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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 118
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PD1050/04
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OPINION OF LORD
GLENNIE
in the cause
JOHN QUIGLEY (AP)
Pursuer;
against
HART BUILDERS
(EDINBURGH) LIMITED
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
M Stuart; Morisons, WS
Defenders: Cowan; Simpson & Marwick, WS
28 July 2006
Introduction
[1] In
this action, the pursuer, a construction worker employed by the defenders, sues
in respect of two incidents or series of incidents as a result of which he
claims to have suffered an injury to his lower back.
[2] The
pursuer's case on Record is that on 15
June 2001, whilst working in the course of his employment, he
injured his back whilst helping to lift a portable cement mixer on to the back
of a lorry. He was off work for some
weeks but eventually returned to work on 23 July 2001, his doctor having certified him as being fit
only for light duties. When he attended
the defenders' site on that date, he was put to work on the roof of a block of
flats, which was then under construction.
The work involved laying insulation on top of a concrete roof and
thereafter covering the insulation with concrete slabs. He did this work for two weeks, for the first
of those by himself and for the second with one other man. Thereafter he was put on other heavy duties,
including paving and excavating.
Eventually, on about 28 September 2001, he woke up unable to
move. He claims that he has been unable
to work since then.
[3] In
presenting his case, the pursuer has been put at a considerable disadvantage as
a result of two quite separate matters, both relating to the preparation (or,
rather, lack of preparation) of his case.
In saying this, I should say that I am not in a position to point the
finger at where the blame lies. I do not
have the information to enable me to do so and it would in any event be
invidious to attribute blame without hearing the full circumstances. Any criticisms, if justified, can be taken up
by the pursuer separately. I should,
however, narrate the circumstances as they came before the Court, since they
directly affected the way in which the proof proceeded.
Procedural difficulties
Rule of Court 43
[4] The
first matter arises out of the new personal damages rules in Rule of
Court 43. Rule 43 arose out of
the recommendations of the Coulsfield Report in
2000. One aspect of the Rules is that
the Court retains more control over the proceedings than would otherwise be the
case. Thus, Rule 43.6 provides that
the Keeper of the Rolls shall, on the lodging of defences, allocate a diet of
proof for the action and issue a timetable for various steps to be taken by the
parties leading up to that proof. Relevant
to the present case is the requirement on the parties each to lodge in process
by a date identified in the timetable "a list of witnesses together with any
productions upon which they wish to rely":
Rule 43.6(1)(b)(vii).
[5] Rule
43.6(3) provides that, where parties fail to comply with any requirement of the
timetable, the Keeper of the Rolls may (and, in the case of a failure to lodge
a Record, must) put the cause out to be heard on the By Order Roll. It is the common experience of Outer House
judges to deal with such matters on a routine basis. Rule 43.6(8) provides specifically for
the case where a party has not lodged productions in accordance with the
timetable. It provides that a production
not lodged in accordance with the timetable "shall not be used or put in
evidence at a proof unless" by consent of the parties or "(b) with the leave of
the Court on cause shown and on such conditions, if any, as to expenses or
otherwise as the Court thinks fit".
There is, however, no comparable provision in Rule 43.6 to deal
with the case where a party has failed to lodge in process by the required time
his list of witnesses. The notes to the
Rule in the Parliament House Book at 43.6.7 suggests that it may be difficult
to imply in relation to witnesses a similar restriction as is expressly made in
respect of productions. But the note
does not propose a solution. It simply
points out that the action will, nonetheless, be subject to a particular
Practice Note, the relevant one being No.8 of 1994 (rather than No.4 as
suggested in the Note). This Practice
Note, which pre-dates the new Rule 43, is to be found at page C2032 of
Volume II of the Parliament House Book.
It is headed "Exchange of Lists of Witnesses". It provides that subject to various
provisions, including Rule 43 (though at that time that was obviously a
reference to the old Rule 43), each party shall, not later than 28 days before
the diet fixed for proof or jury trial, give written intimation of a list of
witnesses and lodge a copy of that list in process. It goes on, in paragraph 2, to state
that "a party who seeks to call as a witness a person not on his list intimated
under paragraph (1) may do so subject to such conditions, if any, as the
Court thinks fit".
[6] The
argument has been made, on a number of occasions, that the power to impose
conditions under paragraph 2 of that Practice Note is limited to the case where
a party, having intimated a list of witnesses, seeks to call an additional
witness not named on the list. In other
words, it has no application where no list at all has been intimated. In such a case, it is argued, a party is
entitled to call any witness he chooses.
