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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kinross v Sterling Precast Ltd [2001] ScotCS 233 (11 October 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/233.html Cite as: 2002 SCLR 397, [2001] ScotCS 233

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[1] In this action, which came before me for proof before answer, the pursuer, who is thirty-three years of age, seeks damages against the defenders, in respect of injuries he alleges he suffered as a result of the work he was employed by the defenders to do, during a period of approximately eleven years, from 1984 to 1995.

[2] The evidence, at the proof, established that the duration of approximately eleven years, during which the pursuer worked with the defenders can, in turn, be broken into two distinct periods, reflecting the different capacities in which he was employed and the different type of work he was employed to carry out during those periods. Throughout the whole period of eleven years, the pursuer was employed at the defenders' premises at Spring Kerse Works, Stirling. From about 17 May 1984, until approximately the beginning of 1990, the pursuer was employed as a banksman/labourer. In carrying out that particular job, he was required, among other things, to lift manufactured precast concrete products, such as door and window lintels, beams and flights of stairs, which were manufactured by the defenders. In particular he was required to lift these products from sheds, where they had been manufactured, out into a yard, where they would be collected, and to stack them prior to collection. He was also required to assist with the loading onto vehicles, of these products, once they had been stacked in the yard. In carrying out these tasks the pursuer was invariably assisted only by one other work colleague.

[3] After about the beginning of 1990, the pursuer was engaged by the defenders as a loader/shunter. In that capacity the pursuer was required to help with the loading of lorries which were used to deliver the defenders' products to customers. The defenders' concrete products were placed on pallets, which then were loaded onto the rear of the lorries by means of cranes. The pallets, however, had to be, on occasion, manually guided, onto the back of the lorries, by the pursuer. In doing so he had to exert significant physical effort. Moreover, on occasions, once the pallets were on the rear of the lorries, the pursuer would require to move them around to make more space or to distribute the load. This was done with the use of a metal pole being inserted under pallets and being used as a lever.

[4] The pursuer maintained that he frequently drew to the attention of his employers, the defenders, the need to have further assistance in carrying out the foregoing tasks, whether by more men being available to assist, or by mechanical means being provided, but that no such assistance was ever forthcoming.

[5] I heard evidence from Mr Sidney Greasly, who is a former factories inspector, and now works as an engineering consultant, specialising in the giving of advice in the area of health and safety at work. He prepared a report, which is no. 6/8 of process, after having interviewed the pursuer about the nature of his work and having examined the defenders' premises and seen the processes and the work which were carried out there. Put shortly, Mr Greasly's evidence was highly critical of the defenders' failure to provide the pursuer with adequate assistance, either human or mechanical, in carrying out the lifting and manoeuvring operations he was required to perform. His criticism also covered the defenders' apparent failure to have carried out any risk assessments and to give employees, such as the pursuer, proper instructions in lifting and manoeuvring techniques.

[6] The pursuer pleads a case of common law fault, breaches of the Factories Act 1961 and breaches of the Manual Handling Operations Regulations 1992. At the close of the proof, senior counsel for the defenders, informed the Court that the defenders were not disputing that there had been common law breaches of duty and breaches of the statutory provisions relied upon by the pursuer.

[7] The remaining areas of controversy between the parties which I have to determine, are as follows:

1. Whether the pursuer's claim is time barred;

Senior counsel, for the pursuer, accepted, at the close of the proof, that the pursuer had failed to prove that he had sustained disc damage. I should also record that during the proof, the pursuer's counsel sought, at times, to introduce a case based on some condition involving an abnormal psychological reaction by the pursuer to his alleged injury, both by seeking to lead evidence in relation to such matters and by seeking to amend the pleadings to include such a case. These attempts were strenuously opposed by counsel for the defenders on the basis that absolutely no notice had been given of such a case and that no expert medical evidence, in the shape of reports or the like, had been lodged, in advance of the proof, which began to support such a case. While there was some exploration, in evidence, of the possibility of such a condition arising in cases of persons who suffered back injury, this was allowed by me, having noted the defenders' objection thereto, and subject to all questions of relevancy and competency. In the event, the pursuer's counsel ultimately did not pursue these attempts to introduce such a case further, relying entirely on establishing that the pursuer had suffered, and continued to suffer, from a physical condition described in the pleadings as "dysfunctional or mechanical back pain syndrome" which it was claimed evidenced itself in a number of specific symptoms and a severe degree of disability, resulting in the pursuer's total unfitness for work.

[8] At the close of the proof the position, as advanced by the pursuer's counsel, as I understood it, was that the pursuer's back condition had been caused by a cumulative process of damage to his back, over the whole period when he was employed by the defenders, and as a result of the heavy lifting tasks he had been obliged to perform during that period. This damage, it was maintained, culminated in his back "giving way" when he was weeding in his garden on 6 August 1995. The pursuer had sustained the injury in the garden during his summer holiday from work, which had commenced on 28 July 1995. The defenders' breaches of duty had continued right up until the last day on which the pursuer had attended for work. It is on the basis of the foregoing hypothesis of fact, upon which the pursuer's counsel relied, at the close of the proof, that I turn to deal with the question of limitation. Counsel for the defenders, while in no respect conceding the factual basis upon which that hypothesis was founded on, addressed the question of limitation, on that hypothesis, and submitted that, even if the hypothesis of fact were to be found to be established, the pursuer's claim was time barred.

