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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Phillips v Kvaerner Govan Ltd [2001] ScotCS 284 (11 December 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/284.html Cite as: [2001] ScotCS 284 |
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Justice Clerk Lord Reed Lord Clarke
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XA75/00 OPINION OF THE COURT delivered by LORD REED in APPEAL From the Sheriffdom of Glasgow and Strathkelvin at Glasgow in the cause PETER PHILLIPS Pursuer and Respondent; against KVAERNER GOVAN LIMITED Defenders and Appellants: _______ |
Act: Armstrong, Q.C.; Lindsays, W.S. (Pursuer and Respondent)
Alt: Stacey, Q.C.; Simpson & Marwick, W.S. (for Bradley Campbell & Co., Greenock) (Defenders and Appellants)
11 December 2001
[1] On 31 May 1995 the pursuer and respondent was injured in an accident at the shipyard where he worked. He subsequently brought the present action of damages against his employers, the defenders and appellants, in Glasgow Sheriff Court. It is a matter of admission that the accident occurred through the fault and negligence of the defenders and that they are liable in damages to the pursuer. The only issue between the parties is the quantum of damages. After proof the sheriff awarded the pursuer the sum of £139,061. That award is the subject of the present appeal.
[2] In relation to the circumstances of the accident and its effects upon the pursuer, the sheriff made the following findings:
"3. On that date [vide the date of the accident] at about 1.30 pm the Pursuer was in the employment of the Defenders as a plater and was working in the course of his employment in the said shipyard. He was carrying out work on the engine room floor of a vessel under construction. He was in a crouching position. He was wearing a safety helmet. Above him was a scaffold staging which extended a considerable height into the funnel. As he worked there a wooden staging plank of about six to eight feet in length fell a significant (though unknown) distance through the said staging. It struck him end-on in the back of the neck, and may first have impacted on the back of his head. On impact the Pursuer placed his hand or hands on the decking and prevented himself falling. He then partly raised himself and fell heavily on to his buttocks. He raised himself again and was restrained by his workmates. His limbs were moving uncontrollably. His eyes were rolling. He was mumbling incoherently.
4. The Pursuer was taken by ambulance to the Southern General Infirmary, Glasgow. He has no recollection of the accident. His first recollection thereafter is of being spoken to by a doctor in the infirmary. He suffered concussion in the accident and impairment of consciousness lasting at least to his examination in the infirmary. He was detained overnight for observation and discharged the following day with a cervical collar.
5. Prior to the accident the Pursuer had no history of back pain or leg pain.
6. On his discharge the Pursuer felt general pain all over but particularly in his neck, left shoulder and arm. He was prescribed painkillers by his General Practitioner. After about two weeks the pain in his neck, shoulder and arm subsided and the Pursuer became aware of pain in his lower back. He has continued since then to suffer low back pain. From about February 1996 the Pursuer began to suffer pain in his right leg. He has since then suffered pain in his legs, especially his right leg, with some loss of sensation in the back of the right leg and sole of the right foot.
7. The accident caused compressive forces to be transmitted through the axis of the Pursuer's spine (either from the force of the plank striking his neck or from his falling heavily on his buttocks), resulting in an injury to the L4/5 or L5/S1 disc, which injury is the cause of the pain in the Pursuer's lower back and his right leg (in respect of which see findings-in-fact below).
8. Concussion caused by the accident led to the onset of depressive illness in the Pursuer, which in turn has led to him experiencing an intensity of pain and physical symptoms which he would not have experienced as a result of his physical injury alone. The depressive illness also resulted in sleep disturbance, increased irritability, increased obsessional features, anxiety and a tendency to worry and complain."
In relation to the financial consequences of the accident, the sheriff made the following findings:
"9. The Pursuer was in continuous employment as a plater for approximately twenty-eight years prior to the accident. He was in the Defenders' employment as a plater for the seven years immediately prior to the accident.
10. For a period of approximately seventeen years prior to the accident the Pursuer had a part-time occupation as a self-employed agent for Shopacheck Financial Services Ltd. The business of Shopacheck is to provide small cash loans, credit for household goods and household goods on credit. Their customers are in the main persons on low or modest incomes. The Pursuer's duties were (1) to call at the homes of customers in order (a) to enter into transactions on Shopacheck's behalf and (b) to collect cash payments (the terms of payment being usually weekly or fortnightly) from them; (2) to record transactions and to enter sums collected on a payment card, and to enter sums collected on the customer's receipt book kept by the customer and initial same; (3) to enter all financial transactions on a weekly sheet; (4) to pay receipts into the bank weekly; (4) to attend the Greenock branch office weekly to discuss the business.
11. The Pursuer had a 'book' of customers, mainly in Port Glasgow with some in Greenock. The number of customers varied from time to time. Before the accident there were possibly seventy to eighty customers on the book. Some households contained more than one customer. The area covered by his book is characterised by steep slopes. The pursuer's practice was to use his car to visit customers homes. Having parked, he would visit several nearby customers. He would repeat this procedure to complete his round. He carried out these rounds on Monday and Friday evenings after his work with the Defenders, and on Saturday mornings. Including time spent on record keeping, these duties occupied him for something in the region of six hours per week. He visited the branch office mainly on Tuesday evenings. His remuneration was by commission of seven per cent on cash collected and five per cent on sales.
12. The pursuer continued to consult with his general practitioner, Dr. Gray, in the months following the accident when the pain which he experienced appeared to increase. He attended a course of physiotherapy from the end of August 1995 until late February 1996, and a hydrotherapy course of six weeks duration. Neither course significantly relieved his pain.
