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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Miller v. Lothian Primary Care NHS Trust [2004] ScotCS 159 (01 July 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/159.html Cite as: [2004] ScotCS 159 |
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OUTER HOUSE, COURT OF SESSION |
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A3064/02
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OPINION OF LORD HARDIE in the cause MICHELLE GAIL MILLER Pursuer; against LOTHIAN PRIMARY CARE NHS TRUST Defenders:
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Pursuer: Blessing, Advocate; Thompsons
Defenders: Miss Milligan, Advocate; Simpson & Marwick, W.S.
1 July 2004
[1] On 19 December 1999 the pursuer was working in the course of her employment with the defenders as a nursing auxiliary at Astley Ainslie Hospital, Edinburgh. She assisted a patient from his wheelchair in preparation for getting him ready for bed. The patient was standing at the side of his bed holding onto a rail as the pursuer prepared him for bed. Suddenly and without warning the patient fell backwards towards the pursuer. She caught the patient, taking his full weight and lowered him to the floor. In doing so she suffered a jerking injury to her lower back. [2] Prior to the commencement of the proof on 8 June 2004 counsel for the defenders lodged a Minute (No.18 of process) in which, for the purposes of this action only and without prejudice to their rights and pleas with regard to the quantum of damages, the defenders admitted liability to make reparation to the pursuer for any loss, injury and damage sustained by her as a result of the accident on 19 December 1999. The issue in the proof was a narrow one and was restricted to the question of the proof of a causal link between the pursuer's accident and a left sided disc prolapse at L5/S1 level compressing the S1 nerve root which was diagnosed following an MRI scan performed on 9 August 2000. [3] In terms of the Joint Minute (No.19 of process) it was agreed that 7/2 of process and 7/3 of process were respectively the records of the pursuer's general practitioner and the Western General Infirmary, Edinburgh relating to the pursuer. There was also a measure of agreement about the level of damages depending upon my determination of the issue in this case. The oral testimony was restricted to the evidence of the pursuer, Miss Margaret Murray McQueen, a consultant orthopaedic surgeon and Mr Michael John McMaster, a consultant orthopaedic spine surgeon. Mr McMaster's evidence was taken on commission prior to the proof diet. [4] The pursuer is a 35 year old lady who lives with her mother. She is single and has no children. She gave a history of the accident, which was not disputed. As far as the consequences of the accident are concerned she testified that she did not have any back pain on the night of the accident but noticed the pain the following day. It was an aching pain in the left hand side of her back. She was given cocodamol by nursing staff but the pain did not alleviate. She went to her general practitioner on 20 December 1999 and was signed off work for two weeks. At that time she did not have pain anywhere other than her back. She returned to work after two weeks although she still felt pain in her back. She stated that the pain never went away and it got worse. She found difficulty getting out of bed and lifting objects. In evidence-in-chief she stated that she started to have pain in her leg and that someone told her it was sciatica. This was a constant pain down the back of the left leg to her ankle. A few weeks or a month after the onset of the leg pain she commenced to suffer from "pins and needles" which gradually became more severe. She delayed consulting her general practitioner because she thought that if it was sciatica it would ultimately improve. She consulted her general practitioner about this matter on 17 May 2000 and thereafter gave a history of attending a physiotherapist, being sent for an MRI scan and having an operation to remove a prolapsed disc in September 2000. In cross examination she confirmed that the pain in her leg developed later than the pain in her back but she could not recall the date of the onset of her leg pain. She confirmed under reference to page 57 of 7/2 of process that on 3 May 2000 she attended the Accident and Emergency Department of Edinburgh Royal Infirmary. The history given by her at that time was that for the previous month she had had excruciating pain down her left leg and pins and needles down to her toes especially at the back of her lower leg calf and that she was unable to lift her leg. Thereafter she attended her general practitioner on 17 May 2000. The relevant entry is the first reference by her general practitioner of sciatica and the first entry in his notes of persistent lower back pain radiating down the left leg as far as her ankle. It is also the first entry in his notes of a reference to "pins and needles". The pursuer confirmed that she did not have any pain in her left leg immediately after the accident. In particular she confirmed that she did not have such pain within 24 or 48 hours of the accident or even one week later. She stated in cross examination that the pain in her leg "came on weeks or months later". Although the pursuer stated in cross examination that she had leg pain before April 2000 it was clear from her evidence as a whole and under reference to the medical records of her general practitioner, including the record of her attendance at the Accident and Emergency Department of Edinburgh Royal Infirmary to which I have already referred, that the onset of leg pain was probably about April. [5] The pursuer testified that the operation was not a success as far as she was concerned. Her back still hurts and she suffers pain in her leg and back. She has numbness at the top of her leg and finds it difficult to walk or stand for any length of time. Although she has a scar on her back she is not self conscious about that. Immediately after the accident she had difficulty getting out of bed, bathing or shopping. She was off work for about 18 months. Her social activities had been restricted. Prior to the accident she enjoyed swimming and ice skating with her nephew but she was unable to participate in these activities. She has persistent back pain although the severity varies from time to time. At the date of the proof she was absent from work because of depression attributable to treatment which she had received for an illness unrelated to the accident. [6] I found the pursuer to be generally credible and reliable, both as regards the accident and its consequences. She was understandably vague about the date of the onset of pain radiating from her back down the back of her left leg to her ankle. Having regard to that particular issue I considered that the contemporaneous medical records were the most reliable source of information. Insofar as the pursuer suggested at one point in her cross examination that she had leg pain prior to April 2000 I considered that she was mistaken on that matter because that was inconsistent