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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 119
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PD1051/04
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OPINION OF LORD MACPHAIL
in the cause
GRAEME CARLING
Pursuer;
against
W P BRUCE LIMITED
Defenders:
________________
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Pursuer: Ivey, Q.C., Wade; Lindsays,
W.S.
Defenders: Peoples, Q.C., Young; Brechin
Tindall Oatts
10 July 2007
Introduction
[1] This
is an action of damages for personal injuries. The pursuer was injured in a road
accident on 25 September 2002
when the car he was driving collided with a tractor driven by an employee of
the defenders. The defenders admit liability and do not raise any issue of
contributory negligence. The pursuer sues for damages of £900,000. He avers
that as a result of the accident he suffered not only physical injuries,
including a brain injury, but also a post-traumatic stress disorder (PTSD)
which he associates with his excessive consumption of alcohol since the
accident. He has not worked since the accident. The defenders' position is that
he suffers from PTSD which is moderately severe to severe in nature; and that
if he moderated his consumption of alcohol his PTSD would be treatable and he
could return to some form of work.
[2] I
shall begin by describing the accident and setting out other facts which are
not in dispute. I shall then discuss the credibility and reliability of the
pursuer, the only witness whose veracity was criticised at the hearing on
evidence. Thereafter I shall review the medical evidence and make findings as
to the nature, extent and consequences of his condition. Finally I shall assess
the damages.
The accident
[3] While
the trustworthiness of the pursuer's evidence was adversely commented on in
other respects, there was no dispute as to the reliability of his account of
the accident. It was clearly a very frightening experience. The accident
occurred on 25 September 2002
at about 7.15 p.m. on the A94 road
between Forfar and Perth, which is
a single carriageway. The pursuer was driving his car in the direction of Perth
at about 50 mph. It was not a built-up area and the speed limit was 60
mph. Ahead of him, a tractor towing a
trailer came out of a farm road and went straight across the A94 road and into
a field. It was closely followed by a second tractor and trailer, which emerged
from the farm road into the path of the pursuer. It became obvious to the
pursuer that the second tractor-driver had not seen him. The tractor and
trailer were occupying the whole width of the road. The pursuer thought he was
going to be killed. He braked as hard as he could, and aimed for the rear wheel
of the tractor. The car collided with the side of the tractor. The steering
column and steering wheel were pushed by the impact into the pursuer's chest.
His head jerked forwards and hit the area where the upper part of the
windscreen met the roof of the car. He saw what he took to be smoke, and
thought there was going to be an explosion. He could not move because the
steering wheel was against his chest and his left leg was trapped in the
footwell. He managed to release his seat-belt, slide his seat back an inch or
two and free his leg. He was able to slide up, put his head out of the driver's
window and put his foot on the gear-lever housing. Although he heard voices
telling him to stay where he was, he was able to get his head and shoulders out
of the window and push his whole body through the window and on to the ground.
He landed on the road, on his left shoulder
and leg, and rolled away from the car. He thought he was dying. People from a
car which had been travelling behind him pulled him to the side of the road.
The fire, police and ambulance services arrived, in that order, and he was
taken to Ninewells Hospital,
Dundee.
[4] I
am satisfied that the pursuer's account of the whole event, and his
descriptions of what he was thinking at the time, are accurate. I am also
satisfied, from the coherence and continuity of his account, that he probably
did not suffer any loss of consciousness. When speaking of what occurred after
the impact, he had some difficulty in breathing, and several times he raised
his hand to his chest. He explained that when he tried to describe the accident
he felt pains in his chest and he had problems with his breath: he had a clear
picture in his mind and he relived it.
Other undisputed facts
[5] I
shall outline the material undisputed facts about the pursuer and his
post-accident condition, medical treatment and examinations before discussing
the criticisms of his evidence. He was
taken from the scene of the accident to Ninewells
Hospital. It was found that he had
sustained chest bruising and a head injury. He was discharged the same day, but
he was in bed for some six weeks with chest and other pains. On 30 September 2002 his general
practitioner, Dr Alexander Young, found that he had sustained a whiplash injury
which was causing pain in his neck and shoulders. He began to make some degree
of recovery from his physical injuries, but he had psychological problems.