[9] I consider that it is of some significance that the pursuer, in seeking to establish his case on the merits, was forced to maintain that he was suffering from significant back pain throughout the whole period from 1984 to 1995. It is, however, noteworthy that in Article 9 of Condescendence, his position in that respect was originally somewhat different. It was stated there on his behalf as follows:

In the course of the proof the pursuer was allowed to amend the words "from 1986 to 1990" to read "from 1986 to 1995".

[10] As far as the incident on 6 August 1995 in the garden is concerned, the pursuer's evidence was that he was bending down to pick out a weed when he got "This awful pain in my back and I couldn't move". He went on to say that "I thought it would have eased off. I never got the doctor in to the next day, I thought it was just one of these things that you'd be able to work through". He was then asked this -"Had you any problems prior to this when you felt something wrong with your back but you thought you would be able to work through it" and he replied "Quite a lot of the time. You couldn't afford to take time off". His comment when the following question was put to him "What about in the period 1990 to 1995, did you have any times when you were feeling something wrong with your back and you thought you would work through it" was "Eh, quite a lot of the time".

[11] The pursuer, on the day following the incident in the garden, namely 7 August 1995, called out his GP to see him. The doctor, who attended, on that occasion, was a locum, Doctor Alison Reid. The entry in the general practitioner's records relating to her visit on that day (no. 6/2 of process) is in the following terms "Mechanical low back pain (working in garden yesterday)". The entry noted that the pursuer had a full range of movement although there was pain present, his straight leg raising was normal and he had no bowel or bladder problems. He was prescribed a pain killer and given advice on bending. The pursuer continued to suffer from back pain and went to see his general practitioner, Doctor George Hardie, on 11 August 1995. The entry in the general practitioner's records relating to that visit is in the following terms "Still problems with back". The entry then refers to lumbosacral strain and raises the possibility of early left sciatica. The GP noted that the pursuer was a concrete worker involved in heavy manual work. It is, I consider, significant that no mention is made in that entry of the incident in the garden and the focus appears to have been on the nature of the pursuer's work. The general practitioner, Doctor Hardie, gave the pursuer a sick line for two weeks. The pursuer, thereafter, reported to his general practitioner on a number of occasions in August and September about his back. The entry for 14 September 1995 refers to the pursuer having twisted his back again while bending. At some point in September 1995, Doctor Hardie referred the pursuer for an x-ray examination at Stobhill Hospital. The pursuer maintained, in evidence, that when he went to obtain the results of the x-ray from Doctor Hardie, sometime in early October 1995, it was suggested to him that the back problem he was suffering from, was work related. Doctor Hardie's evidence, however, was that he had no specific recollection of having told the pursuer that this back problem was work related but he did acknowledge that, in the course of conversation, during the pursuer's consultations with him, the nature of the pursuer's employment would have been discussed. In cross-examination, however, the pursuer said that when he experienced back pain, during the period he was employed by the defenders, he thought it was due to the heavy nature of his work and that his was so particularly in relation to the period 1984 to 1990. He also said in cross-examination that when he consulted Doctor Hardie on 11 August 1995 "It was in the back of my mind it might be something to do with the work but I was always led to believe with the other doctors it was muscular". The present action was served on the defenders on 27 August 1998.

[12] The pursuer had, in October 1996, completed a form seeking legal advice from his Trade Union. In that form, no. 6/10 of process, the pursuer stated that he had last worked for the defenders on 28 August 1995. It was submitted that the pursuer's solicitor had taken that date as being correct and had, accordingly, taken the view that the triennium would expire on 28 August 1998. It was accepted, on behalf of the pursuer, that the date of termination of work given by the pursuer was incorrect. He explained his mistake, in evidence, by saying that he had thought that the date of termination of his work was the date on which he was due to return to work after his summer holiday break. It was pointed out, by counsel for the defenders, that, in fact, the pursuer was due to return to work, on 14 August on the basis that he had been on a two week break commencing on 28 July. The pursuer appeared somewhat uncertain, in his own mind, as to the date on which he was due to return to work after his summer holiday.

[13] It is now necessary for me to seek to apply the provisions of Section 17 of the Prescription and Limitation (Scotland) Act 1973 to the circumstances of the pursuer's case. Section 17 provides:

[14] On the hypothesis of fact relied upon, by the pursuer, in bringing his claim to the Court, the breach of duty on the part of the defenders continued until the last date on which the pursuer attended at work, which was on or about 28 July 1995. For the purposes of Section 17, therefore, the issue, in this case, is when should it have been reasonably practicable for him to become aware of the facts specified in Section 17(2)(b). The pursuer's counsel urged me to hold that that was no earlier than 3 October 1995. I agree with senior counsel for the defenders that it was reasonably practicable for the pursuer to know somewhat before 3 October 1995, that the injuries, in question, were sufficiently serious to justify his bringing of an action of damages against the defenders and it was, in fact, reasonably practicable for him to know this, at the latest, by or about 11 August 1995 when he required to return to see his general practitioner, after having been visited by the locum on 6 August 1995. It did not seem to me that anything occurred between then and 3 October 1995, which, as I have said, was the date upon which the pursuer's counsel urged me to consider that the triennium began to run, for the purposes of Section 17(2)(b), which placed the pursuer in any better position, having regard to these matters than he had been, or should have been, on 11 August 1995, particularly having regard to the fact that the x-ray which had been taken on or about 3 October did not reveal any significant structural injury to his back. Put another way, nothing in the medical evidence placed before me suggested that the fact that the alleged injury could be attributable to the fault of the defenders was something that emerged only on or about 3 October 1995. With particular reference to the provisions of Section 17(2)(b)(ii), which refers to the knowledge that the injuries were attributable, in the whole or in part to an act or omission, the pursuer, in my judgment, cannot avoid the evidence he himself gave in support of his case on causation, that for a period of eleven years, prior to the incident in the garden, he had suffered significant and continuous back pain, which he attributed to his heavy lifting work with the defenders. As I will discuss in greater detail, in dealing, in due course, with causation, the medical records of the pursuer for the period 1984 to 1990 indicate clearly that he was having problems with his back, which at times involved him having to take time off work, and which were being attributed to the nature of his work. During the period 1990 until 1995 there is no record of his ever having attended his general practitioner concerning back problems, but his own position at the proof, supported by his wife, a fellow employee, John Service and a neighbour Robert Dalziel, was that he continued to suffer from back pain during that period, which he attributed to his work, just as had been the case in the preceding period. The pursuer claimed that the reason for his not having gone to the doctor to report this, or for not having taken off work during the period 1990 to 1995, was that he was not able to afford time off, because he had got married and had a young child and a wife to support. On that basis of fact, it appears to me that it should have been reasonably practicable for the pursuer, armed with that history and knowledge, to have been aware that his alleged injuries were attributable, in whole or in part, to acts or omissions of the defenders, no later than 11 August 1995, when he consulted his general practitioner Doctor Hardie. In this respect it is significant, in my opinion, as I have already noted, that the record of the pursuer's visit to the general practitioner on that day made no reference to the garden incident but did refer to the nature of the pursuer's work. It is furthermore significant, in my view, that nothing in the medical records up to, and

[15] The pursuer's counsel submitted that if I did not accept that the time bar did not begin to run until 3 October 1995, as was contended on his behalf, I should, nevertheless, exercise the discretion conferred by Section 19A of the 1973 Act and allow the claim to proceed. The relevant statutory provisions are as follows:

[16] In considering whether or not to exercise the discretion conferred by this provision, I take as the starting point the fact that, had the pursuer correctly filled up the form, no. 6/10 of process, which he passed to his Trade Union in November 1996 and had stated in that form that he had ceased working on 28 July 1995, it is highly probable, that the solicitors, into whose hands the form ultimately came, would have raised the action by 28 July 1998. The form, in question, had an entry which stated "Date and time you ceased to work". The pursuer, wrote against that enquiry "on 28 August 1995". In evidence, he explained, as I have noted above, that he did so because he thought he ceased to work with the defenders at the end of his holiday period, which was either 14 or 28 August. It was urged, on behalf of the defenders, that the pursuer should not be relieved from the consequences of his own mistake. Moreover, it was contended that he had failed to aver, and prove, that those acting for him were not, to any extent, at fault, in failing to investigate the matter more carefully and that he had no remedy against them. In deciding whether or not to exercise the discretion conferred by Section 19A, the correct approach for the Court to take is to see where, having regard to all the relevant circumstances, the equities lie - compare Forsyth v A.F. Stoddart & Co Limited 1985 SLT 51 and Anderson v Glasgow District Council 1987 SLT 279. In the Forsyth case supra the action was raised forty-eight days outwith the triennium, due to an oversight in the office of the solicitors acting for the pursuer. The defenders averred that the pursuer, in the circumstances, would have a valid claim for professional negligence against the solicitors. The pursuer admitted that he "would have a valid claim for damages for negligence against his former solicitors and that any award made would be satisfied" see opinion of Lord Dunpark at page 57, second column - page 58 first column. There is no such admission in the present case. The pursuer's averments (in Article 9 of Condescendence) on this matter are as follows:

The defenders' averments on this matter (in answer 9) are as follows:

What the solicitors, acting for the pursuer, knew or ought to have known, or what they did or should have done on receipt of the form, which had been completed by him, was not explored in evidence before me. In that state of affairs I cannot be satisfied that the pursuer would have had, in the circumstances, a clear and straightforward claim against his solicitors for professional negligence. The pursuer, in averment, alleges that the mistake was his and his alone. It is true that no authority was placed before me where, in the face of a mistake of this nature having been made by the pursuer himself, the Court, nevertheless, exercised its discretion, in his favour under Section 19A. I am of the opinion, however, that such a mistake does not automatically foreclose the exercise of the discretion. Whether or not it does must depend on the whole facts and circumstances, including, in particular, the reason for the mistake and how excusable, or otherwise, it was. In the present case, the pursuer is a person of limited education and intelligence. I am satisfied that his mistake in completing the form in the way he did was certainly understandable, having regard to the fact that he was on holiday at the time of the incident in the garden, and that the mistake cannot be regarded as grossly culpable, particularly having regard to the fact that on the form it was stated that any claim must be made within three years of date of accident and against the entry "date and time of accident" the pursuer had written "over a twelve year period". I have held that the triennium expired on 11 August 1998. The delay therefore involved in raising the action outwith the triennium was only some seventeen days. I accept, as the authorities make clear, that the Court may refuse to exercise its discretion under Section 19A, even where the period that has elapsed from the date of the expiry of the triennium is very short. There are, however, in the present case, some additional factors which, taken together, with the relatively short period of time, which elapsed from the expiry of the triennium, until the raising of the action, persuade me that I should exercise my discretion in favour of the pursuer. Those factors are firstly that it was not submitted, on behalf of the defenders, that they were ever really in a position to suggest that they had any defence in relation to breach of duty and that secondly, they did not contend, far less establish, that they were, in any way, prejudiced in the preparation of their actual defence to this case, by reason of the delay of seventeen days that arose after the expiry of the triennium. Those factors, taken together with the fact that it cannot be said that it is even probable that the pursuer would have had an alternative claim against those advising him, lead me to consider the equities lie with the pursuer and that I should exercise the Section 19A discretion in his favour and allow the claim to proceed, notwithstanding the expiry of the triennium.