It has also been argued that the restriction in paragraph 2 of the
Practice Note applies only to witness lists intimated under paragraph 1
thereof, and can have no application to a witness list which ought to have been
lodged in process under the timetable issued by the Keeper of the Rolls in
terms of Rule 43.6. On this
argument, again, the Court has no power either to refuse permission to a party
to call a witness not on a witness list or to impose any conditions on the
calling of such a witness. A third
argument, less extreme than the other two, is sometimes made to the effect
that, in terms of the Practice Note, the Court may impose conditions on the
calling of a witness not on a list, but may not prevent such a witness being
called. In my opinion, none of these
arguments has any merit. In terms of the
Practice Note, a restriction on the right to call a witness who is not named on
the list of witnesses lodged in accordance with that Practice Note must carry
with it, as a matter of clear implication, a restriction on the right to call a
witness if no list at all has been lodged.
Further, it seems to me that the framers of the new Rule 43 must
have had in mind the existence of that Practice Note. They cannot have intended uno flatu to impose a requirement for a
witness list to be lodged and, at the same time, to remove any sanction for
failure to comply with it. Nor can the
power of the Court to impose conditions sensibly be viewed as consistent with
the Court having no power to prevent a witness being called if, for example,
there are no conditions which would sufficiently protect the other party from
the prejudice potentially arising therefrom. I consider that the Practice Note has to be
read as applying to the requirements of Rule 43.6 with such modifications as
are necessary. In other words, a party
seeking to call a witness not named on a list of witnesses lodged in Court in
accordance with Rule 43.6 requires the leave of the Court, and the Court may
refuse leave or grant it on such terms as it considers fit.
[7] The
preferable course, if a party has not lodged a list of witnesses within the
time laid down in the timetable issued under Rule 43.6, is for that party to
apply to the Court at the earliest opportunity for his list of witnesses to be
received though late. Such an
application, if made promptly, is likely to be granted, since the likelihood of
prejudice having arisen will be small - though an explanation for the failure
and an offer of expenses will be expected and, if the fault is that of the
agent, the Court may wish to be satisfied that the expenses of the application
are not passed on to the client. If the
application is made near to the date fixed for the proof, the Court may be more
likely to impose conditions on the calling of particular witnesses, to
alleviate so far as possible the risk of prejudice. It will only be in the exceptional case that
a party will need to resort to Practice Note 8 of 1994.
The pursuer's witnesses
[8] The
above discussion serves as a background to the problem that arose in the
present case. At the beginning of this
four day proof, Mr Stuart, for the pursuer, moved the Court to allow a list of
witnesses to be lodged, no pursuer's list of witnesses having previously been
lodged. His alternative position was
that he was entitled to call witnesses even though no list of witnesses had
been lodged, albeit that in terms of Practice Note 8 of 1994 the Court could
impose conditions. This motion to lodge
a list of witnesses was opposed. The
background to the motion, as explained by Mr Stuart and, as I understood it,
substantially agreed by Mr Cowan for the defenders, was that the parties
had been in negotiations to settle the case for a considerable period. A proof fixed for 15 September 2005 had been discharged. The particular matter causing problems in the
attempts to settle the case were to do with the CRU certificate. I need not go into the details of that, nor into the question of whose responsibility it was,
ultimately, to resolve such questions.
The uncertainty regarding the CRU certificate continued. A new proof date of 4 July 2006 was fixed. On 20
June 2006, with the new proof date fast approaching, the pursuer
again moved the Court to discharge the diet of proof. That motion, though unopposed, was refused in hoc statu
on the basis that the Court wished to have more information about what had
happened since the previous discharge.
The parties were, nonetheless, desirous of securing the discharge of the
proof. A joint motion for discharge was
made. That motion came before a
different judge, on 27 June 2006,
the proof date being only one week ahead.
The joint motion was refused.
However, and this is what has caused the pursuer some difficulties, the
Court went further and refused the pursuer's opposed motion to have an
Inventory of Productions and list of witnesses received late. That list of witnesses had
been intimated by the pursuer on 22 June and named four witnesses, namely, the
pursuer himself, two GPs who attended the pursuer at his local health centre,
and a specialist. The defenders'
concern, as I understand it, was based upon the potential prejudice to them of
having to deal at short notice with a new area of expert specialist evidence;
and their argument focussed on opposition to the inclusion of the specialist on
the list of witnesses and the lodging of his report in process. Nonetheless, despite the limited basis for
opposition, the Court refused altogether to allow the list of witnesses to be
received.