[6] I
shall discuss these injuries and problems in detail later. The basic facts are
as follows. The pursuer was a successful business man who was justly proud of
having raised himself from modest beginnings. He left school at 15 years of age
without any certificates. He described himself to Dr Hull, one of the medical
witnesses, as "a working class boy from Kirkton [in Dundee],
made good". Through his own efforts he had become by the time of the accident
the chief executive and managing director of the North East Ice and Cold
Storage Company Ltd. He was married, with three children and five
grandchildren. He worked hard, and he enjoyed a social life. He normally did
not drink during the week, but he drank at the weekend. He was confident, liked
to be in control, and regarded himself as the rock on which his family could
depend.
[7] After
the accident, there was a dramatic change. He found that he could not
concentrate on his work, and had to give it up. His family found him difficult
to deal with. He became aggressive towards them, verbally and on a few
occasions physically. He was irascible, reclusive and emotionally isolated from
them. He could not cope with the noise his grandchildren made. He spent most of
his time alone upstairs, watching television and smoking and drinking. He began
to drink and smoke to excess. He neglected washing, shaving and changing his
clothes. If it was necessary for him to be taken anywhere by car, he was a very
nervous and agitated passenger. He continues to behave in that way. His two
sons, who were living at home at the time of the accident, tried to avoid him.
They later left home. His wife left home for a time in 2003, but went back to
the house every day to make sure he was eating and to try to look after him. She returned to live at the house, but she
still goes and stays at her mother's house if she feels "it's getting too
much." All these matters were spoken to in the unchallenged and acceptable
evidence of the pursuer's wife, Mrs Margaret Carling, and his two sons, Graeme
Carling Junior and Wayne Carling.
[8] The
details of the pursuer's contact with medical services and medical examiners
are as follows. In December 2002 his general practitioner, Dr Alexander Young,
referred the pursuer to the local community mental health team. In January 2003
he was seen on behalf of the team by Mr Stephen Martin, a clinical nurse
specialist in cognitive behavioural therapy (CBT). Mr Martin tried to treat the
pursuer with CBT, but did not succeed. The pursuer was admitted to Murray
Royal Hospital,
Perth, from 28 February to 20 March 2003, and again from 11 to 24 April 2003. Mr Martin then
referred him to Dr David Tait for psychodynamic psychotherapy. Dr Tait assessed
the pursuer as unsuitable for such therapy. He arranged for the pursuer to be
examined by Dr June Gilchrist, a neuropsychologist. Dr Gilchrist examined
him and reported on 20 November 2003
(no. 6/1 of process). She examined him again and produced a further report on 28 August 2005 (no. 6/29 of process).
In December 2003 the pursuer came under the out-patient care of Dr Alastair
Hull, a consultant psychiatrist, at Murray
Royal Hospital.
Dr Hull wrote two reports on the pursuer: no. 6/3 of process, dated 16 April 2004, and no. 6/30 of
process, dated 13 September 2005.
Mr P K Rickhuss, a consultant orthopaedic surgeon, examined the pursuer and
prepared reports dated 23 January 2004 (no. 6/2 of process) and 12 September
2005 (no. 6/32 of process), the terms of each of which are agreed by joint
minute to be equivalent to his direct oral testimony. Mr William Taylor, a
consultant neurosurgeon, examined him on 21 June 2004: his report is no. 7/17 of process. On 17 August 2004 the pursuer was
examined by Dr Martin Livingston, a consultant psychiatrist, who produced a
report dated 20 August 2004
(no. 7/18 of process). On 10 September
2004 he was examined by Professor T M McMillan, Professor of
Clinical Neuropsychology at the University
of Glasgow, who issued a report
dated 19 October 2004 (no.
7/19 of process). Professor McMillan also issued a supplementary report, in
circumstances to be described, dated 6
July 2005 (no. 7/27 of process). Professor Robin L Blair, Professor
of Otolarynology at the University of
Dundee, examined the pursuer on 31 August 2005 and wrote a report
dated 13 September 2005
(no. 6/31 of process). Professor Blair's report is agreed by joint minute to be
equivalent to his direct oral testimony. In May 2005 the pursuer was discharged
from the care of Dr Hull to the care of the North Perthshire Community Mental Health Trust. He remains on medication.
