back pain for two weeks before the first accident. That accident "could have caused a mild soft tissue strain to his lower back possibly aggravating pre-existing degenerative changes at the thoraco-lumbar junction with referred pain into his left groin and testicles." Mr McMaster then described the subsequent incident and commented "It is likely that this activity aggravated the pre‑existing minor strain to his back but I would also have expected this to have resolved within a few weeks and I would not have anticipated any long term pain or disability". Mr McMaster noted that Mr Lyons was in the habit of performing weightlifting exercises four times each week. This could have precipitated similar symptoms in any event. In his report Mr McMaster offered the comment that "Mr Lyons tends to overstate his complaints which are non-specific". He expressed the opinion that it was likely "on the balance of probabilities" that within 6‑8 weeks Mr Lyons made a full recovery from any injuries which he may have sustained in the accidents. He is fit to continue with his work for the foreseeable future.

[6] During his cross-examination Mr McMaster revealed that in his lexicon there is a material difference between someone "exaggerating" his complaints and someone "overstating" them. The latter is a less serious criticism. Mr McMaster did not think that Mr Lyons was deliberately exaggerating. He did have some continuing symptoms. As the evidence continued it became clear that the key difference between Mr McMaster and Mr Marks was that Mr Marks was prepared to attribute the continuing back complaints to the work related stresses and strains, whereas Mr McMaster made no such concession. He considered that having regard to the vulnerability of Mr Lyons' back, and in the light of the nature of his work and his regular weightlifting, it was likely that the pursuer would have suffered similar continuing problems over the same period even if the accidents had not occurred. He assumed that the pursuer would have continued to lift very heavy weights, which would have imposed an even greater strain on his back. In Mr McMaster's view the direct effects were resolved within a short time. Thereafter continuing complaints could be attributed to other factors.

[7] Mr Marks was of the opinion that the accident not only exacerbated the back pain experienced from early December 2005, but advanced the otherwise inevitable progression of Mr Lyons low back pain, which is now due to the underlying degenerative changes. He found it difficult to be confident as to the period of advancement, but having regard to the pursuer's youth; his limited previous history of back pain; the nature of the stresses involved in the accidents, particularly the first one; his previous high level of fitness; and the results of the x-ray, he estimated that period of advancement at 5-10 years. In other words, but for the back strain at work, the present pattern of symptoms would have been delayed by 5-10 years. In his oral evidence Mr Marks made it clear that there is a high degree of uncertainty about this approximation, though he is confident that there has been a degree of advancement.

[8] In cross-examination Mr Marks was asked about the pursuer's body building activities. He noted that the pursuer had been doing this for many years. The stresses involved were not necessarily damaging. It was a controlled activity, whereas the work related strains resulted from uncontrolled and therefore more damaging events. The exercises may even have helped to keep Mr Lyons' back in a condition which allowed him to cope with the normal challenges of his heavy manual work. Mr Marks considered that Mr McMaster's findings on examination were typical for someone with mild mechanical back pain, such as the pursuer. Mr Marks accepted that the acute disability symptoms lasted for only a few weeks. However the key issue was the cause of the low grade mild but chronic back pain. He did not find any opinion on that issue in Mr McMaster's report. In that report there was an implication of fabrication on the part of the pursuer, or alternatively that it was purely coincidental that the onset of chronic symptoms occurred after the accidents. Mr Marks regarded the latter as an extreme position. If Mr McMaster was saying that the injuries sustained as a result of the accidents played no part in the timing of the onset of the pain caused by the degenerative changes, he would disagree. However, Mr McMaster had not really addressed the issue in his report.

[9] In cross-examination Mr McMaster was pressed as to his views on Mr Marks' analysis. It was put to him that if after the accidents the pain continued, it was because of the aggravation of pre-existing degenerative changes. He replied that it was a combination of the back strain and aggravation of the degenerative changes, albeit no structural damage was sustained. He agreed that his finding of mild tenderness over the lumbo-sacral junction was consistent with a diagnosis of continuing mechanical back pain. It was accepted that Mr Lyons had some symptoms, but he was overstating them. With reference to Mr Marks' opinion as expressed at paragraph 4 on page 5 of his report (quoted above), Mr McMaster accepted that it was a possibility that the index accident had advanced the otherwise inevitable progress of the pursuer's back pain. However Mr McMaster was at pains to stress that if the pursuer had not experienced the accidents at work he would have continued with a body building programme which could have caused exactly the same strains and stresses on the pursuer's back. For the degenerative changes to reach "a critical stage" a back strain was needed. It could have been provided by the weightlifting.