13. His experience of pain in the back and legs continued to increase in intensity. He had difficulty in walking more than short distances. He was in discomfort when in a seating position for more than ten minutes or so.
...
17. Following the accident the Pursuer returned to work as a plater with the Defenders for one week only between 21st and 25th October 1996. He was in pain and acute discomfort as a result of attempting to perform the duties allocated to him. His pain and discomfort were a consequence of his condition caused by the accident. Thereafter he declined to return to work with the Defenders. He has not worked as a plater since. His employment with the Defenders was terminated by them on 20th December 1996.
18. According to the terms upon which the Pursuer undertook agency work for Shopacheck, he was not entitled to obtain any form of benefit or remuneration while sick. It was the policy of the Greenock branch manager, Mr. Cooke, to cover for the absence of agents such as the Pursuer if it was likely that they would return to the agency within a reasonable period of time. If an agent was unable to return to work within a reasonable period of time he or she would be expected to resign the agency.
19. For a period from the accident until around the end of July or beginning of August 1995 the Pursuer was unable to carry out his normal part-time duties with Shopacheck. He may intermittently have carried out a small proportion of his usual work during that period. His duties were in the main covered by Mr. Cooke and by a section manager, Mr. Smith.
20. The Pursuer returned to regular duties within his said agency at around the end of July/beginning of August 1995.
21. The Pursuer experienced difficulties in attending to his said duties. He had pain in his back and his legs. He walked slowly. He found walking upstairs difficult. He suffered spasms of pain which caused him to stop and rest periodically. He had to rely from time to time on the assistance of Mr. Cooke and Mr. Smith to complete his duties. By around August 1996 he felt unable to cope any longer with that occupation and he resigned his agency. He has not since then worked for Shopacheck.
22. As a result of his injuries and depressive illness arising from the accident the Pursuer is permanently unfit to return to work as a plater or to any other form of heavy work.
23. As a result of his injuries and depressive illness arising from the accident the Pursuer is currently unfit to return to light work of the nature of his duties in Shopacheck. There is a slight prospect that the Pursuer may become sufficiently fit to carry out light work of that nature at a later date.
24. As a result of the accident the Pursuer has suffered from depression and irritability. His social life has become curtailed. He no longer indulges in former recreational activities, such as swimming, do-it-yourself home improvements and bowls, which he previously enjoyed. He has become obsessive about the small details of living in the home, and intolerant with his family."
[3] In the light of these findings, the sheriff assessed solatium at £13,000, of which 70 per cent was attributed to the past. Past loss of earnings was assessed on the basis that, but for the accident, the pursuer would have continued working as a plater for the defenders, and as a debt collector for Shopacheck, until the date of decree. Future loss of earnings was assessed on the basis that it was probable that the pursuer would have experienced redundancy as a plater well before retirement age, and that a multiplier of three years should therefore be applied in respect of his continuing wage loss. In relation to his loss of earnings from Shopacheck, a multiplier of seven years was applied on the basis that there was a possibility that the pursuer might become fit for that or similar light work.
[4] In the present appeal the defenders challenge the sheriff's findings of fact: in particular, his findings that the pursuer has suffered continuing and disabling pain and depression as a consequence of the accident, rendering him unfit for work. The defenders invite this court to re-assess the evidence for itself and to reach the conclusion that the pursuer suffered only a minor injury from which he quickly recovered, and that his complaints of severe pain and disability since then have been feigned. Alternatively, they invite the court to conclude that any pain, disability and depression from which the pursuer has suffered since a few weeks after the accident have been the consequence of a spinal condition which is unrelated to the accident. We consider these matters in detail below. At the outset, however, it is appropriate to recall the very limited circumstances in which an appellate court is entitled to take a different view on facts from the judge who heard the evidence, especially where credibility is in issue. It is sufficient to refer to the well-known passage from the speech of Lord Thankerton in Thomas v. Thomas, 1947 S.C. (H.L.) 45, at pages 54 to 56.
[5] In support of the defenders' appeal, counsel focused on two matters: first, the sheriff's treatment of the issue of the credibility of the pursuer's evidence; and secondly, the sheriff's treatment of the evidence of certain expert medical witnesses. We shall consider each of these points in turn.
[6] The credibility of the pursuer's evidence, and in particular the veracity of his complaints of pain and disability, was a major issue at the proof. The defenders' position, as expressed in their pleadings, was that the pursuer had suffered only a minor injury, from which he had made a complete recovery within four weeks. His continuing complaints were fabricated, and he was fit for work.
[7] In dealing with the issue of credibility, the sheriff took as his starting point the impression which the pursuer had made upon him while giving evidence. The sheriff said in this regard:
"He and Mrs Phillips attended proceedings throughout and took a very close interest in them. I therefore had the opportunity to observe them throughout the equivalent of almost three weeks. They were always smartly and appropriately dressed. They conveyed the impression that they took the proceedings seriously. The most striking feature of the Pursuer's deportment when he was called to give evidence was the odd gait which he adopted as he approached the witness box - self-consciously throwing one foot forward before putting the weight gingerly on it. I say that the gait was adopted, and that indeed was the Pursuer's evidence, for he said that it was something which he did deliberately to cope with a lack of sensation which he said he had in the sole of his right foot. The contents of the medical histories taken from him (he being the source) might suggest that he was of rather limited intellect. That was not quite my impression of him. His evidence was careful and, I thought, relatively articulate. He was measured in tone - with the important exception of one passage of his evidence. That was when he was questioned about his recent psychiatric examination by Dr Sykes. He became animated and showed acute embarrassment at the suggestion that there might be a psychological or psychiatric component to his incapacity. It was a wholly genuine, pained, response, important because it was consistent with Dr Sykes' analysis that the Pursuer was reluctant to admit to, and address, psychological problems. It seemed to me that if he was feigning incapacity as unscrupulously as the Defenders contended simply in order to win substantial damages, then the suggestion of a psychological component is one which he would have seized with alacrity. Instead, he demonstrated genuine emotional resistance - revulsion might be the better term - at the prospect of admitting what is probably the strongest feature in his case. This on its own is a significant factor in favour of the genuineness of his claims. I found nothing in his demeanour to suggest to me that he was deliberately untruthful in his evidence".