[9] The
list of witnesses which Mr Stuart sought to lodge on the first day of the proof
before me did not include the specialist to whom I have referred, nor did
Mr Stuart renew the application to have the specialist's report received
in process. However, the list did
include the same three individuals who had been on the previous list refused by
the Court on 27 June, namely the pursuer and the two GPs who had attended
him. It also included a Mr Tom Russell,
a consultant neurosurgeon at the Western General
Hospital in Edinburgh. Receipt of this list of witnesses was opposed
by Mr Cowan, essentially on the basis that it was an attempt to review the
interlocutor of the Court pronounced on 27 June without there having been
any material change of circumstances.
This ground of opposition applied to the pursuer and the two GPs. Their inclusion on a list of witnesses had
been the subject of a specific order by the Court. The position of Mr Russell was somewhat
different. He was named on the
defenders' list of witnesses; but I was told by Mr Cowan, and I have no
reason to doubt, that the defenders had no intention of calling him, presumably
because the pursuer had no expert medical evidence to which he was required to
respond. Further, his report had been
restricted to an assessment of the pursuer's back pain in light of the incident
of 15 June 2001. It had not taken account at all of the events
of July to September 2001; and the defenders, said Mr Cowan, had no idea
what Mr Russell would say about those matters if he was asked about them. They would be prejudiced if the pursuer was
allowed to add Mr Russell to his list to speak to all matters on Record.
[10] I considered that Mr Cowan was right in his submission
that I could not review the decision taken by another Lord Ordinary when there
had been no material change of circumstances.
That previous decision, of course, related specifically to a list of
witnesses naming the pursuer and the two GPs, as well an expert witness. The list of witnesses proffered at the
commencement of this proof contained three of the same people, namely the
pursuer and the two GPs. I took the
view, therefore, that I had to proceed on the basis that it was not competent
for me to allow those three witnesses to be put on a list of witnesses received
on the first day of the proof. The
position of Mr Russell, who had not featured on the previous list rejected
by the Lord Ordinary on 27 June, was rather different, and I shall
return to this separately.
[11] I was, however, persuaded that even in respect of the pursuer
and the two GPs, this was not the end of the matter. As I have already observed, Rule 43.6
contains no sanction for a failure to lodge a list of witnesses in time or at
all. The effect of the interlocutor of
27 June was simply that the pursuers were not allowed to lodge a list of
witnesses late. In those circumstances,
the provisions of Practice Note 8 of 1994 come into play. Whilst I reject the submission that the
pursuer has an absolute right to call a witness, despite him not appearing on a
list or there being no list at all, that Practice Note appears to me to entitle
the Court to allow a party to call a person as a witness notwithstanding that
he is not on any list, subject to such terms as the Court thinks fit. This is in no way reviewing or second
guessing the decision to refuse a party permission to lodge a list of witnesses
late. Rather it is the second stage,
namely the process by which a party who has failed to lodge a list, and perhaps
has been refused leave to lodge a list late, can ask the Court to exercise its
discretion to allow him, nonetheless, to call a witness. In such circumstances the Court will be
guided by what is necessary and just, having regard to the interests of both
parties and, of course, to the interests of justice.
[12] On this basis, I had no difficulty in accepting the submission
that the pursuer could be called as a witness.
It is arguable that the pursuer himself does not need to be put on a
list of witnesses, but to my mind the better practice is that he or she should
be so named. Be that as it may, it must
have been clear to the defenders from the beginning that the pursuer would want
to call evidence and they must have been prepared for that contingency. To do him justice, Mr Cowan did not strongly
press his opposition to the pursuer giving evidence if, as I have held, I had
power to allow this. Nor did Mr. Cowan
strongly oppose the pursuer being allowed to call evidence from the two
GPs. One of them was on the defenders'
list, so it was known what she was likely to say. The other was not on the defenders' list, but
Mr. Cowan was content that he be called provided that the defenders were given
a copy of his precognition and also that the defenders were allowed the
opportunity to precognosce him further before he gave
evidence. These conditions seemed to me
to be entirely sensible to avoid prejudice to the defenders and they were
agreed to by Mr. Stuart. On that basis I
allowed the pursuer to call the two GPs as well as the pursuer personally. In the event, only one of the GPs was called
to give evidence, but nothing turns on this.