[17] On the merits of the case the battle was fought on whether or not the pursuer had established, on the balance of probabilities, that the problems he says he has suffered from, and continues to suffer from, in his back, were caused, or materially contributed to by the admitted acts and omissions of the defenders. Much time was spent on this aspect of the case in exploring two matters. The first was whether or not heavy lifting at work, of the sort indulged in by the pursuer, would ever cause injury of the sort claimed by the pursuer, or not. This is a controversial matter which I ultimately do not need to resolve. The other matter which was explored, at great length, was whether or not, and if so, to what extent, the pursuer was exaggerating his symptoms. At the close of the proof, the pursuer's counsel accepted that the pursuer had been guilty of a degree of exaggeration, from time to time, in describing his symptoms and in the way he presented his condition to others. As I will go on to explain, I am entirely satisfied that the pursuer was guilty of a very considerable degree of exaggeration. Ultimately, however, the main question for me, in the context of this case, was whether the pursuer had proved, on the evidence led, that his symptoms were, to any extent, caused, or materially contributed, to by the work he had had to carry out for the defenders during the period 1984 to 1995, as opposed to what had happened to him in the garden when he was weeding, on 6 August 1995. In relation to this question I was favoured with the evidence of five orthopaedic specialists. They were all at one in maintaining that there was no evidence of any structural malfunction in the pursuer's back. CT scan and x-rays of the pursuer's back were, as one of the defenders' witnesses, Professor Dickson, put it, "squeaky clean". Four of the orthopaedic experts concluded that, having considered what was discovered in examination of the pursuer and all the relevant facts and circumstances, it could not be said that the symptoms complained of by him, after the incident on 6 August 1995, and the disability he presented himself as suffering from, could be attributed to work related back injury.

[18] The pursuer led only one orthopaedic witness, namely Mr Andrew Kinninmonth, who is an orthopaedic surgeon, practising from Stobhill Hospital and Glasgow Royal Infirmary. He was the pursuer's treating surgeon and had examined the pursuer on a number of occasions, during 1996 to 1997. He had recommended physiotherapy and attendance at a back school to the pursuer, which the pursuer failed to follow up. When he examined him, in particular in July 1997, Mr Kinninmonth recorded (no. 6/1 of process), that the pursuer gave a clear history and allowed examination without exaggerating his symptoms. He noticed that the pursuer had some muscle spasm and that this was indicative of general pain being suffered by the pursuer. Mr Kinninmonth gave his opinion, at that time, in the following terms:

He went on to say that "I believe that his work had contributed to his back pain syndrome and certainly caused it to be aggravated". It examination in chief, Mr Kinninmonth said it was still his view that the pursuer's work had certainly contributed to his back pain syndrome. Mr Kinninmonth examined the pursuer in 1999 for the purposes of providing a report to the Independent Tribunal. On this examination, he observed a significantly greater degree of disability, but came to the conclusion that the pursuer was exaggerating some of his physical responses to the examination. He considered that the pursuer was still suffering from some back pain but was less convinced, than he had previously been, that the pursuer was not exaggerating matters. This witness found it difficult to say whether the exaggeration was deliberate or unconscious. Mr Kinninmonth, in cross-examination, said that his diagnosis was mechanical low back pain, contributed to, or aggravated by the pursuer's work, and that this diagnosis stood, even though the pursuer had not reported any back problem to his general practitioner during 1990 to 1995. Mr Kinninmonth said that the pursuer had told him that he still had back pain during 1990 to 1995 and Mr Kinninmonth accepted this because, when the pursuer so informed him, he considered that the pursuer was genuine and reliable. Mr Kinninmonth accepted that he would normally have expected that someone like the pursuer, sustaining the strain he had sustained, when working in the garden, would have recovered from the effects of it in about twelve weeks. Senior counsel for the defenders, objected to the pursuer's senior counsel seeking to explore, with this witness, the possibility of the pursuer having developed a psychological condition, as a result of any initial injury to his back. Ultimately, as I have previously noted, counsel for the pursuer did not seek to rely on such a case. Nevertheless the defenders' objection, having being noted, this witness did give some evidence in relation to the possibility of the pursuer having developed such a condition. Mr Kinninmonth did accept that if the pursuer did not have symptoms during the period 1990 to 1995, contrary to what he believed the position to be, he would have found it difficult to say that there was any correlation between the pursuer's work and what he experienced in his back in the garden in August 1995 and thereafter. Ultimately this witness's position in re-examination was as follows:

He went on to say that he did not believe the pursuer to be a malingerer but that he was someone who had "taken on the role of an invalid or self-helplessness".