[9] Mr
Martin, Dr Young, Dr Gilchrist, Dr Tait and Dr Hull were called as witnesses
for the pursuer. Professor McMillan, Mr Taylor and Dr Livingston were called
for the defenders. The reports by Mr Rickhuss and Professor Blair, as I have
noted, were the subject of agreement by joint minute.
Credibility and reliability of the pursuer
[10] Although the veracity of the pursuer's account of the accident
was not disputed, the defenders submitted that he had consciously exaggerated in
his evidence on other matters and that he had been inconsistent in material
respects when providing information to the medical witnesses. These are issues
of importance, since those witnesses were agreed that they relied heavily on
the accuracy of the information given to them by the pursuer when reaching
their conclusions. It is therefore necessary to assess his credibility and
reliability before considering the medical evidence.
[11] In attacking the credibility of the pursuer, the defenders
relied on inconsistencies by the pursuer in his reporting of certain matters to
the medical experts, and on a video-recording and observations of the pursuer
which had been made without his knowledge by private investigators.
[12] First, in his reporting of the accident the pursuer gave the
experts differing accounts as to whether he could recall the impact. He told Dr
Gilchrist that he had recall of the impact (no. 6/1 of process, paragraph 1),
which is consistent with his evidence in court. On the other hand he told Dr
Hull that he was not able to remember the impact (Dr Hull's contemporaneous
manuscript note of his interview, no. 6/24 of process, page 80, and his report,
no. 6/3 of process, paragraph 10.04).
[13] The pursuer also gave inconsistent accounts of his suffering
from nightmares. In November 2003 he told Dr Gilchrist that he suffered from
nightmares but they were "usually about him rejecting his family and not about
the accident" (no. 6/1 of process, paragraph 6.1). On 3
December 2003 he told Dr Hull that he had "brutal nightmares"
(notes, no. 6/24 of process; report, no. 6/3 of process, paragraph 12.00)
daily, and "many of the nightmares would be directly related to the accident"
(notes of Dr Hull's evidence, page 679). In the witness-box the pursuer agreed
that he had told Dr Tait in June 2003 that not a night went by without his
being troubled by his clearly reliving the accident (notes of evidence, page
217). He said that the nightmares were always there every night for a period of
six or seven months after the accident, so that what he had told Dr Gilchrist
was correct (page 218). In re-examination he said that had had nightmares about
the accident and other matters over the whole period since the accident (page
263).
[14] There was also an inconsistency as to whether in or about June
2004 the pursuer was able to go out of the house into the garden. Dr Hull,
having seen the pursuer on 30 June
2004, intended "to set up a behavioural exposure programme at a
very slow rate" for him "and this is just with him sitting in the back garden
at the quietest time of the day for 30-45 minutes" (no. 6/24 of process, page
125). Dr Hull said in court, "And actually he could not manage that, he simply
couldn't manage that without prolonged periods of anxiety" (notes of evidence,
page 528). On 21 June 2004,
however, he had told Mr Taylor that he walked in the garden: "He described his
walking as being restricted to round his garden, which is a few hundred yards
at a time. This is limited by low back pain" (report, no. 7/17 of process,
paragraph 5.3). Mr Taylor said in evidence, "the indication for that was it was
a physical restriction with his back, his back would become too sore for him to
walk any further than that, rather than it being a motivational problem" (notes
of evidence, page 925). The pursuer said in evidence that he had said that his
walking was limited by low back pain, but he denied telling Mr Taylor that his
walking was restricted to round his garden (notes of evidence, pages 99-100).
[15] A further inconsistency was concerned with the pursuer's
suffering from diarrhoea. As I have noted, he went to see Dr Livingston on 17 August 2004. The appointment was
at the Southern General Hospital, Glasgow. The pursuer had to travel there from
his home in Newtyle. He told Dr Livingston that in anticipation of that journey
he had suffered from diarrhoea for several days: he attributed the diarrhoea to
nervousness (report, no. 7/18 of process, page 5; notes of evidence, page
1004). But a few weeks beforehand, on 28 July 2004, Dr Hull had reported to Dr Young,
the pursuer's general practitioner, in relation to his medication, that the
pursuer had "noticed one or two side-effects with the most significant probably
being intermittent diarrhoea" (no. 6/24 of process, page 129; notes of Dr
Hull's evidence, page 661). The pursuer himself was emphatic in the witness-box
that he had never had a problem with having diarrhoea as a side-effect of
medication (notes of evidence, pages 161-162).