[13] The position of Mr Russell was somewhat different. The interlocutor of 27 June had made no
ruling on any list seeking to include him as a witness. It seemed to me, therefore, that I was not in
any way constrained by that interlocutor when entertaining a submission that
the pursuer should be allowed to call him as a witness. I was, however, concerned with the prejudice
to the defenders that would be caused if he was called as a witness on all
matters, including matters on which they had not had the opportunity (or
possibly the inclination) to precognosce him. In many cases such a problem can be dealt
with by an adjournment, possibly even a discharge of the proof. In the present case, in the context of a four
day proof, a short adjournment would not have been sufficient to enable the defenders
to prepare themselves on an area of the case which they had not previously
investigated. I could not discharge the
proof, since this would be contrary to the interlocutor of 27 June and
would be, in effect, achieving by the back door what had been refused by the
front. I decided that the fair order to
make was to allow the pursuer to lodge an amended list of witnesses containing
only the name of Mr Russell, but on terms that his evidence was to be limited
to the subject matter addressed in his report which had been intimated by the
defenders to the pursuer, namely the back pain suffered by the pursuer and its
link, causatively, to the incident on 15 June. This solution was not wholly satisfactory but
it seemed to me that it was the best that could be done in the circumstances.
Limitation
[14] The second problem for the pursuer concerned limitation. The summons was served on the defenders on 13 July 2004, nearly a month
after the expiry of three years from the first incident, on 15 June 2001. The defenders in their defences pled that the
action in respect of that incident and the injuries arising therefore was time
barred. In the ordinary course one might
expect the pursuer, during the adjustment period, to respond to that plea,
either by setting out facts relevant to establishing a later commencement of
the triennium, under section 17(2)(b) of the
Prescription and Limitation (Scotland) Act 1973, or to aver matters relevant to
the exercise of the Court's discretion under section 19A of the Act. It is not uncommon for the discretion to be
exercised in favour of allowing a case to be brought out of time in light of appropriate averments by
the pursuer, particularly when the delay is short and the action will proceed
in respect of other, possibly overlapping, injuries. In this case the pursuer neither adjusted his
pleadings nor made any amendments to answer the limitation defence. Accordingly, when the case came to proof,
there was on Record an unanswered, and therefore ex facie good, limitation defence to the first of the two incidents
sued on.
[15] This difficulty became apparent during the course of the
pursuer's evidence on the second day of the proof, when Mr Stuart sought
to lead evidence from him as to his own knowledge of the seriousness of his
injury and, possibly, as to his own state of mind regarding the possibility of
bringing proceedings. Objection was
taken that there was no Record for any such line of evidence. After some discussion, and interruption to
the evidence of the pursuer (whilst other evidence was interposed) so as to
allow time for Mr Stuart to consider the matter, Mr Stuart moved me to
allow the Record to be amended by inserting an averment that "the pursuer did
not instruct solicitors in connection with, or to raise proceedings against the
defenders in respect of, the injury suffered by him as hereinbefore
condescended upon until after 15 June 2004", that date being the date of expiry
of the triennium. The proposed amendment
continued: "In all the circumstances of the case it would be equitable for the
Court to exercise its discretion" under section 19A of the Act. Mr Stuart submitted that the relevance
of this averment was that the pursuer could not blame his solicitors for the
claim in respect of the first incident not having been brought within the three
years. That, in itself,
could, he submitted, be a sufficient ground upon which the Court might exercise
its discretion to allow the action to proceed out of time. Whilst I could readily understand why
Mr Stuart had couched the amendment in such limited terms, since going
further would have raised all sorts of issues upon which the defenders could
properly have said that they wished to investigate the facts, it seemed to me
that an amendment in this limited form suffered from the same problem. The problem is that if the Court had been
asked to exercise its discretion under section 19A, it must be made aware
of all the circumstances, or at least all the circumstances that both the
pursuer and the defenders wish to put before it. For the pursuer to seek to amend on the
second day of the proof, by making averments about one circumstance only, would
put the defenders in an almost impossible position, since the onus would be on
the defenders to set out other circumstances which they would wish to contend
were relevant to the exercise of the discretion. Those circumstances might involve, for
example, averments as to the pursuer's state of knowledge, upon which they
might wish to precognosce others, including his
workmates, as to what he had said or done at various times before the expiry of
the triennium. They might include many
other matters. But on the second day of
a four day proof it was clearly not possible for the defenders to make the
necessary investigations, let alone make informed averments of fact. They came to proof on the basis that their
time bar plea had not been answered; and that there was no need to them to
investigate any matter relevant to the exercise of discretion since the pursuer
had not raised that issue. It seemed to
me that it would be quite unfair to the defenders to allow the pursuer to raise
these points at this stage, effectively allowing the pursuer to pick his own
ground for arguing for the exercise of the discretion under section 19A of the
Act and depriving the defenders of the opportunity of putting other relevant
matters before the Court. In those
circumstances I ruled against allowing the amendment to be made. Mr Stuart sought to add a further
averment, namely that "the pursuer was not aware of his entitlement to raise an
action nor believe that there were any real prospects of succeeding in such an
action until after 15 June 2004". I
refused that proposed amendment for the same reason. It put only a partial picture before the
Court at a stage where it was too late for the defenders either to investigate
that allegation or to put before the Court other relevant matters.