[19] There was led, on behalf of the pursuer, Doctor Richard Graveling who is an ergonimist. This witness spoke to various studies which suggest that back pain can be caused by the effect of heavy work. He, very fairly, however, said that he would defer, in the present case, to medical opinion as to the cause of any back problem from which the pursuer might be suffering. Similarly, the witness Sidney Greasly spoke to studies, and reports, which made a connection between chronic back pain and heavy manual work but, he, too, accepted that he would require to defer to the opinion of medical witnesses with the regard to the cause of the pursuer's condition.

[20] The four orthopaedic surgeons led, as witnesses, for the defenders were unanimous in their conclusion that in the pursuer's case, any problem which he experienced with his back, after the weeding incident in August 1995, was attributable to that incident and could not be said to have been caused, or materially contributed to, by the tasks he was required to perform at work, by the defenders, prior to that incident. Moreover, they were of the opinion that any such problems should have resolved themselves, within a relatively short period of time, after the garden incident and that since then, the position had been that the pursuer had been grossly exaggerating, if not manufacturing, his problems.

[21] I was particularly impressed by the evidence given by Mr Ian McKay, consultant orthopaedic surgeon at the Nuffield Clinic, Glasgow. Mr McKay has twenty-four years' experience in orthopaedics. He examined the pursuer, on behalf of the defenders, in December 1999. He had, at that time, access to the pursuer's medical records, with the exception of the general practitioner's records from 1984 to 1990. At the time of Mr McKay's examination, the pursuer was using crutches. Mr McKay observed that he could not think of any obvious situation where he would recommend the use of crutches for the relief of back pain. Among other things, which Mr McKay noted on examining the pursuer, was the fact that there was no muscle wasting in the pursuer's lower limbs and the muscles in the upper limbs were well developed. In a report prepared after his examination of the pursuer, and spoken to Mr McKay in his evidence at the proof, which is no. 7/6 of process, Mr McKay stated as follows, at page 7:

Having observed that there were no physical signs of any structural damage to the pursuer's back, Mr McKay continued:

Mr McKay then went onto record that, on examination, the pursuer displayed marked features of inappropriate illness behaviour which were not consistent with purely physical disease. He concluded that:

Mr McKay's reference to "no significant back pain for the previous five years" was based on the absence of any attendance by the pursuer during that period at his general practitioner, complaining of back pain. This witness said he had some considerable doubts as to whether chronic low back pain could ever be caused simply by heavy lifting at work. While Mr McKay accepted that the pursuer, during the period 1985 to 1990, may have suffered a series of soft tissue injuries to his back, there was simply no evidence that these were other than self resolving and there was no evidence that, cumulatively, they had caused any permanent damage to the pursuer's back. When it was put, in cross-examination to Mr McKay, that, contrary to what he had thought, when he examined the pursuer, the pursuer had been complaining of back pain during the period from 1990 until 1995, although not reporting this to his general practitioner, and that if that were so, the pain experienced in 1995 after the garden incident would more likely to have been contributed to by previous problems stretching back to 1984, Mr McKay accepted that that could be so if all the pain experienced during the period 1990 to 1995 was as severe as it had been before that time. In re-examination, Mr McKay, said that even if the pursuer had been complaining to his wife and others during the period 1990 to 1995 about back pain, he would have found it very remarkable that, having regard to the physical nature of the pursuer's work, he was able to attend work, during that whole period, and had not required to be seen by his general practitioner about his back if, in fact, he was suffering from any significant back pain during that time. In that situation he said he would find it remarkable that any problems after 1995 were a continuum of what had happened in the latter half of the previous decade. Had there been cumulative damage to the pursuer's back, occurring over the ten year period, because of work related injuries, Mr McKay said he would have found it quite remarkable that the pursuer was able to continue working from 1990 to 1995, on a daily basis, lifting or manoeuvring heavy loads, without requiring to take time off work. The much more likely situation was that the incident in the garden had caused an independent minor back injury, which had resulted in back pain, which should have resolved itself in a matter of weeks. I should repeat, at this stage, that the pursuer, his wife, a neighbour, Mr John Service, and a fellow employee Mr Robert Dalziel all gave some evidence that, during 1990 to 1995, the pursuer did, from time to time, refer to his having some back pain. I am satisfied, however, that any back pain experienced, during that time, however, was minor, occasional and of the sort that any person indulging in heavy lifting might have expected. I am satisfied that the reason why the pursuer did no report to his general practitioner, complaining of back problems during that period, when he had been regularly reporting to his general practitioner complaining about his back during 1984 to 1990, was due to the fact that he was no longer suffering any significant problem with his back. I did not believe him when he said that the reason he did not report to his general practitioner during 1990 to 1995 was because he could not afford to take time off work. I consider that, having seen and heard the pursuer, give evidence, he would have had no hesitation in reporting to his general practitioner, with any significant problems he was experiencing with his back during 1990 to 1995. The reason that he did not do so was because, in my opinion, he had no significant problems during that period. On that basis, I found compelling, Mr McKay's conclusion that the pursuer had not demonstrated that there was any causal connection between his back condition post August 1995 and his work, and that any pain he experienced in August 1995, and thereafter, wa