[16] The pursuer also challenged certain statements attributed to
him by the medical experts in their reports. Dr Livingston said in his report,
in a narrative of what the pursuer told him at examination, "When Mr Carling
did drive he experienced quite intense symptoms passing the accident site" (no.
7/18 of process, page 5). The pursuer denied that he had said that to Dr
Livingston (notes of evidence, pages 106-107). Dr Gilchrist said in her second
report (no. 6/29 of process, page 2) under the heading "Current reported
physical problems", "He is aware that his right arm is not as it was and seems
to have a degree of weakness. However as he never does anything, he never has
to test it out by lifting anything." The pursuer denied making any complaint to
her about his arm, and said there was nothing wrong with it (notes of evidence,
page 201). Professor McMillan records, "He said he is in his house seven days a
week and never goes out" (no. 7/19 of process, page 5). The pursuer denied that
he told Professor McMillan that he never went out (notes of evidence, page
139).
I have already noted the pursuer's
repudiation of the statement attributed to him by Mr Taylor about walking round
the garden.
[17] A further apparent discrepancy is that on the one hand, the
pursuer indicated in the witness box that he was not conversant with the
medical witnesses' reports and was not involved in the preparation of this
litigation (pages 186-188, 203-204); and
that he avoided using the telephone because he did not want to talk to anyone
(page 56). On the other hand Graeme Carling Junior said that while he,
Graeme Junior, was looking after the litigation, the pursuer was given copies
of all the correspondence and wanted to know what was going on. The pursuer
would often telephone him and swear at him because he wanted some correspondence
or because there was something he did not understand, to such an extent that
Graeme Junior could not put up with it any longer, although at the same time
the pursuer had a "couldn't care less" attitude (notes of evidence, pages
572-580). In addition, the pursuer noticed an error of fact in one of Dr Hull's
reports (no. 6/30 of process) and caused his solicitors to draw it to Dr Hull's
attention (notes of evidence, page 638).
[18] When determining what significance to attach to these matters, I
accept that it would not be reasonable to expect meticulously consistent
reporting from the pursuer. I am not inclined to attach importance to his
differing accounts of his nightmares, but it is difficult to understand why he
should have given two different accounts of whether he recalled an event as
important as the impact. His evidence on that matter in court was acceptable,
as I have indicated, and it is curious that he should have given a different
account to Dr Hull. It is also hard to see why there should be differing
accounts of whether he could spend time in the garden, and of whether he had
diarrhoea as a side-effect of medication. Having heard the careful evidence of
Dr Gilchrist, Dr Livingston, Professor McMillan and Mr Taylor in the
witness box I consider it most unlikely that any of them recorded inaccurately
what the pursuer told them. I accept the evidence of Graeme Carling Junior as
to the pursuer's interest in this litigation and his use of the telephone. I
find, accordingly, that all these considerations cause me to approach the
pursuer's evidence with caution.
[19] In support of their contention that the pursuer had consciously
exaggerated his evidence the defenders relied on a surveillance video-recording
and observations made by private investigators on 26 November 2004. The investigators compiled two videos,
nos. 7/24 and 7/25 of process. The first contained recordings made on 4, 9 and
17 August 2004. Nothing of significance was recorded on 4 and 9 August, but
that of 17 August 2004 recorded
parts of the pursuer's journey by car from his home at Newtyle to the Southern
General Hospital in Glasgow for his
examination by Dr Livingston which formed the basis for the report no.
7/18 of process. The investigator who spoke to that recording stated that the
car had stopped four times on the journey. That is consistent with the evidence
of the pursuer, Mrs Carling, who was accompanying him, and Wayne Carling, who
was driving the car.
[20] The defenders relied on the second video (no. 7/25 of process)
and on observations made by investigators on 26 November 2004. This video records in part a journey
by the pursuer to Glasgow on that
date which was observed by the investigators. The background was as follows.