The pursuer's case
[16] In consequence, the pursuer's proof proceeded
under two significant handicaps. First,
he could not seek to recover from the defenders in respect of any back pain
attributable to the incident of 15
June 2001. Second, he had no
expert evidence linking his current back pain to the work on which he was
engaged between late July and late September 2001.
[17] The pursuer gave evidence as to the accident on 15 June 2001 whilst lifting the
cement mixer. In view of what I have
said earlier about this part of the claim being time barred, I need not go into
the detailed evidence as to how that accident is alleged to have happened. It must not, however, be assumed that any
breach of duty would have been established.
15 June 2001 was a
Friday. The pursuer's evidence was that
on the following Monday he had gone into work to report the accident and "to get
it into the accident book". On the
Tuesday he did not work. The following
day, Wednesday 20 June, he attended at his local health centre and saw a
Dr Woolard.
He was a locum at the practice
and was not called to give evidence. However, his note confirmed that the
pursuer had attended on that day reporting a "sudden onset [of] lower back pain
this week". The entry also recorded that
the pursuer's left shoulder was giving him trouble, which was attributed to the
action of lifting slabs whilst levelling in the course of his general duties
for the defenders. The pursuer was given
a sick line until the end of the month.
On 2 July he attended the health centre again and, although there was no
entry recording this in the GP records, was probably given another sick
line. On 13 July he again attended the
health centre. On this occasion he saw
Dr Stevens. The entry in the GP records
reads: "Back still painful but getting better".
The pursuer was given acupuncture.
Again, the GP records do not show that a sick line was given, but the
pursuer was adamant that one was given and a computer entry generated by the
health centre tended to confirm that.
[18] The pursuer's evidence was that this third sick line was for
one week only and was endorsed to the effect that the pursuer was able to carry
out "light duties only" on his return to work the following week. The computer entry relating to that episode
simply refers to "back pain", as though this is all that was endorsed on the
sick line. On the other hand, Dr Stevens
in his evidence confirmed that he would sometimes endorse a sick line with some
expression such as "light duties only"; and he was minded to think that, if the
pursuer said that that was what he did, then he
probably did that. I do not think that
this evidence was wholly satisfactory, but the defenders led no evidence to
contradict the pursuer on this aspect of the case and I am prepared to hold on
balance of probabilities that the sick line was indeed endorsed "light duties
only".
[19] When he returned to work on 23 July 2001, the pursuer was assigned to work on the
roof and subsequently to paving and excavating work. He described this as heavy duties, not light
work. I accept that description. The concrete slabs which he had to lift
weighed about 30 kg each. He also
had to carry insulation up some internal stairs which, although not heavy, was
awkward to handle. His work would have
involved repeatedly bending down and straightening.
[20] The pursuer said that he handed in his sick line to the
defenders, so they would have known from that that he was certified fit for
light duties only. I heard no evidence
from the defenders as to this, and the sick line was not produced, but the
likelihood is that it was handed in at a time when the pursuer was still off
work for the purpose of recording him as sick, so that he could receive sick
pay. In all probability, it was sent to
the defenders' Wages or Accounts Department.
I do not think that this would necessarily be sufficient in itself to
put the defenders on notice that the pursuer was not to be given heavy
work. However, I need not decide that
because the pursuer said that on being assigned the work on the roof he told
the site manager, Mr. Jones, that he was not supposed
to be doing this sort of work - he was supposed to be doing "light duties"
only. He said that, in response,
Mr Jones told him that that was the work he had been assigned to. The general effect of what Mr Jones told
him was: "It's the only job we've got for you, you can either do it or you can
go home". The pursuer decided to do the
work. In light of the pursuer's
evidence, and the fact that Mr Jones was not called to give evidence to
contradict it, notwithstanding that he was on the defenders' list of witnesses,
I am prepared to accept on balance of probabilities that the pursuer did tell
Mr Jones on more than one occasion that he was meant to be doing light
duties only.