[22] Evidence was also led from Mr Thomas Kerr, who is a consultant orthopaedic surgeon at the Abbey Kings Park Hospital in Stirling. He had examined the pursuer, on behalf of the defenders, in June 1997. This examination was simply for the purpose of determining whether the pursuer was able to return to work or not. This witness was led by the defenders, because there was a reference in Mr McKay's report to his having seen a report from Mr Kerr, relating to the examination carried out by Mr Kerr in 1997. This witness said that, when he examined the pursuer in 1997, he was of the opinion that he was exaggerating his symptoms. His opinion in that respect had subsequently been confirmed and it was now his view that the pursuer was grossly exaggerating his problems. Contrary to the view of Professor Dickson and, perhaps, also Mr McKay, this witness did consider that chronic back pain may arise from a weakening, over time, of the muscular structure in the back, by reason of heavy manual work, which could mean that there is an increased likelihood of recurrence of further weakness, which might be triggered by a relatively trivial incident. His view, however, was that this had not happened in the pursuer's case. He reached this conclusion, both with regard to what he had himself observed in examining the pursuer in 1997, and what he had seen in video evidence of the pursuer walking and moving about, without being aware of his being observed (to which I will refer shortly), taken together with the fact that the pursuer had taken no time off work at all during 1990 to 1995 due to back problems, and did not consult his general practitioner during that time about any such problems. Any scarring of the back muscle, which Mr Kerr accepted might have occurred during 1985 to 1990 must, in his opinion, have healed during the period 1990 to 1995 and did not contribute to any back problem the pursuer might have suffered from, after the weeding incident in August 1995. This witness was of the opinion that the pursuer was engaged in a deliberate deception in relation to his symptoms.

[23] The final orthopaedic specialist to give evidence was Mr Thomas Mann. He had examined the pursuer for the defenders, on 23 October 1998. His report in relation to that examination is no. 7 /1 of process. He had also had access to some of the pursuer's medical records and reports relating to him. Mr Mann produced a subsequent report dated 19 March 1990, no. 7/2 of process, after receiving the full medical records relating to the pursuer. His conclusion was that the pursuer had suffered a commonplace lower back strain, when weeding his garden in August 1995. While, he, unlike Professor Dickson, considered that repeated heavy lifting at work could ultimately cause damage to the back, he considered that the damage in question would be skeletal structural damage and not damage to the muscle of the spine. Mr Mann saw no good reason for the pursuer resorting to the use of crutches for his back pain. He spoke to the pursuer exhibiting a whole range of inappropriate signs or features on examination. He accepted that the pursuer had probably suffered a small osteopathic type of lesion, when weeding his garden, but did not consider that there was any reasonable basis for the complaints the pursuer reported to him, at the time of the examination by Mr Mann, which was some three years and three months, after the incident in the garden. Mr Mann said that he had not seen any evidence in 1998 or, indeed, since that time, that the pursuer's back had been damaged by his work. On being referred to Mr McKay's report, Mr Mann said that he and Mr McKay were essentially in agreement about the pursuer and had reached the same conclusion. Mr Mann thought that the five year gap between 1990 to 1995, when the pursuer had made no complaint to his general practitioner about back problems was very significant. He agreed with Mr McKay that if there had been continued significant problems in his back, the pursuer would have been complaining to his general practitioner during that time. Mr Mann was of the view that the pursuer may be a person who had initially deliberately dramatically exaggerated or invented his back pain, and then had become to believe in its existence and extent.

[24] The cumulative effect of the evidence led from the defenders' orthopaedic expert witnesses, other than Mr McKay, was in accordance with Mr McKay's evidence which I had, in any event, found compelling. I could find no good reason for preferring the evidence of Mr Kinninmonth to that overwhelming weight of evidence, given by those witnesses. I have little hesitation, therefore, in considering that the pursuer has failed to establish, on the balance of probabilities, that he has been suffering, since 1995, from a back condition, which was caused by the work he was obliged to carry out in the performance of his duties, as an employee of the defenders.

[25] All of the orthopaedic experts who gave evidence, at the proof, including Mr Kinninmonth, were unanimous, in detecting, to a greater or lesser extent, either exaggeration, or deception, by the pursuer in describing his symptoms or on presenting his condition. Their opinions with regard to the extent of exaggeration or deception were either completely confirmed, or fortified, when they considered the video evidence, to which I have made previous reference, of the pursuer walking and moving about, when he was unaware of being observed, and which was placed before the Court and of which a great deal was made by the defenders. The evidence consisted of two videos. When he was examined by Mr McKay in December 1999, the pursuer told him that he had been unable to go anywhere outside his house during the previous two years, without the use of crutches. The first of the two videos, no. 7/4 of process, was taken in December 1998. It showed the pursuer leaving his home, in the early morning, with his wife and travelling by car to his general practitioner's surgery. They later went to a shopping centre and the video showed the pursuer getting out of the car, without any crutches, and proceeding to lift the boot up, without any apparent discomfort, so that shopping could be placed in the boot. The second of the two videos, no. 7/5 of process, was taken on 2 October 1999. It showed the pursuer leaving his home at about 11.55 am with his young son and wife. It showed him, on arriving at his car, placing his crutches on the back seat of his car and then getting into the car, without any apparent difficulty. He then travelled to his mother-in-law's house, which is apparently about a five minute drive away. A relatively steep flight of stairs leads up to the home of the pursuer's mother-in-law. There was no video film of the pursuer ascending those steps, but he accepted that he had ascended them without crutches, and this was confirmed by a witness who had been involved in the covert videoing of the pursuer. The video showed the pursuer coming out from the mother-in-law's house at about 1.38 pm holding his young son with his right hand, and carrying a bag with his other. He descended the steps without the use of crutches and without holding onto the banister. He walked down the steps without any apparent difficulty. His explanation for being able to walk up and down the stairs, without crutches, and without any apparent difficulty, was that he had some good days and some bad days. When it was pointed out to him that when he left his own home he had been walking with crutches, and yet, some minutes later he was able to walk without them, he said that this was because the painkillers he had taken before leaving his home were beginning to have their effect. The pursuer was forced to accept that, in the light of this evidence, he had not been reporting the position correctly to Mr McKay when he said that he had been unable to walk without crutches for two years, prior to December 1999. All the orthopaedic witnesses, including Mr Kinninmonth, on viewing these videos, were of the opinion that the evidence contained therein, in particular that of the second video demonstrated that the pursuer had been grossly exaggerating his symptoms, and his degree of disability, when he had undergone the various examinations conducted by the specialists. Those who had examined him had already noted a wide range of inappropriate signs such as groaning and grimacing. The video evidence simply confirmed their view about the pursuer's exaggeration or deception, or fortified those views.