Mrs Carling, after a discussion with Dr Hull, had decided that it might be
helpful to take the pursuer to Spain
for a weekend on the occasion of their wedding anniversary. They would take
with them their granddaughter Chelsea, who was then seven years old. The pursuer agreed. The night before they were due to
leave, however, the pursuer announced that he would not be going. He spent most
of the night drinking. The next morning, it was discovered that Chelsea's
passport had expired. They were due to fly out from Glasgow
Airport in the late afternoon. As a
ruse to trick the pursuer into going to Glasgow, his family represented to him
that he would have to go with Chelsea to the Passport Office in Glasgow to
obtain a new passport for her. It was arranged that Wayne
would drive the pursuer and Chelsea
to Dundee, and Graeme Junior would drive them from Dundee
to the Passport Office. Wayne,
having driven the pursuer and Chelsea to Dundee, would
return to Newtyle and drive Mrs Carling to Glasgow. The pursuer thought that after he had
obtained the passport he would go back home, but the family intended to
persuade him to go on the holiday once he was in Glasgow.
The pursuer agreed to go with Chelsea
to Glasgow. They went to the
Passport Office. While they were waiting for the passport, they walked into the
city. The pursuer obtained some euros from a travel agent's shop, bought Chelsea
some clothes in another shop, and also bought her a burger. They obtained the
passport, Mrs Carling arrived, and the pursuer was persuaded to go to Glasgow
Airport, where all three checked in
their luggage and in due course flew off to Spain.
For the sake of completeness it should be added that the holiday was not a
success. The pursuer spent the time at the airport in the bar, and spent the
holiday drinking.
[21] The investigators who were maintaining surveillance outside the
pursuer's house in Newtyle had no idea that he would be travelling to Glasgow.
One of the investigators, Mr Alexander Campbell, spoke to the video and a
surveillance report (no. 7/29 of process). Mr Campbell was an impressive
witness. He had been a police officer for 30 years and had retired as a
detective inspector in the Scottish Crime Squad. The investigators saw the
pursuer and Chelsea being driven in one car from Newtyle to Dundee,
and in another car from Dundee to Glasgow.
On the road from Perth to Dunblane
the car was driven at high speeds, at some points in excess of 100 mph.
The investigators arranged for another vehicle to follow the car in case they
lost sight of it. Another investigator, Mr Alan d'Amerosio, who also gave
acceptable evidence, therefore awaited its arrival at Cumbernauld and, with the
other investigators' vehicles, followed it to the Passport Office. On the way,
it continued to exceed the various speed limits in force.
[22] At 10.43 am the
pursuer and Chelsea went into the Passport Office, where the pursuer spoke to
an assistant. They were in the office for about 15 minutes. They came out,
spoke to the driver of their car (Graeme Junior), and returned to the office
for about 45 minutes. After they left, they walked towards the city centre. The
pursuer used a mobile phone. He crossed a street with Chelsea,
running part of the way towards a traffic island. They then went into Thomas
Cook's shop in Sauchiehall Street.
The pursuer asked for foreign currency and said he would come back for it. The
pursuer and Chelsea then entered a Burger King restaurant. They were there for
some 40 minutes and then returned to Thomas Cook's, where the pursuer appeared
to collect the foreign currency. They then went into the Buchanan Galleries
shopping centre for 20 minutes. They went into Gap and then into Next, where
they went up to the children's department on the top floor and the pursuer
bought Chelsea some clothes. They
came out, walked around and returned to the Passport Office. They were there
for some 20 to 25 minutes, then left and stood in the street until about 3 pm, when Wayne
arrived by car with Mrs Carling and took them to the Airport. Thus the pursuer
had been in the centre of Glasgow
with Chelsea for over four hours.
At the end of the period he appeared to be walking a little more slowly than he
had done at the beginning. However, Mr
Campbell the investigator, who was a marathon runner and was 54 years old when
he gave evidence, found it difficult to keep up with him. The pursuer walked in
all for about a mile and a half.
[23] At the airport the pursuer removed the luggage from the car,
put it in a trolley and went to the check-in desks with it, carrying a
shoulder-bag. He put the suitcases on the conveyor belt at the check-in desk,
and after checking in, walked to the departure gate with Mrs Carling and
Chelsea.
[24] The video is significant for this reason. It recorded events on
26 November 2004. The
pursuer had been examined by Dr Livingston on 17 August 2004, and by Professor McMillan on 10 September 2004. Each of them had
diagnosed him as suffering from PTSD. Dr Livingston judged his PTSD to be
"between moderately severe and severe" (no. 7/18 of process, page 10, paragraph
4; notes of evidence, page 1058). Professor McMillan's opinion was that as
a result of the accident the pursuer had developed PTSD, alcohol abuse and
perhaps depression of mood (no. 7/19 of process, page 8, paragraph 38. He
added:
"39. There is no
evidence that Mr Carling is exaggerating his difficulties in any purposeful
way, and on balance of probabilities I do not think that he is exaggerating.