Discussion on liability
[21] It does not follow from this, however, that the defenders were
necessarily in breach of a duty of care owed to him not to give him heavy
duties. Although a statutory case was
pled, Mr Stuart confirmed that in respect of the work carried out between late
July and late September, the pursuer pursued only a common law case of negligence. He said that the defenders owed the pursuer a
duty of care not to expose him to a reasonably foreseeable risk of injury. He referred me to a passage in Walker, The Law of Delict
in Scotland, 2nd ed. at page 197 to the effect that where
the defender actually knows or should reasonably have foreseen that a person of
unusual susceptibilities might be injured by want of care on his part,
reasonable care involves more care than is normally or usually taken. He also referred me to a passage at
page 565 of the same text where it is said that the employer's duty of
care is owed to each individual workman, and in organising the system of
working the employer must have regard to any known infirmities, weaknesses or
peculiarities of particular individuals.
Mr Stuart also referred me to the well-known case of Paris v Stepney Borough Council [1951] A.C.367
as authority for the same proposition.
[22] I accept the principles there set out. But it is not clear to me what the defenders
were supposed to do which they did not do.
I note that, at page 565, Walker
states that if the employee knows there is a risk and decides to take it, there is no breach of duty by the employer if the
employee suffers injury. This seems to
me also to be correct. According to the
pursuer's case, the position here was that the pursuer knew that he was
unsuited for heavy work. He told the
defenders that he was unsuited for heavy work.
The defenders said, perhaps not surprisingly given that they are a firm
of builders, this is the only work we have got.
In those circumstances, if the pursuer says that he will do the work,
knowing that it is work for which he is physically unsuited because of his
pre-existing condition, I cannot see how the defenders can be criticised. Mr Stuart submitted that the proper
interpretation of what Mr Jones told the pursuer was, in effect, that if he did
not agree to do that work he would be sacked.
This may be correct, although another interpretation might be that Mr Jones
was saying: "If you cannot do this work then go back and consult your GP and
get another sick note". On balance I do
not think that what Mr Jones is reported to have said carries with it the
implication for which Mr Stuart contends.
However, assuming that it does, so what?
I do not see that the position is any different from that of a man who,
in applying for work for the first time, seeks employment with a firm of
builders who offer him a job doing heavy work for which he is physically
unsuited. If he tells them that he is
unsuited for that work, why should they not say: "Then there is no job for you
here". It seems
to me that the pursuer's case against the defenders has become confused as a
result of the fact that he was originally suing also in respect of the incident
on 15 June. If he had a good claim
in respect of that incident, and that incident had caused the back trouble
which made him unsuited to the subsequent heavy work, he could properly say
that he should not be in a position of being dismissed because of his inability
to do the heavy work to which he was assigned at the end of July. But his complaint would then be based upon
the defenders' fault in respect of the incident of 15 June which had made
him unsuitable for that work. Since he
cannot sue in respect of that incident, the better analysis is that he comes to
the events of late July onwards on the basis of having suffered an injury
through no fault of the defenders. They
can offer him work. If he thinks he is
unsuitable for it he need not do it, but he cannot complain if they say there
is no other work. If he tells them he is
unsuited for it, but agrees to do it nonetheless, they cannot be criticised.
[23] Those considerations are sufficient, in my view, to lead me to
the conclusion that the pursuer's case against the defenders must fail. But in case the matter should go further, I
should deal with other matters that arose during the course of the evidence and
submissions. I shall do so briefly.
Causation
[24] The GP records confirmed that the pursuer was visited at home
on 28 September 2001
by his doctor. That is consistent with
his evidence that he woke up that morning and was unable to get out of bed
because of back pain. It is the
pursuer's case that he was unable to work from that time until the present day. I am prepared to accept that that is
correct. But the question has to be
resolved whether that condition resulted from the incident of 15 June 2001, or from the work between late July and late September
2001, or from a combination of both and, if so, to what extent each was
contributory. The GP records did not
help on this, though they cast some incidental light on matters.
[25] Before looking at those records, it is important to note that
the pursuer told me in evidence, and had also told Mr Russell when he was
interviewed by him, that he had experienced pain in the lower back some five
times over the past twenty years, on each occasion having to go off work for
approximately six weeks. The two
most recent occasions, at least so far as the GP records revealed, were in 1990
and 1999. Against this background, it is
instructive to look at certain entries in the GP and hospital records.
[26] The entry in the GP records for 20 June 2001, when the pursuer
first attended the health centre after the incident of 15 June, referred
not only to the sudden onset of back pain but also to his left shoulder giving
him trouble as a result of his work in lifting and levelling slabs. It contains a remark that the pursuer thinks
he has been referred to neurology regarding the numbness and cramps in his legs
and knees over the last two years.