The sheriff's reasoning in this passage of his Note was criticised by counsel for the defenders. It was said that the sheriff was not entitled to draw a favourable inference as to the pursuer's credibility from the fact that he attended the proceedings throughout and was always smartly dressed. We do not consider that the sheriff did so. The relevance of the pursuer's having attended the proceedings throughout is explained by the sheriff in the next sentence: it enabled the sheriff to observe the pursuer for almost three weeks. As for the pursuer's mode of dress, while that would not in itself directly warrant any conclusion as to credibility, there is no reason why it should not form one of the infinite range of circumstances, often intangible, which can influence an observer in gaining an impression as to the genuineness or otherwise of a witness's account. Whether a witness does or does not show respect for the legal process may, for example, be material to an assessment of credibility, and mode of dress may be one way in which respect, or the lack of it, can be expressed. Counsel for the defenders also criticised the sheriff for attaching significance to the pursuer's reaction to the suggestion that his incapacity might have a psychological or psychiatric element: it was said that the sheriff had failed to explain why that reaction was significant. It appears to us, however, that the sheriff has given a rational explanation: he was satisfied that the pursuer's reaction was genuine, and it appeared to the sheriff to be a reaction which was not to be expected of someone who was feigning incapacity as unscrupulously as the defenders contended, for the sake of obtaining damages.
[8] The sheriff next considered particular aspects of the pursuer's evidence in relation to which his credibility was challenged, in order to assess them with reference to the evidence of other witnesses. The first such matter concerned false statements admittedly made by the pursuer when making claims for insurance and state benefits. In relation to this matter, the sheriff said:
"The Pursuer agreed that he has made false statements with regard to a number of matters. Firstly, in respect of claims for state benefits he admitted in evidence that at a time when he was continuing to work with Shopacheck he signed declarations that he had not worked since the accident, or since his previous claim. Secondly, he admitted in evidence that he submitted a claim for indemnity under an insurance policy with Direct Line which covered loan payments on a Royal Bank of Scotland bank loan against the eventuality of his being unable to work; and that he did not inform the insurers of his work with Shopacheck. These are admissions which are potentially harmful to his credibility on other matters, and require that in other material areas his evidence has to be approached with caution. Neither situation is, however, quite as straightforward as it at first sight may appear. In relation to both matters the Pursuer's position was that he regarded his two occupations as entirely separate and distinct. He said that it did not even occur to him to consider that his accident with the Defenders had any bearing at all on his work with Shopacheck, or that it opened up any claim for loss of earnings in that occupation. He regarded them as totally separate questions. That position has some support in the fact that a claim and averments in respect of the loss of his earnings from the latter source did not emerge by way of amendment in the present action until relatively late in the day. So far as the state benefits were concerned, his position was that they would in any event be repaid from compensation which he expected to receive from the Defenders. As for the insurance policy with Direct Line, he said that he thought it was entirely unnecessary to inform the insurers of his earnings with Shopacheck since his claim was in respect of his loss of wages from the Defenders. He also said that he assumed that the insurers would know of his Shopacheck activities because he had put full details of them in his loan application form to the Royal Bank, Direct Line being their subsidiaries. None of these explanations attracts the approval of this court, but on the other hand from the viewpoint of someone in the Pursuer's position it cannot be said that they were altogether an irrational approach. With some prompting from his counsel the Pursuer expressed his regret at having acted in this way. Looking to the whole tenor of his evidence, it seemed to me that notwithstanding his expression of regret he continued to feel a degree of justification in choosing to treat those matters in the way he did. None of that is to be condoned and indeed I condemn it, but I think it is proper to draw a distinction between false statements to obtain what he thought his by moral right, and false statements to claim that to which he knew he had no moral right."
[9] Counsel for the defenders criticised the sheriff for drawing such a distinction, and submitted that the sheriff had failed to deal with the admitted dishonesty of the pursuer as indicative of his willingness to lie when he perceived that it would be to his advantage. We reject that criticism. The sheriff appears to us to have dealt with this issue with care. His assessment that the pursuer was someone who would be prepared to behave dishonestly when he felt that dishonesty was justified but not in other circumstances drew a distinction which cannot be regarded as irrational or irrelevant. The sheriff plainly appreciated the need to approach the evidence of such a witness with caution, and it is indeed apparent from his note as a whole that he relied primarily on the evidence of other witnesses whose credibility he regarded as irreproachable.