However, this possibility cannot be excluded given that the disabling effects
of the accident are much greater than would have been predicted, given his
unusual presentation and given the litigation context."
Dr Livingston and Professor
McMillan were shown the video. Professor McMillan was also shown the
surveillance report. That additional material caused them to change their opinions.
[25] Dr Livingston accepted that it was very hard to judge a
person's mental state from such a video (notes of evidence, page 1138). He
said, however, that the video gave a different picture from that which the
pursuer had presented to him, which had been that the pursuer was avoidant of
his family, of car travel, noise, the telephone, social interaction and
stressful situations. The video showed the pursuer doing quite a number of
things which he had suggested were quite stressful for him. It would be hard to
imagine that 26 November 2004
had been one particularly bright day. The video certainly showed that he had
greater capabilities than he had stated he had in August. Dr Livingston agreed
that the pursuer's activities recorded on the video were all very normal, and
that a theory that there had been a marked degree of recovery was perhaps less
likely than a theory that there had been a marked degree of exaggeration (notes
of evidence, pages 1093-1097).
[26] Professor McMillan's views are summarised in his supplementary
report (no. 7/27 of process):
"This is
somewhat different from what I had expected. He told me he tries to avoid
people as much as possible and seemed to avoid his wife in the house (Paragraph
17 in my report [no. 7/19 of process]). The surveillance report indicates that
he travelled by car from Perth to Dundee
[read 'from Dundee to Perth']
and then to Glasgow Passport Office, and later by car to Glasgow
Airport. Mr Carling told me that he
is terrified of being in a car and in order to attend the appointment with his
wife had to stop the car on several occasions because of his severe anxiety
when he would frequently shout and scream while his wife was driving (see also
Paragraph 30). There is no suggestion of such behaviour on the video or in the
surveillance report.
During the video
there were no signs of Mr Carling seeming anything but relaxed. In fact, he
spent a relatively long day in Glasgow, much of the time walking about the
streets. The disparity between the video/surveillance evidence, and my
interview increases the inconsistencies between his presentation at interview,
the seeming differences between neuropsychological assessments by Dr Gilchrist
and myself (Paragraph 34), the severity of the injuries at the time of the
accident and his apparently normal behaviour on the surveillance video.
The video tape
and surveillance report cast doubt on whether Mr Carling was indeed suffering
from post traumatic stress disorder at the time of my assessment and makes me
think there is an element of purposeful exaggeration in his account of the
persisting effects of the accident."
[27] In evidence Professor McMillan said that what was shown on the
video was inconsistent with what the pursuer had told him of his problems
(notes of evidence, page 854). "It didn't seem to me to be the same person that
he had described in the interview" (page 856).
[28] Dr Hull, on the other hand, did not consider that there was any
inconsistency between what was shown on the video and what the pursuer had
reported to him. He considered that there was "a lack of almost due care
towards the granddaughter" and his immediate thought "was actually child
protection, should he have been allowed to have his granddaughter with him"
(pages 576-577). He appeared to be distracting himself from difficult thoughts.
His intolerance to noise was to sudden unexpected noise (pages 577-579). Dr
Hull's overriding impression was of watching some one with a chronic mental
illness (page 587). A sufferer from PTSD could overcome his avoidance of doing
something if it was absolutely necessary for him to do it (pages 572-573,
583-584).
[29] It is also necessary to take into account, when assessing the
significance of the video and surveillance report, that the medical witnesses
had not previously detected any evidence of exaggeration on the part of the
pursuer. Dr Hull had tested the pursuer for exaggeration and malingering (pages
497-499, 613-615). No such evidence was found by Dr Young (pages 26-27). Nor
did Professor McMillan find such behaviour in his first report, quoted above,
although he was careful not to exclude it as a possibility. Mr Taylor felt
there was no evidence to suggest that the pursuer was exaggerating his symptoms
(page 947). Dr Livingston thought there was nothing to suggest that the pursuer
was not trying when he performed the various tests set for him (page 1111).