The entry for 2 July 2001
notes that the appointment with neurology is now fixed for May (2002) but that
the doctor would try and bring it forward.
There was a discussion about there being no record of the referral in
November. This somewhat oblique entry is
a reference to the fact that although his GP intended in November 2000 to refer
him to the neuro-surgical unit at the Victoria
Hospital, she had failed to do
so. She therefore wrote to the hospital
on 20 June asking for an assessment of the pursuer, and explaining that he has
for several months been complaining of numbness in the lower legs and feet and
getting some cramps as well as episodes of lower back pain. An accompanying handwritten note asks if the
pursuer could be seen fairly quickly, because the earlier failure to refer him
had only come to light when the pursuer presented himself at the surgery with
his further incident of back pain.
[27] On 4 July, after the pursuer's second visit to the health
centre, his GP wrote to the neurology department at the hospital asking them to
see the pursuer urgently since she was concerned that he has been complaining
of lower back pain "which has deteriorated recently"; and was also complaining
of cramping pain in his calves when he walks and numbness in both lower
legs. The letter went on:
"Unfortunately he has not
been allocated an appointment until 22.5.02 and tagged on to his previous
referral this gentleman was to have been referred to yourselves in November of
last year but we can find no record of this occurring".
In fact, the Department of
Neurology at Victoria Hospital
was able to see the pursuer on 8 August.
The letter from the consultant neurologist reporting upon this meeting
identified the problems as "probable peripheral neuropathic
disturbance. Associated
back pain". The letter went on to
say:
"I think you are
correct that there is a neurological problem affecting his lower limbs. He has predominantly a peripheral neuropathic disturbance with loss of light touch, pinprick
and joint position sense below the knees bilaterally. There is no loss of strength however although
the reflexes in the knees are very sluggish.
Of late he has had some low back pain which might indicate some problem
in the region of conus".
An MRI scan was carried out.
[28] On 25 September 2001,
just before the day on which the pursuer was unable to move in the morning, his
GP wrote to the Department of Neurosurgery at Ninewells Hospital
asking for the pursuer to be seen. The
letter explained that he had been attending the neurologist for investigation
of numbness in his feet and had recently had an MRI scan. Since the MRI scan, the letter continued, the
pursuer had had a considerable deterioration in his symptoms with lower back
pain and right sciatic pain. It went on
to say that there was a slight weakness in his right leg but he had no
sphincter disturbance, and wondered whether he had a worsening of his disprolapse.
[29] He was seen at the Department of Surgical Neurology at Ninewells Hospital
on 20 November 2001. The letter from the Department to his GP
identified his "current problem" as "a four week history of right leg pain and
associated back pain". This period of
four weeks would take the matter back to approximately the time when the
pursuer was unable to work at the end of September. The letter continued that "the pain radiates
down the anterior thigh and he has felt that he is dragging his legs". It noted that he was being examined for
neurological problems. It concluded that
he was "being appropriately investigated" by the consultant neurologist.
[30] A letter of 21 November
2001 from the consultant neurologist gave the results of an EMG
study on the pursuer. It diagnosed a
fairly severe lumbosacral polyradiculopathy. It suggested that the main problems lay at
the level of the nerve roots rather than a diffuse peripheral neuropathy, which
was the consultant's original suggestion when he saw him in August. It was recommended that the neurosurgeons
should be made aware of the problem.
[31] There is no hint in any of the medical records that the pain
which the pursuer was experiencing at that time was connected in any way with
the work to which he was assigned between July and September 2001. It is clear that he never suggested to his GP
that it was anything to do with this.
[32] The only expert medical evidence led was that of Mr Russell,
who is a consultant neurosurgeon. As I
have said earlier, his report, which the pursuer lodged in process, focused on
the pursuer's present condition insofar as it related to the incident of 15 June 2001. The condition of which the pursuer complained
to Mr Russell was a low back pain which was constant and nagging in nature
and which was improved by analgesia but made worse by sneezing and
bending. However, Mr Russell's
conclusion in his report was that the pursuer had an exacerbation of low back
pain as a direct result of the incident in June 2001. He concluded that there was no acute nerve root
damage accompanying that pain and that the pain was entirely mechanical in
origin. He said that it was his opinion
that the pursuer's present attack of low back pain was merely a continuation of
his known problems with his lower back.
He added this:
"For someone
with a significant history of low back pain, Mr Quigley was working at the
wrong job and it is my opinion that sooner or later he would have had to give
up his occupation as slab layer because of low back problems".
[33] In view of the ruling that he could not examine Mr Russell in
relation to back pain caused by the work which the pursuer undertook between
late July and late September 2001, Mr. Stuart sought to lead Mr Russell on
the question of "acceleration" of his injuries.