[10] The next aspect of the evidence to be considered concerned the date of the pursuer's return to work with Shopacheck. In relation to this matter, the sheriff said:
"The Defenders' contention is that he returned almost immediately after the accident and that he is dishonest when he says (as he did in his evidence) that he did not return until the end of July or the beginning of August 1995. The foundation for that attack on his credibility comes in the form of a number of customer payment books which the Defenders, through agents employed by them, recovered from those customers. I have heard evidence in relation to the recovery of those books, which took place during the course of the proof. I need not rehearse it, but I am well satisfied that the books were fraudulently obtained by false representations to the customers to the effect that they were required for an investigation into possible financial irregularities. Having heard submissions on law on the matter, I determined that notwithstanding the impropriety of their recovery I would admit their contents into the evidence. They contain entries of transactions, showing details of weekly or fortnightly payments, dates and the signature of the collector. The Defenders rely on entries apparently dated prior to July 1995 and showing the Pursuer's signature (he concedes his signature) among other signatures. The Pursuer's explanation was that the books were initialled by him at a later date, after his return to work. Evidence from a handwriting expert, Mr McCrae, was neutral in relation to the competing contentions. The Pursuer's account received support from Mr Cooke. That witness also supported the Pursuer in relation to two types of receipt which bore the Pursuer's signature. As part of his duties the Pursuer from time to time carried cash for cash loans to customers, or 'Choice Vouchers', which could be exchanged by customers in shops for goods to their face value, and were therefore treated as the equivalent of cash. It was established in the evidence that in terms of Shopacheck's financial procedures it was a strict requirement that an agent receiving cash or vouchers required to sign for the former a 'loan float IOU', and for the latter a receipt. The evidence of Mr Cooke was that, as the branch manager of many years standing, he broke those rules by taking cash and vouchers and only thereafter did he take the receipts out to the Pursuer for signature. I had distinct reservations about the candour of Cooke's evidence in this respect. The Pursuer's response to being pressed in cross-examination on these matters was to begin to doubt whether he was entirely correct in his recollection about starting back to work with Shopacheck only after the Greenock fair in 1995. I also noted that in Mrs Phillips' evidence there was a degree of hesitation or defensiveness on this subject, which was in marked contrast to the rest of her evidence where I considered that there was a quality of emotion and freshness which was inconsistent with fabrication or lack of candour. However, the best independent check on this whole matter came in the evidence of Mr and Mrs Harkins, two of the Pursuer's customers. Nothing in their evidence or demeanour suggested to me that they were partial witnesses in the Pursuer's cause. I accepted them as witnesses attempting to assist the court to the best of their abilities in relation to events in which they had no great interest and which had taken place a number of years previously. Mr Harkins initially said that the Pursuer did not call for about five or six weeks after his accident, but he then put the Pursuer's return to duties as being 'a while after the fair holidays'. Mrs Harkins said that the Pursuer was off for six to eight weeks 'until the end of July, August maybe'. Pressed in cross-examination as to whether his return to work was earlier she said 'I believe it was longer with the amount of people that were collecting instead of Mr Philips'. That evidence from sources I considered credible is very strongly supportive of the Pursuer's position that he was disabled from carrying ou
Counsel for the defenders criticised the sheriff's description of the evidence of the handwriting expert, Mr. McCrae, as neutral. Counsel submitted that the sheriff had misunderstood the evidence, which was to the effect that the pursuer had made entries over a period of time, whereas he claimed to have made them all at once. We do not consider that the sheriff fell into any such error. Mr. McCrae examined entries in Mr. and Mrs. Harkins's book for dates between 27 May and 4 August 1995. Having regard to the ink with which the entries had been written, and the pressure which had been used, he considered it likely that the entries dated 3, 10 and 17 June had all been made on one occasion; that the entries dated 24 June and 1 July had been made on a second occasion; that the entries dated 8, 15 and 22 July had all been made on a third occasion; and that the entry dated 29 July had been made on a fourth occasion. He acknowledged that there were other possible explanations for his findings. The pursuer's explanation was that he had made the entries after his return to work, which he recollected as having occurred in late July or early August. That was also Mr. Cooke's explanation. He accepted that the entries tended to suggest that there might have been occasional days during June and July when the pursuer had worked, prior to his return to work at the end of July, although that was not Mr. Cooke's recollection of events. The pursuer also expressed some uncertainty about that possibility, when pressed during cross-examination. In his findings of fact (notably findings 19 and 20, quoted above), the sheriff accepted that possibility, but he also accepted, on the basis of Mr. and Mrs. Harkins's evidence in particular, that the pursuer had been absent from work for most of the period in question. In that context, Mr. McCrae's evidence was neutral as between the competing contentions as to the credibility of the pursuer's evidence. It was not neutral as to the reliability of the pursuer's evidence, insofar as it placed in question his evidence that he had not worked at all during the period in question; but it tended to support his evidence that he had been absent from work for most of the period in question, and it did not carry any implication that the pursuer's evidence was deliberately untruthful.
[11] A further aspect of the evidence which the sheriff considered, in assessing the credibility of the pursuer, concerned his reported pain and disability. In that regard, the sheriff considered the evidence of medical experts. We consider that evidence below. He also considered the evidence of a number of other witnesses, most of whom were lay people who knew the pursuer and had observed a change in him. The sheriff considered in the first place evidence bearing on the reasons for the pursuer's having given up his agency with Shopacheck:
"I next consider, as a matter of the Pursuer's credibility, the question of the reasons for his cessation of the agency with Shopacheck in the August of the following year. The thesis for the Defenders is that he gave up his work because investigators from Direct Line called at a neighbour's home on 16th August and were informed by the neighbour that the Pursuer was at work (in fact that information, as it transpired, related not to the Pursuer but to his son). To succeed, this thesis depends on speculation that this inquiry with the neighbour came to the notice of the Pursuer. There is no evidence to suggest that it did. There is, on the contrary, a body of evidence from a number of witnesses to suggest that the reason for his giving up his work was that he could no longer cope with it. That was the Pursuer's own evidence. It was also the evidence of Mrs Phillips, and of Mr Cooke who said that he had a discussion with the Pursuer about giving up before August, but that he had asked the Pursuer to stay on until after the busy period of the Greenock fair. The Pursuer is also supported by the Harkins. Mr Harkins said that before the accident the Pursuer was quite active, while afterwards 'all of a sudden he slowed down'. He said that the Pursuer changed the direction of approach to the Harkins house, parking his car so that he was able to walk down the slope to it rather than up towards it. He remembered the Pursuer saying to him that it was too much for him and that he could not do his job. Mrs Harkins said that before the accident he was a 'hyper' person, always on the go and rushing and running, but afterwards he slowed down as if he had no energy and was in pain; 'you could see it for yourself, just a different man'. She said that about a week before he left he said it was 'too much for him - pain in his back and legs'.