[26] I am, accordingly, entirely satisfied that the pursuer, for whatever reason, or from whatever cause, has been grossly exaggerating his difficulties since 1995. It may be that, as Mr Mann suggested, this has come about partly consciously and partly unconsciously. I take the view that, even if the pursuer had established that any problem he experienced in his back after 6 August 1995, was caused or contributed to by his work activities, the only injury he had sustained thereby was a soft tissue back strain, self-limiting in character, the symptoms of which should have disappeared in about three months. While senior counsel for the pursuer, in his submissions, at the end of the proof, accepted that the pursuer had been guilty of an element of exaggeration of his symptoms and disability, he nevertheless, invited me to hold him to be, generally speaking, credible and reliable. He pointed to the detailed evidence given at the proof that, since 1995 the pursuer's lifestyle had been completely transformed. He was now taking a whole range of drugs to relieve his pain, to help him sleep and to deal with depression. He and his wife had virtually given up all the social life which they had enjoyed before 1995. He was very dependent on his wife to assist him with tasks, such as getting out of bed in the morning, getting dressed and getting in and out of the bath. He had worn out a TENS machine, which is a heat producing device, which he applied to his back, and which gave him some relief. He had now obtained a replacement for that machine and had continued to use this replacement. It was really inconceivable that a young and fit man, who was previously a regular and keen worker, would subject himself to such a lifestyle, unless he had genuinely suffered the pain and disability he claimed in the present case, at least to a significant extent. The problem for the pursuer, in my judgment, however, in relation to all of this, is that all the orthopaedic specialists who have considered his case, consider that he was, to a greater, or lesser extent, exaggerating, or fabricating, his symptoms and I was certainly left in the situation of not being able to find him to be a credible and reliable witness in respect of these matters. None of the orthopaedic specialists, apart from Mr Kinninmonth, was prepared to accept that, even if any injury, arising out of the weeding incident, was caused, in turn, or materially contributed to, by the pursuer's work activities, the pursuer should have suffered from any material symptoms, beyond a period of three months or so after that incident, and I have decerned no good reason to reject the majority view in this respect.

[27] Since I have already held that the pursuer has failed to establish causation, in his case, the defenders fall to be assolzied. In case, however, I am wrong about the issue of causation and the matter is to proceed further, I require to address the question of damages. A joint minute, covering a number of matters was lodged on behalf on he parties. It includes agreement relating to the pursuer's average net weekly wage prior to August 1995, wage loss between 11 August 1996 and 1 March 1996 and wage loss to 30 December 2000. There is also agreement concerning the net annual wage which the pursuer would now be earning had he remained in the defenders' employment. In terms of the joint minute parties are also agreed about the pursuer's pension loss claim. In addressing the question of quantum, in his closing submissions, senior counsel for the pursuer contended that, having regard to the evidence, there were three possible "scenarios". The first was that the Court should hold that the pursuer had established that his back complaints, as spoken to by him, were substantially proved and were wholly attributable to the defenders' negligence or at least materially contributed to by that negligence. If this were the case, he submitted that damages should be awarded to the pursuer on the following basis. In the first place, it was submitted that an award should be made, of solatium of £18,500 half of which should be attributable to the past, which, with interest would bring out a total sum of £20, 681. In making his submission regarding solatium senior counsel referred me to the awards made, or suggested, in the cases of Burke v Royal Infirmary of Edinburgh 1999 SLT 539, Leebody v Liddle 2000 SCLR 495 and Marsh v Kirwen ; Kemp and Kemp Volume 3 para. E3-025. On the basis of the agreement embodied in the joint minute, past wage loss should be awarded at a some of £ 55, 220 (inclusive of interest). Having regard to the evidence led relating to the pursuer's future prospect of obtaining employment, future wage loss should be calculated using a multiplicand of £8,500, which was the figure agreed in the joint minute, as being the annual net wage, the pursuer would have been earning had he continued to be in the employment of the defenders, and a multiplier of fifteen, bringing out a total of £120,500. A report had been lodged on behalf of the pursuer, which had been compiled by Mrs Verity Marshall of Buckle and Grant Disability and Employment Consultants. This report covered the needs of the pursuer in respect of the provision of services and equipment, etc., on the basis of the degree of disability reported to Miss Marshall by the pursuer being correct. This witness had spoken to her report at the proof. Senior counsel, for the pursuer, submitted that, if the first scenario was found by the Court to be appropriate, then an award of £5,575 should be made in respect of services provided by the pursuer's wife for the period from August 1995 to 14 December 1999 in accordance with Mrs Marshall's evidence but with a 2/3 discount being made to her calculations to take into account the actual evidence given at the proof. Bringing that figure up-to-date, and applying interest, made a total for past services and interest of £9,321. As far as future care costs were concerned, senior counsel for the pursuer submitted that a multiplier of twenty would be appropriate, having regard to the pursuer's age and the possibility of his wife predeceasing him and also the possibility of future improvement in his condition. It was submitted that the appropriate multiplier, taken from Mrs Marshall's evidence, and discounted by 2/3 would be £ 1, 162 per annum making a total of £ 23, 240 for future care costs. A claim under Section 9 of the Administration of Justice Act 1982 was made under refe