[30] In addition, it is necessary to consider whether the pursuer
had any reason to exaggerate in his descriptions of his condition. The only
witness who gave evidence with any bearing on this question was Professor
McMillan, who suggested it was possible that the pursuer might be exaggerating
for financial gain. He was careful to explain, however, that it would not
simply be the case that the pursuer had decided to give up work and obtain
money by pursuing a damages claim. He said, "Well I think it's more complicated
than that. I think Mr Carling has suffered from PTSD and I think that he has
abused alcohol and I think there is an element of elaboration" (page 886).
[31] In my opinion that response by Professor McMillan encapsulates
the true position. I do not think that the pursuer in his reporting of his
symptoms to the medical witnesses or to the Court was motivated by thoughts of
giving up work and obtaining damages instead. There is acceptable evidence from
the pursuer and his sons that he was a man who enjoyed his work. The pursuer
also gave evidence that after the accident he wanted to get back to work, and
there is evidence to the same effect from his general practitioner, Dr Young;
the clinical nurse specialist in CBT, Mr Martin; Dr Gilchrist and Dr Hull. I am
satisfied that he was anxious to return to work, and that he became frustrated
when his condition failed to improve. His frustration led him to take a
despondent view of his state of health, and to express himself from time to
time in terms that were over-emphatic and too extreme to be entirely accurate.
I believe, however, that he was telling the truth as he saw it and I do not
consider that he was trying to deceive the doctors or the court.
[32] I am nevertheless satisfied that there are obvious
discrepancies between what he reported to Dr Livingston and Professor McMillan
and what is recorded on the video and in the surveillance report. I accept the evidence
of Dr Livingston and Professor McMillan as to the existence of inconsistencies,
and I an unable to accept the interpretations to the contrary in the evidence
of Dr Hull. I have declined to follow Dr Hull's views on this point with
reluctance, because in my opinion he was in many respects an admirable witness.
His special interest is in post-traumatic reactions and he spoke from very
extensive experience of PTSD. His evidence was in general lucid, authoritative,
and properly subtle and nuanced. In addition, he had the advantage of speaking
of the pursuer as a patient who had been under his care. I have reached the
conclusion, however, that his interpretation of the video was unduly favourable
to the pursuer, and the views of Dr Livingston and Professor McMillan should be
preferred. Despite the fact that exaggeration had not been suspected by any of
the medical practitioners who had had dealings with the pursuer before the date
of the video, the video in my opinion calls in question the reliability of the
information which he had given them. There was general agreement that the
experts relied on the information provided to them: Dr Gilchrist (page 207), Dr
Hull (pages 613-614) and Dr Livingston (pages 996-997) all spoke to that
effect.
[33] In view of my findings as to the significance of the video,
together with what I have found to be a need for caution in the assessment of
the pursuer's evidence owing to the other discrepancies already discussed, it
is in my opinion prudent to discount the more emphatic and absolute expressions
used by the pursuer in the accounts of his condition which he gave to the
experts and in the witness box.
The pursuer's condition
PTSD
[34] While I have reached that view as to the credibility and
reliability of the pursuer, there remains on the other hand the acceptable
evidence of Mrs Carling and the pursuer's sons Graeme Junior and Wayne relative
to the undisputed facts which I have already set out. Those facts were among
the information which the medical witnesses had before them when they concluded
that the pursuer suffered from PTSD. Dr Hull, who is an expert in
post-traumatic reactions and had treated the pursuer, had no doubt that he
suffered from PTSD, the degree of which he assessed as severe to profound. Mr
Martin, who also treated the pursuer, also had no doubt that he was suffering
from PTSD. Dr Gilchrist was of opinion that PTSD was likely to account for most
of the pursuer's difficulties (no. 6/29 of process, page 6, paragraph 8.8;
notes of evidence, page 181). Dr Livingston's final view of his diagnosis of
PTSD, after he saw the video, is not entirely clear. I accept, however,
Professor McMillan's final position, notwithstanding his interpretation of the
video, that the pursuer nevertheless suffered from PTSD. Having weighed all
these considerations I have concluded that the pursuer does suffer from PTSD.
However, in view of my reservations as to the reliability of some of the more
extreme information given by the pursuer to the medical witnesses, I consider
that it is proved on a balance of probabilities that the degree to which he
suffers it is between moderately severe and severe: it is not proved that it is
severe to profound.