...
I have already indicated those features in the Harkins' evidence, and that of Mr Cooke, which is strongly supportive of the Pursuer's position. I shall now say more of Mrs Phillips's evidence. She spoke with emotion, indeed bitterness. I had no doubt that she was speaking from the heart and telling the truth. She said that before the accident the couple had an enjoyable social and family life. They regularly saw a circle of friends. The Pursuer, she said, loved his work. After the accident, he was in pain. He was in the house all the time; their relationship became difficult; he became 'nasty' to her and other members of the family. She said that he began to have difficulty in walking because of pain in his leg. He became obsessive about tidiness in the house. He began complaining to her about the time it took her to complete the household chores. She said that he was delighted when he received a phone call from the Defenders saying they would arrange a light job for him. She said that after the first night 'you've never seen anything like it in your life. He was pathetic. He couldn't walk. His boots were killing him. He was just in a state. He was doubled in two. He wouldn't give in, that caused a row as well.' She said that he is constantly uncomfortable and fidgets, even when watching the television. Since giving up his job in 1996 he had got worse. He was in pain all the time. His walking was really bad. He was sometimes very moody, so that their son and daughter had got into the habit of telephoning first before visiting, in order to ascertain what kind of mood he was in. He had suffered a loss of confidence in going outdoors. She was concerned for his safety and feared that if anyone jostled him in a crowd he would fall and be unable to get up. She said that she could see changes in his body, and that his legs looked as though they were wasting away. She said that he could shower himself but could not take a bath on his own since, although he could get into the bath on his own, he could not get out unaided. He lost sleep because he was unable to get into a comfortable position. He had difficulty in getting in and out of bed. She complained with emotion that he had become dependent upon her, and she felt that this had made her dependent in turn upon her children. She said 'what's happened here, you would be as well cutting off his legs and throwing them away.' She then volunteered 'I ended up with a companion. That's how bad it was for us'.
To that lay evidence I now add elements of the evidence from Dr Russell, the doctor who was employed in the Defenders' shipyard. He examined the Pursuer in the course of the one-week return to work in October 1996. He said 'I think his pain was genuine but I did not think he was disabled to the extent that he believed.' He also said that he would have difficulty arranging enough work restrictions for someone with the type of mobility problem of which the Pursuer complained; and when the Pursuer's position was put to him, namely that though supposedly on light duties he had then been re-allocated to a squad with heavy work, he said 'that is the problem of having a good tradesman, he becomes in demand.'
On that whole body of evidence I conclude without difficulty that the Pursuer's accident marked the immediate onset of a near-catastrophic reversal of his lifestyle, personality and circumstances. From a lifetime of hard work and effort which was well above the average in terms of commitment, the Pursuer quite rapidly descended to inertia and misery. It is somewhat offensive to common sense to suppose that he has deliberately put himself into that state following a violent accident merely in order to obtain compensation to which he is not entitled."
Counsel for the defenders criticised the last sentence which we have quoted: she submitted that the sheriff should have approached the evidence with an open mind, accepting that some pursuers may claim compensation to which they are not entitled, rather than starting from the position that such a situation is unlikely. We reject this contention. The sheriff's observation does not suggest that he approached the evidence with anything other than an open mind. Having accepted the evidence of the lay witnesses, and in particular Mrs. Phillips and Mr. and Mrs. Harkins, that the pursuer's personality, behaviour and circumstances had radically altered in such a way as to cause unhappiness and anxiety to himself and others, the sheriff was entitled to observe that such a change was unlikely to be the result of a conscious strategy.
[12] In the whole circumstances, we are entirely satisfied that there are no grounds upon which this court could properly take a different view from the sheriff as to the credibility of the pursuer's evidence.
[13] We turn next to the issue of the medical evidence. That evidence was summarised by the sheriff as follows:
"There was expert evidence on the Pursuer's side from: Mr Di Paolo, consultant orthopaedic surgeon, Mr Mainds, consultant orthopaedic surgeon, and Dr Sykes, consultant psychiatrist. On the Defenders' side I heard evidence from Professor Cairns Aitken, retired professor of occupational medicine; Mr McCreath, consultant orthopaedic surgeon and Mr Mann, retired consultant orthopaedic surgeon. Their evidence, particularly that of Professor Cairns Aitken, was lengthy. The question itself is not in fact a complex one: has the accident caused the Pursuer to continue to suffer pain in his back and legs which is of a disabling nature? All the experts mentioned the very difficult question of the subjective nature of the experience of back pain. The following is a very brief summary of their respective
conclusions.
Mr Di Paolo concluded that the Pursuer had back pain which was related to the accident. He concluded that the Pursuer also had leg pain but was not sure if it was causally related to the accident. He thought it more likely that it was due to age-related stenosis in the spine. He found all five validated signs of inappropriate illness behaviour.