However, there was inevitably a difficulty in the questions being so
confined, and in the course of the examination in chief I upheld an objection
to Mr Russell being referred to the averments in Article 5 concerning the
work in the period July to September 2001.
As I understood his evidence, Mr Russell confirmed his evidence that the
pursuer's present back pain could be dated back to the events of 2001, by which
I took him to mean the events of June 2001 which he had covered in his report,
and that it was also a continuation of his known history of multiple
attacks. As he emphasised again, people
with a history of back pain should avoid heavy work because heavy work will
pre-dispose them to another attack. Mr Russell
said that a person in that condition and with that history of back pain might
work for several years before doing something "silly" so as to trigger another
attack. I understood this to be in
answer to a question about his past record of back pain and the significant gap
between 1990 and 1999; rather than a prognosis that but for something happening
after June 2001 Mr Russell could have been expected to work for a
considerable period without further back pain.
Mr Russell was asked whether the pursuer was likely to recover from the
episode of pain if there was no further insult.
There was an objection to this line, but before that objection was made
my note of Mr. Russell's evidence, and those of
parties in Court, was that it rather depended upon what was meant by "light
duties". That led, of course, directly
into the averments relating to the events of July to September 2001, which
were off-limits for the pursuer in respect of Mr Russell's evidence.
[34] From this inevitably limited evidence, Mr Stuart sought to
construct a case to the effect that the work which the pursuer was required to
undertake between July and September 2001 had accelerated the pursuer's
injuries. He accepted that the pursuer
would not have worked until the age of 65.
But he sought to suggest that despite the back pain suffered as a result
of the June 2001 incident, the pursuer might have worked for several years but
for the later heavy duties to which he was assigned in July to September that
year. For this he founded upon the
answers from Mr Russell to which I have referred. But for being put back on heavy work, he
submitted, the pursuer was good for another several years. He said the question for the Court to assess
was: how long would the pursuer have managed to work
but for having been assigned to heavy duties in July to September 2001?
[35] This is a question which, to my mind, is incapable of answer on
the present state of the evidence. There
was no expert evidence linking the heavy duties to which the pursuer was
assigned in July to September 2001 with any exacerbation or acceleration of his
back pain. The contemporaneous medical
records suggest no such link. In terms
of the referrals by his GPs, the suggestion is that they were regarding it as
part of a long-term problem with either neurological or neurosurgical implications. Mr Russell, who gave the only expert
evidence, gave no evidence at all causatively linking the work on which the
pursuer was engaged during that period to the injuries of which he presently
complains. He could, however, link those
injuries to the incident alleged to have happened on 15 June 2001.
The only matter upon which Mr Stuart could rely was an answer to
the effect that the pursuer was likely to recover from his injuries to some
extent if there was no further insult.
But it is going much too far to derive from this a finding that, by
inference, it must have been the work between July and September 2001 which
brought on the further pain. I simply
cannot accept that such a case is made out on the evidence.
[36] On this basis I am not prepared to make the findings sought by
Mr Stuart. On the evidence as it
stands, I cannot find that the pursuer's current problems were caused or
contributed to by him undertaking the duties to which he was assigned during
the period from July to September 2001.
It follows, therefore, that even if I had held that the defenders were
negligent in assigning those duties to him, I would have held that that
negligence was not shown to have caused any loss or damage.
Quantum
[37] In those circumstances it is unnecessary for me to deal with
the issues of quantum raised in argument.
Parties helpfully agreed a joint minute dealing with the pursuer's
earnings so that, if the matter should go further, there is material upon which
agreement can be reached or a judgment made about these matters. I was treated to an interesting argument as
to how one should approach a case where a person with a pre-disposition to
injury had that injury "accelerated" by a breach of duty on the part of the
defenders. In that context, I was referred
not only to the valuation for an award in respect of back pain, but also to the
approach of Mustill, J. in Thompson v Smith's Ship
Repairers (North Shields) Limited [1984] Q.B. 405 at 437-448; and that of
the Court of Appeal in Rugby Joinery UK
Limited v Pamela Whitfield [2005]
EWCA Civ. 561.
Had I reached this stage of my decision-making, I would have adopted an
approach which endeavoured to reflect the additional injury caused by the
events in July to September, that additional injury being the acceleration,
rather than the increase in gravity, of the back pain. However, I do not need to say any more about
this matter.
Conclusion
[38] In the circumstances, since the pursuer has not proved his
case, I shall simply grant decree of absolvitor.