[10] It was suggested that pushing the heavy load of coal up a ramp was a very different activity from body building, but this was not accepted by Mr McMaster. He assumed that Mr Lyons was lifting heavy weights above his head. He is "widely read" on the subject, and 30% of such weightlifters experience stress fractures of the lumbar spine. Mr McMaster agreed that unusually severe stresses at work were likely to cause injury to the pursuer's back, but the same could be said of body building. He criticised Mr Marks' 5/10 years estimate as "being plucked from fresh air".

Submissions

[11] For the defenders Mr Bennett indicated that some of the heads of claim were agreed in the Joint Minute. While liability is not in issue, the parties remained in dispute on solatium. If Mr McMaster's evidence was accepted in full, then the court should make a nominal award in that the spine was at a "critical point" in December 2005, and if there had been no accidents at work the same acute symptoms would have been caused by body building. Understandably Mr Bennett did not present this submission with any enthusiasm or conviction.

[12] The next possibility is to limit solatium to the acute consequences of the accidents. According to Mr Bennett it was clear that Mr Lyons tends to "over-egg the pudding" when discussing the severity of his complaints. He narrated numerous examples of this in the evidence. Thus the court should assume that limited acute consequences ensued from the first incident. It did not even cause a period off work. After the second incident Mr Lyons' doctor recorded that the symptoms were "largely resolved" by early February 2006. The pursuer gradually returned to full duties. Until his very recent accident, the pursuer had not been off work for even one day. Again it should be held that the complaints of pain and restricted activity over the last few years have been overstated.

[13] In June 2006 the pursuer wrote a letter to his employees (production 7/10). It was in response to a query as to why he had not mentioned a neck injury sustained in the army in the body of his original job application. In his letter Mr Lyons stated that "his lower back pain had recovered" and that he was "up to speed". He worked with "extreme loads" in the juice department and was "coping fine at that point." On the basis that the attributable symptoms were fully resolved by this time, Mr Bennett submitted that solatium should be assessed at about £1,500. Reference was made to Stewart v North Lanarkshire Council 1998 SLT 419.

[14] If that approach was not accepted it was then necessary to assess Mr Marks 5/10 years hypothesis. Mr Bennett drew attention to the pursuer's evidence about his very recent injury and its consequences. On any view it was reasonable to view this as a supervening event which overtook any adverse consequences attributable to the events in late 2005/early 2006. Further the pursuer's tendency to overstate matters rendered it difficult to draw firm conclusions as to his true condition and disabilities over the last few years. There are substantial uncertainties as to the severity and frequency of his symptoms. He worked on strenuous duties more or less throughout this period. The evidence as to the extent to which he relied on painkillers was contradictory and unsatisfactory. The only firm conclusion that could be drawn was that the pursuer stopped his body building exercises, but otherwise it should be held that relatively little impact on his lifestyle had been proved.

[15] In any event, if the pursuer had continued body building, and given the degenerative changes in his spine, Mr McMaster's evidence was that it was likely that this regime would cause him to experience back problems. Mr Marks' assertion that the body building was of no relevance was "incredible". Mr Lyons experienced low back pain in early December 2005, which pre-dated the first accident. Mr Bennett acknowledged that there are imponderables on both sides of the equation. In such circumstances the appropriate award for solatium would be in the range of £2,500 - £6,000. Reference was made to O'Kane v C J Pearce & Co Ltd; Kemp & Kemp F6‑021.

[16] For the pursuer Mr Lamont accepted the range of appropriate solatium awards mentioned by Mr Bennett. There was an initial back strain which aggravated a pre‑existing degenerative condition. When examining the pursuer, both experts found evidence of continuing back problems. Unlike Mr McMaster, Mr Marks was, where appropriate, willing to concede ground under cross‑examination. There was not a great deal between the two experts, but where they differed Mr Marks should be preferred. He gave his evidence in a reasonable, moderate and balanced manner. He offered a clear view and narrated the factors and the reasoning upon which the opinion was based. The report from Mr Johnson, which was agreed to represent his oral evidence (production 6/8), demonstrates that the pursuer's back was subjected to unusually severe stresses in the course of the accidents, especially when moving the coal pallet. Mr McMaster did not directly contradict Mr Marks' analysis. Rather he offered an alternative mechanism which could have caused the same ultimate outcome. The pursuer had been body building for some 18 years. At best it was speculative to say that Mr Lyons was or would have been injured by lifting weights. Mr Lamont asked the court to award solatium in the sum of £6,000, with interest at 8% on 90% of that sum. He reminded me of the agreement on two other heads of claim.