Mr Mainds concluded that the Pursuer sustained an axial compression injury to his low back resulting in an injury to the L4/5 or L5/S1 disc causing him back pain and right sided S1 root pain symptoms (that is to say, nerve pain in the leg and foot consistent with the appropriate nerve distribution). He found no signs of inappropriate illness behaviour.
Dr Sykes concluded that the Pursuer is suffering from psychologically based symptoms related to an underlying depressive syndrome expressing itself in somatised form (that form being productive of inappropriate illness behaviour observed by some of the other experts). He thought it highly unlikely that his symptoms were fabricated. He said that the apparent discrepancy between the severity of the injury itself and the degree of disability arises from the interaction of head injury with concussion, and premorbid temperamental characteristics. He thought that recovery would be a long and difficult process.
Professor Cairns Aitken had produced two reports - one of 29th November 1997 and the other of 4th February 1999. In the first report he concluded that the Pursuer's symptoms 'are attributable to mild/moderate neurotic reaction following the accident...he experienced emotional distress akin to depressive illness, with increased obsessionality and muscle tension'. He said that no specific treatment or rehabilitation is likely now to improve his complaints in the short term. In his second report, having in the meantime heard for the first time of the Pursuer's former agency with Shopacheck, he concluded that the Pursuer and his wife had not been truthful to him in interview for the original report. He went on to opine that the additional stress of deceiving others might have been a contributory factor to his neurotic symptoms, and he went on to conclude that there was an element of malingering in the Pursuer's presentation.
Mr McCreath's opinion can be summed up in the following passage of his evidence. 'My overriding impression is this is a man who for whatever reasons developed a sore back and continued to have his sore back and the disability associated with it which in my mind was out of all proportion to any damage or injury he may have produced or had produced in his back.'
Mr Mann's conclusion was the Pursuer had not ever suffered pain in his back which affected his life or caused him disability. He thought the Pursuer was fabricating his symptoms. He did not regard the Pursuer as unfit for his job as a plater."
[14] Later in his Note, after considering the lay evidence concerning the pursuer's pain and disability, the sheriff assessed the medical evidence. Immediately after the sentence which we have already quoted, beginning "It is somewhat offensive to common sense", the sheriff continued:
"On that basis alone (though it is not the only one) I am able to dispose of Mr Mann's evidence - and not without foundation, it seems to me. He is alone among the seven experienced medical practitioners to suggest that the Pursuer is effectively making the whole thing up (although minority of view is not a necessary indicator of error). His opinion of a very complex case was confined simplistically to the search for an organic explanation of the Pursuer's symptoms. He made a number of dismissive comments about the place of psychiatry in assessing cases such as that of the Pursuer, and in particular he appeared to suggest that psychiatric experience was largely limited to the major psychotic illnesses and was of doubtful value when concerned with neuroses. In view of the very careful treatment by Dr Sykes of the psychiatric component in this case (in particular relating to the combination of pre-morbid personality and head injury causing concussion) and the expositions of Professor Cairns which differed from Dr Sykes more in degree than substance, I found Dr Mann's comments on the place of psychiatry to be so cavalier as to verge on the irresponsible. I placed no weight on his opinion.
With Professor Cairns Aitken's evidence I had some difficulty. The first difficulty was that he adopted (so it seemed to me) an unnecessarily hostile and defensive attitude to the procedure of cross-examination, which led to that part of the proceedings being extended beyond what might otherwise have been expected. I do not think that for present purposes it is productive to say any more on that matter. The major difficulty lies in the change from his original opinion which is manifested in his second report. His position on that was that when he saw the Pursuer and his wife for the first report, he was not told by either of them that the Pursuer had a second occupation and that he had made false declarations for benefits. He therefore concluded that they had been untruthful with him at the first interview, and that accordingly the Pursuer was no longer entitled to the benefit of the doubt which he had previously been prepared to accord him. The result of that was that while he did not consider that the Pursuer's symptoms were wholly fabricated, he regarded them as being further along the spectrum in the direction of malingering. In my view, Professor Cairns Aitkens, in revising his original opinion, was not accurately informed as to the background, and was unduly swayed by moral perceptions to the extent that he lost objectivity. First, as to the background, the reports which he received from the Defenders indicated a far higher level of activity and of physical demands than was in fact the case relating to the Shopacheck agency. Secondly, at the time of the first interview the Pursuer had stopped that work more than a year previously. It is one matter to say that it was not mentioned; it is quite another to conclude in these circumstances that its omission was deliberately deceitful. On one view - which was shared by Dr Sykes - the fact that the Pursuer may have attempted to return to keep up his work with Shopacheck was to his credit. As to the fact that the Pursuer falsely signed his DSS declarations, while that is wrong and worthy of negative comment, I think that for diagnostic purposes it is necessary to inject a little realism into the analysis. If he had only ever had the one job he would have been able to claim benefits with impunity. His real problem was that he had, in entirely creditable fashion, conducted two parallel careers for many years and had then lost more than half his income through the Defenders' negligence. Compared to the less diligent, he was placed in a less favourable situation as regards benefits, to which he had contributed disproportionately higher. There was a degree of irony in his situation which, I think, required more objective consideration and less opprobrium.