with the terms of the medical records. In any event the pursuer was clear in her evidence that months may have elapsed before the onset of her leg pain. On balance I have concluded that the evidence indicates that the onset of leg pain occurred probably in or around April 2000. The significance of the lapse of time between the date of the accident and the onset of leg pain is that it may have a bearing upon the determination of the question of any causal connection between the accident and the disc prolapse suffered by the pursuer. [7] In relation to the question of causal connection there was a divergence of opinion between the medical experts. Miss McQueen prepared two reports dated respectively 20 September 2002 (6/4 of process) and 30 April 2004 (6/5 of process). In the first of these reports Miss McQueen expressed the opinion that the pursuer "sustained an injury to her lumbar intervertebral disc as a result of her accident on 19 December 1999. This then progressed to a prolapsed lumbar intervertebral disc which did not settle conservatively and subsequently required surgery". In her second report Miss McQueen confirmed her earlier opinion and stated that the pursuer "is quite clear in her history that she had back and leg pain from that time", i.e. from the time of the accident. While I accept that the evidence clearly indicates that the pursuer had back pain from the time of the accident, as I have already indicated, the evidence relating to her leg pain is to the effect that occurred in or about April 2000, approximately 31/2 months after the accident. Even the pursuer who maintained that she thought that the onset of leg pain was prior to April 2000, did not maintain that her leg pain dated from the date of the accident. Thus insofar as Miss McQueen's opinion is based upon the hypothesis that the pursuer had leg pain from the time of the accident she is clearly in error. While that matter alone might be sufficient to entitle me to conclude that the pursuer had failed to establish a causal link between the accident and the disc prolapse, I consider that I should also deal with the essential difference between Miss McQueen and Mr McMaster in relation to the question of causation. [8] Miss McQueen has been a consultant orthopaedic surgeon at Edinburgh Royal Infirmary since 1987. In the course of her profession she is required to manage acute and non-acute injuries and she confirmed that she sees approximately one patient with a back injury every fortnight. Miss McQueen considered that it was probable that the accident had caused a split or tear in the anulus of the disc as a result of which the prolapse gradually developed. In evidence-in-chief she expressed the opinion that this process could take anything up to 3 months to develop but beyond that she would expect the tear in the anulus to begin to heal as a result of which the prolapse would not occur. She also considered that although it was possible that the pursuer had a spontaneous prolapse it was unlikely having regard to the MRI scan. In cross-examination Miss McQueen disagreed with the contrary opinion expressed by Mr McMaster and conceded that Professor Dickson, the author of an authoritative textbook on spinal surgery, had expressed a contrary opinion to that expressed by her. It appeared that Professor Dickson is known to have changed his opinion concerning the link between trauma and disc rupture since the publication of his textbook on spinal surgery. She confirmed that Professor Dickson would probably agree with Mr McMaster and indeed Professor Dickson's views may even be more extreme than those of Mr McMaster. In cross-examination Miss McQueen confirmed that the medical records seemed to date the excruciating pain to about April 2000, some 31/2 months after the accident. She also accepted that some forms of leg pain may be referred leg pain from the back. In general she conceded that pain in the thigh and buttock was referred back pain and not specifically due to a prolapsed disc. She also conceded that if there was a significant gap between the back pain and the onset of leg pain on a balance of probabilities there would be no link between the two. However, her position was that there had been a gradual onset of leg pain and accordingly there was a link. In that regard she differed from the opinion expressed by Mr McMaster. [9] Mr McMaster has been a consultant orthopaedic spine surgeon at Edinburgh Royal Infirmary for 29 years. He was of the opinion that there was no causal link between the accident and the onset of radicular leg pain 3 or 4 months later. He explained that the majority of people suffer a disc prolapse spontaneously but in a small minority the disc prolapse is related to an injury. In such cases the injury is the final precipitating event according to him. The onset of radicular leg pain is the sign which indicates a disc prolapse. It was his opinion that if someone developed a disc prolapse which had been precipitated by a minor injury, the disc prolapse will occur within a short period of 24 to 48 hours after the injury. He did not accept that the onset of such pain beyond that period indicated the necessary causal link between the accident and the radicular leg pain. [10] Having considered the respective testimony of the two expert witnesses I considered that the evidence of Mr McMaster was the more impressive. He is considerably more experienced than Miss McQueen and has more relevant experience because he specialises as a spinal orthopaedic surgeon. While it may be, as Miss McQueen stated in her evidence, that his current experience is more specialised and does not involve surgery for prolapsed discs it was not disputed by Miss McQueen that Mr McMaster was considerably more experienced than she was. I would also observe that as far as the current practice in Edinburgh is concerned it appears from the evidence of Miss McQueen that surgery for prolapsed discs is normally performed by neurosurgeons. Moreover it seemed that Mr McMaster was supported by a current body of opinion among spinal surgeons, including Professor Dickson. Miss McQueen's testimony that the gradual development of a prolapsed disc would occur within a maximum period of 3 months after the anular tear and that the tear would thereafter heal also indicates that it is less probable that the pursuer's prolapsed disc was caused by an accident 31/2 months previously. On balance I preferred the evidence of Mr McMaster and have reached the view that there is no causal link between the accident and the pursuer's prolapsed disc. [11] In that event it was a matter of agreement, reflected in the Joint Minute (No.19 of process) that the damages to be awarded to the pursuer amount to £3,473.00. Accordingly I shall grant decree in favour of the pursuer for that sum. [12] Before concluding I should indicate that had I been satisfied that there was a causal connection between the accident and the pursuer's prolapsed disc I would have assessed solatium in the sum of £12,000 of which two-thirds related to the past. I would also have awarded the agreed sum of £4,500.00 in respect of past loss of earnings, future employability and services claims.