Decision

[17] Liability is not in dispute. I have no difficulty in holding that at a minimum the pursuer is entitled to damages for the immediate acute consequences of the accidents. The real issue between the parties is whether the continuing chronic problems, however they should be categorised, are attributable to the accidents. On this matter I accept the evidence of Mr Marks. I agree with Mr Lamont that Mr Marks gave his evidence in a moderate and considered fashion. In his report Mr Marks addressed the key issues in a direct and clear manner. He set out the factors and the reasoning which underpinned his opinion. In an expert report, it is usually the reasoning, not the opinion itself, which is persuasive. I agree with Mr Marks' assessment that Mr McMaster's approach implies either a coincidence or a complete fabrication by the pursuer. While the pursuer may well be prone to a degree of overstatement, Mr McMaster did not deny that he had continuing problems in his lower back. Nonetheless in his report Mr McMaster did not offer a clear view on the question of the pursuer's continuing complaints. Ultimately he insisted that any consequences of the work related accidents ended with the acute episode. However, in my view Mr McMaster offered no persuasive reason for that approach. Many of his responses in cross‑examination stressed the likelihood that the continuing problems would have occurred in any event as a result of the pursuer's body building regime which, but for the accidents, would have continued and would have placed severe strains upon his already vulnerable spine. In my opinion this was at best speculative. There was no direct evidence as to the nature of Mr Lyons' body building regime. In any event, to my mind it is of considerable importance that it was not these exercises, but rather the work-related stresses and strains which caused consequences of sufficient severity to interfere with the pursuer's duties. There is no evidence that weightlifting had caused any material problems in the past, and no sufficient basis for the proposition that it would have done so either in early 2006 or thereafter.

[18] As the x-rays showed, Mr Lyons did have a weakened spine, and given the nature of his employment it was to be expected that from time to time he would have episodes of back pain. Also it should be acknowledged that even without accidents at work, at some stage the degenerative changes allied to general stresses and strains would have resulted in at least mild chronic low back pain. I consider that the pursuer has proved that since 2006 he has suffered from a chronic condition of mild low back pain. The direct consequences of it have varied from time to time. To his credit he has managed to continue in physically demanding manual handling duties, at least until his most recent injury. I am satisfied that the back strains sustained in late 2005/early 2006 have played a material part in the early onset of the chronic problems. I reject the proposition that body building would have caused similar problems over much of the same timescale. The pursuer had been body building for many years without apparent difficulty. It is a controlled activity and the pursuer's body would have been used to it. The evidence demonstrated that it was the uncontrolled strains imposed by the accidents at work which triggered the longer term consequences. This suggests that there was something about the particular tasks which the pursuer was called upon to undertake which caused the injuries which have contributed to the continuing problems. I accept Mr Marks' evidence that there is no good reason to conclude that a regular, controlled and familiar exercise regime would have caused similar chronic low back pain over the same timescale.

[19] I can understand Mr Bennett stressing the pursuer's letter of June 2006. However, when read in its context it is likely that it was an example of the pursuer understating his problems. Given the question that had been posed by his employers, he had a motive to emphasise his fitness and his ability to continue with his duties.

[20] One of the impressive features of Mr Marks' evidence was his readiness to concede the uncertainties in his estimate of 5/10 years advancement of chronic low back pain. I accept that a degree of advancement of such symptoms was caused by the defenders' negligence. However I consider it reasonable to identify the injury sustained by the pursuer shortly before the proof as a cut off point for these purposes. In other words the consequences of the defenders' negligence have now been superseded by other factors. I agree with Mr Bennett that there are a number of imponderables as to the true extent of the pursuer's symptoms since the end of the acute episode. It would be reasonable to proceed upon the basis of mild chronic mechanical low back pain which, while troublesome and sufficient to stop the pursuer's body building regime and restrict other activities, was not of such severity as to cause material interference with his physically arduous employment.

In all the circumstances I consider that a reasonable assessment of solatium would be £5,000, with interest at 4% per annum on all of it from 1 January 2006 to the date of decree, with interest thereafter at the judicial rate. There falls to be added the minor heads of claim as agreed in the Joint Minute of Admissions. These are net loss of earning at £592.38 and services at £250, both with interest at 8% per annum from 6 February 2006. Decree will be pronounced accordingly. In the meantime all questions of expenses will be reserved.