In the event I have preferred the evidence of Dr Sykes and Mr Mainds to all other expert opinions, insofar as those opinions differ. Although coming from separate disciplines they are consistent with, and complement, each other. They provide a coherent explanation for the range of phenomena apparent in the Pursuer's conduct since the accident and described in convincing detail by other witnesses. In preferring Mr Mainds's opinion I also state explicitly that I accept that an accident of the kind suffered by the Pursuer is capable of causing a disc compression injury of the kind described in my finding above, and I reject the contrary view. None of the medical witnesses had the advantage of hearing Mr. McCready's graphic account of the accident. It was a very violent, chaotic event. Great forces were involved, both in the impact by the falling plank and in the unrestrained fall thereafter."
[15] In challenging the sheriff's findings on the medical evidence, counsel for the defenders prefaced her submissions by making it clear that certain matters were not in dispute. It was conceded that the accident had been a traumatic event and that the pursuer had suffered concussion. It was conceded that that concussion had been one of several factors leading to the pursuer's subsequent depressive illness. It was conceded that the pursuer had also sustained some sort of back injury as a consequence of the accident, which had caused him to suffer continuing low back pain since shortly after the accident. Counsel also said, at the beginning of her submissions, that the defenders did not criticise the sheriff's treatment of the evidence of Mr. Di Paulo and Mr. McCreath: in the subsequent course of her submissions, however, considerable weight came to be placed on the evidence of Mr. Di Paulo. No criticism was made of the sheriff's treatment of the evidence of Mr. McCreath or Professor Aitken. Her submissions focused on the evidence of Mr. Mann, Mr. Di Paulo, Mr. Mainds and Dr. Sykes. She criticised the sheriff's reasoning in his assessment of their evidence, in respects which we detail below. She invited the court to reconsider the evidence, and to find that the pursuer had suffered only relatively minor back pain as a consequence of the accident, and that an unrelated condition, namely spinal stenosis, had caused the pursuer to suffer leg pain which had rendered him unfit for work. His depression had been brought on by his malingering during the period between the accident and the onset of leg pain, or alternatively by his unfitness for work as a result of the leg pain.
[16] Counsel criticised in the first place the reasons given by the sheriff for rejecting the evidence of Mr. Mann to the effect that the pursuer was not genuinely suffering from back pain but was deliberately feigning such pain. We need not consider these criticisms in detail, as it appears to us that the defenders cannot, consistently with the concessions noted above, place reliance upon Mr. Mann's evidence to that effect. His evidence is that the pursuer does not suffer back pain (which was the defenders' position at the proof). The defenders now concede that the pursuer does indeed suffer low back pain. Mr. Mann's opinion as to why the pursuer should display symptoms of back pain, in the absence of any such pain, is therefore of no assistance. In addition, we note that Mr. Mann's opinion was based upon his view that the pursuer's account of pain and disability was a lie. Given that the sheriff accepted the pursuer as a credible witness in his account of those matters, he was logically bound to reject Mr. Mann's opinion evidence, based as it was upon a premise which the sheriff did not accept.
[17] Counsel next criticised the reasons given by the sheriff for preferring the evidence of Dr. Sykes and Mr. Mainds to the other expert opinions in the light of differences between the opinions expressed by these two witnesses. Counsel focused in particular upon the sheriff's description of the opinions of Dr. Sykes and Mr. Mainds as "consistent with...each other". Counsel submitted that their opinions were, on the contrary, inconsistent with each other: the sheriff himself noted that Dr. Sykes diagnosed the pursuer as suffering from a depressive syndrome which was productive of inappropriate illness behaviour observed by some of the other experts; Mr. Mainds on the other hand found no signs of inappropriate illness behaviour.
[18] We do not accept this criticism. When examined by certain of the orthopaedic surgeons, the pursuer displayed symptoms, on some occasions, for which those surgeons could find no explanation in terms of physical pathology. Those symptoms were not displayed when the pursuer was examined by Mr. Mainds. Mr. Mainds was able to make a diagnosis which explained all the symptoms which he found on examination. That diagnosis - of a compression injury to the L4/5 or L5/S1 disc causing back pain and right-sided S1 root pain - had not been made by the surgeons who had examined the pursuer previously. That is understandable, however, since it was only Mr. Mainds who noted that the symptoms in the leg and foot followed the anatomical pattern of the relevant nerve distribution. Dr. Sykes, on the other hand, after examining the pursuer and considering his pre-accident personality and the changes in his personality and behaviour subsequent to the accident, diagnosed that the pursuer was suffering from a depressive illness, which was likely to have developed as a result of several factors acting in combination, including the pursuer's pre-accident personality, the concussion which he had sustained at the time of the accident, and his prolonged absence from work thereafter. He considered that this depressive illness expressed itself in various ways, which included the inappropriate illness behaviour noted on some occasions by surgeons who examined the pursuer.
[19] In these circumstances, the opinions of Mr. Mainds and Dr. Sykes are perhaps best described as complementary, rather than consistent (although they are not contradictory of each other). We do not, however, consider that the sheriff erred in his treatment of their evidence. He himself said that their opinions "complement each other"; and in his findings (notably findings 7 and 8, quoted above), and in his assessment of damages, it is clear that he has treated them as complementary, and as together providing a satisfactory explanation of the pursuer's behaviour and complaints since the accident.
[20] Counsel finally criticised the sheriff's treatment of the evidence of Mr. Di Paulo. This criticism was not foreshadowed in the Grounds of Appeal or in the Note of Argument, and as we have mentioned counsel began her submissions by disavowing any intention to criticise this aspect of the sheriff's decision. In the course of the hearing of the appeal, however, it emerged that Mr. Di Paulo's evidence raised an issue which appeared potentially to be of some significance.