[28] On the hypothesis that the pursuer had established causation, but that there was an element of exaggeration of his symptoms, senior counsel for the defenders, in his submissions, challenged the figure for solatium and suggested that it should be £15,000 under this scenario. He pointed to evidence given on behalf of the pursuer, by Mr Peter Davies, an employment and vocational rehabilitation consultant, to the effect that part-time work might be available for the pursuer in the future with earnings of approximately £5,743 per annum. Senior counsel for the defenders, therefore, submitted that future wage loss should be calculated by reference to a multiplicand of £2,757 which, with a multiplier of fifteen, would bring out a total wage loss of £41,355. Senior counsel for the defenders also submitted that if the pursuer was fit for some future part-time work, the figures for the provision of future services to him required to be modified on a "broad brush basis". As far as the supply of aids and equipment and loss of services under Section 9 were concerned, he submitted that global figure of £10,000 would be appropriate. Had I been of the view that causation had been established, and that there were continuing problems experienced by the pursuer in his back, which were work related, and which endured from August 1995, and continued until today, although there was an element of exaggeration by him, I would have made an award on the basis proposed by the pursuer's counsel, but with the modifications proposed on behalf of the defenders, which I have just noted.

[29] The second "scenario" put forward by senior counsel for the pursuer, as I understood it, relied on the Court accepting that up until the time that Mr Kerr had seen the pursuer and examined him on 30 June 1997, all the pursuer's complaints had been largely genuine and had been based on work related injury so as to enable Mr Kerr to conclude that he was not fit to return to work. I do not accept that to be the case, however, since Mr Kerr in his evidence made it clear that, having seen the video evidence he was now of the view that the pursuer had been involved in a deliberate deception of him when he had examined him on 30 June 1997. The basis upon which this scenario, as I understood it, was based, is, therefore, one which I reject. I should, however, record that in relation to this second scenario, counsel for the pursuer submitted that the appropriate figure for solatium would be £5,000. He did so under reference to the awards made, or suggested in the cases of Conetta v Cumbernauld Development Corporation 1987 GWD 25-934, McGinn v Motherwell District Council 1996 SCLR 359 and Young v Greater Glasgow Health Board 1993 SLT 721, together with McEwan and Damages page 434/4. Interest on that sum to date was stated to be £1,600. It was submitted that past wage loss under this scenario, taken up to 30 June 1997 would be £11,355 which, with interest, of £2,650 would give a total sum of £14,005. Adjusting the figures for services, set out in the Verity Marshall report, to bring out a cut-off date at the end of June 1997 produced a services claim of £6,838 which it was accepted should be discounted by 2/3 bringing out a figure of £2,277. Interest thereon would amount to £531 and so the total for services under scenario 2 would be £2,808. The global amount of damages sought under this scenario accordingly amounted to £29,038. It did not appear that there was any claim made under this scenario for the cost of aids and equipment. I did not understand senior counsel for the defenders to challenge the figures proposed under this scenario or the arithmetical calculation of those figures. But as I have said, in any event, it is a scenario which I do not consider was established, on the evidence, even if causation had been proved and, accordingly, I reject it.

[30] The third scenario put forward, on behalf of the pursuer, by his counsel, was predicated on the incident in the garden having caused pain, which although it was precipitated, or cumulatively contributed to, by his heavy work, ought to have settled within six to twelve weeks. On this scenario a figure of £2,000 for solatium was suggested by senior counsel for the pursuer, under reference to the cases of McCormick v City of Edinburgh District Council 1993 SLT 1123 and Leask v City of Glasgow District Council 1993 SLT 674. With interest on that sum, the total figure for solatium with interest put forward was £2,467. Wage loss for the period to 3 November 1995 would have been £393, which with interest thereon, would give a total under this head of £484. Using the figures from the Verity Marshall report, no. 6/3 of process, a claim for services for a period of two to three months would justify a total award of £400, inclusive of interest, under this head. The global figure, under the proposed scenario three, for damages, would, accordingly, be £3,351. Senior counsel for the defenders had no quarrel with the figures proposed under this suggested third scenario. Had I, therefore, found that the pursuer had established the necessary causation between his alleged injury and the defenders' breaches of duty I would have awarded him damages in the figure suggested, on his behalf, by senior counsel in respect of the third scenario because I am satisfied that the overwhelming weight of the medical evidence was to the effect that even if the injury, in the garden, had been exacerbated or precipitated by weakness of the back, induced by his work, this should have resulted simply in back pain being experienced by the pursuer for a period of approximately twelve weeks.

[31] In the whole circumstances I shall sustain the second plea-in-law for the pursuer, the fourth plea-in-law for the defenders, and assoilzie the defenders.