[21] Mr. Di Paulo had first examined the pursuer in May 1996. He found that the pursuer was suffering from back pain. He next examined the pursuer in March 1997. Back pain continued to be the dominant complaint, but the pursuer also reported the onset of bilateral leg pain from about August 1996. Mr. Di Paulo next examined the pursuer in October 1998. He noted that the pursuer complained of continuing back pain and occasional whole leg numbness. In his evidence, having heard a description of the accident (based on the evidence of an eye-witness, Mr. McCready), Mr. Di Paulo agreed with Mr. Mainds's opinion that the pursuer had sustained an axial compression injury. He concluded that the symptoms of leg pain were most likely to be due to a condition of spinal stenosis affecting the nerves. Such a condition would have developed over a period of years and would not be the result of the accident. Back pain still dominated any leg pain in terms of pain and disability. When asked about Mr. Mainds's diagnosis of a disc injury, Mr. Di Paulo interpreted that diagnosis as meaning a slipped disc. On that basis, he was of the opinion that the interval of time between the accident and the onset of leg pain was greater than he would have expected if the pursuer had suffered a slipped disc. Only a scan could however determine whether the problem causing the pursuer's leg pain was a slipped disc or spinal stenosis, and no such scan had been carried out. In cross-examination, Mr. Di Paulo was asked whether the leg pain on its own would prevent the pursuer from working as a plater. Although there was no basis in the pleadings for such a question - the possibility of there being some condition unrelated to the accident which would in any event have caused the pursuer pain and disability was not raised at all - no objection was taken to the question, and Mr. Di Paulo responded that the leg pains on their own would prevent the pursuer from working as a plater. In re-examination, Mr. Di Paulo made it clear that there was no definite timescale between damage to a disc and the emergence of a major problem with leg pain.
[22] In the light of this evidence, the sheriff was invited by the defenders, as an alternative to their primary position that the pursuer was simply a malingerer, to award damages on the basis that, "following Mr. Di Paulo's opinion, any back injury should be regarded as having been supplanted by an intervening and unrelated spinal stenosis".
[23] It appears to us that the sheriff's Note does not deal as fully with this submission, or with Mr. Di Paulo's evidence, as they merited. This may reflect the way in which the evidence emerged, without any basis in the pleadings, and the emphasis placed by the defenders upon their primary argument. Nevertheless, the issue raised by Mr. Di Paulo's evidence was of sufficient importance to merit specific and explicit consideration. It is, however, implicit in the sheriff's findings, and in his Note, that he rejected Mr. Di Paulo's opinion that the leg pain was due to spinal stenosis and was unrelated to the accident. He explains that he preferred Mr. Mainds's evidence "to all other expert opinions" because it provided a coherent explanation for the range of phenomena apparent in the pursuer's conduct.
[24] We have already summarised Mr. Di Paulo's evidence. Mr. Mainds, who dealt with a much larger number of back cases than Mr. Di Paulo, examined the pursuer in October 1998. The pursuer described pain and sensory changes in his right leg in the distribution of the S1 nerve root. Tests for S1 nerve root irritation were positive. Mr. Mainds accordingly diagnosed an injury to the L4/5 or, more properly, the L5/S1 disc causing back pain and right sided S1 root symptoms. It is important to note that Mr. Di Paulo had not noted symptoms in the S1 nerve root distribution; nor had he found S1 nerve root irritation. His diagnosis had been made in the absence of such symptoms and findings. It is also relevant to note that the injury diagnosed by Mr. Mainds was not a "slipped disc", or acute disc prolapse, of the kind which would normally cause immediate leg pain, as Mr. Di Paulo had assumed in his discussion of disc injury. Mr. Mainds distinguished between two presentations of leg pain:
"One is an acute onset caused by an acute prolapsed disc and one is a more insidious onset usually in association with pre-existing back pain and very often the leg pain becomes the dominant pain, the dominant symptom, but in some cases there is a sort of co-existence of the back pain and the leg pain".
Mr. Mainds also explained that irritation of the S1 nerve root caused by a bulging disc occurred particularly in association with age-related changes. In the pursuer's case, Mr. Mainds considered it likely that the pain was due to disc injury in association with age-related changes. In cross-examination, Mr. Mainds agreed with Mr. Di Paulo's opinion that stenosis developed over a period of years, but not with the view that it followed that pain related to stenosis was unrelated to the accident: many persons with stenosis had no symptoms, but such symptoms could be provoked by an injury of the kind suffered by the pursuer.
[25] Having considered the evidence of Mr. Di Paulo and Mr. Mainds, we are satisfied that the sheriff was entitled to prefer the evidence of the latter, insofar as they conflicted. Only Mr. Mainds's diagnosis explained the finding of S1 nerve root irritation. Mr. Di Paulo's different diagnosis was made in the absence of that finding. His rejection of Mr. Mainds's diagnosis of disc injury was based on the false premise that such an injury was necessarily an acute prolapse of the disc. His evidence that since stenosis was unrelated to the accident, pain consequential upon stenosis was equally unrelated to the accident, did not address the possibility that an injury resulting from the accident might cause previously symptom-free stenosis to become symptomatic. Although it would have been preferable for the sheriff to have dealt with these issues more fully, his conclusion that only the evidence of Dr. Sykes and Mr. Mainds, taken together, provided a coherent and comprehensive explanation of the pursuer's history, appears to us to be supported by the evidence.
[26] In the whole circumstances, we consider that there are no grounds upon which this court could properly take a different view from the sheriff as to the conclusions to be drawn from the medical evidence.
[27] For these reasons, we shall refuse the appeal.