Abuse
of alcohol
[35] A further matter which must be taken into account in assessing the
pursuer's condition is his abuse of alcohol since the accident. The pursuer's counsel submitted that the
pursuer's alcohol consumption and his PTSD were "enmeshed" as part of the whole
psychiatric condition he suffered. The defenders' counsel, on the other hand,
submitted that available treatments for PTSD had not worked because of the
pursuer's obstinate and unreasonable attitude to controlling his drinking. He
therefore should not be treated as a person who, by reason of injury, would be
unlikely to work again. It is accordingly necessary to examine the material
evidence in some detail.
[36] As I have narrated, before the accident the pursuer drank at
weekends, but he did not drink during the week. His post-accident abuse of
alcohol appears to have taken the following course. In January 2003 Mr Martin,
the clinical nurse specialist in CBT, began to treat the pursuer with cognitive
behaviour therapy. The pursuer did his best to co-operate, but he was impatient
and was frustrated that the treatment was not producing rapid results. He did
not accept that he had PTSD (pursuer's evidence, pages 32, 37, 39). Mr Martin
gave convincing evidence that the pursuer was trying too hard and had an
unrealistic expectation of the time it would take for him to regain control of
himself and his situation. He was very self-critical (pages 312, 313). He did
not accept that he was suffering from PTSD and began to drink heavily. The pursuer said that he began to do so about
the end of 2002 and January 2003 (page 31). He was then admitted to Murray
Royal Hospital.
After his discharge from his first stay there, from 28 February to 20 March 2003, he drank more heavily,
and his wife and sons moved out of the house. When he was readmitted on 11 April 2003, it was noted "that he
was essentially carrying out a protracted suicide by drinking, smoking and not
eating" (Dr Hull's report, no 6/3 of process, paragraph 4.10). After he was
discharged on 24 April 2003,
Dr Tait advised him to reduce or discontinue his drinking. He had also been
receiving medication.
[37] The pursuer nevertheless continued to drink. When he saw Dr
Gilchrist in November 2003 he told her that he had been drinking very heavily
but had been drinking less recently, although he had relapsed slightly over the
previous two weeks. He had been drinking one bottle of whisky through the
night. From December 2003 he reduced his drinking to one bottle of wine per
night. He was also smoking 50 cigarettes a day. Dr Hull recorded in the same
report, "His alcohol intake plus cigarette usage combined with his lack of self
care, are described by Mr Carling as an attempt to shorten his life span
without actually committing suicide" (page 5, paragraph 5.00). He was still
drinking a bottle of wine a day when he was examined by Mr Taylor on 21 June 2004 (no. 7/17 of process,
paragraph 4.3). When Dr Livingston examined him on 17 August 2004 he was drinking "around a bottle
of table wine per day plus six beers, that is between 15 and 20 units of
alcohol per day. If he does drink shorts he will drink at least a half bottle
of spirits (around 13 units per day) but on these occasions he does not drink
wine or beer. Mr Carling does most of his drinking late at night and in the
early hours of the morning. He feels that it assists him in getting off to
sleep and helps to blot out memories" (no. 7/18 of process, page 5).
Professor McMillan recorded that on 10
September 2004 the pursuer told him, "He drinks a bottle of wine if
he feels stressed or under pressure and has four to five bottles of wine a
week. He occasionally will drink spirits or beer but this is relatively rare
and he thinks he has 24 to 30 units of alcohol per week. His wife agrees with
this estimate" (no. 7/19 of process, paragraph 18). The pursuer said that from
August to December 2004 was his best period in terms of his reduction of his
drinking (page 124), "but since then it has ramped up again" (page 48).
[38] In a letter of 31 May 2005 Dr Hull wrote, "since he got an
interim payment he has once again begun to drink heavily seeing his family's
financial security as now having been achieved to some degree and he can
retreat into alcohol to numb himself from the fear, hopelessness and tendency
towards rumination over his trauma" (no. 6/30 of process, paragraph 6.01).
Having seen the pursuer on 12
September 2005 Dr Hull recorded that his alcohol intake was
"currently one bottle (30 units) per day." "He believes it helps him sleep but
also believes it disinhibits his aggression and irritability. However, while
understanding the negatives he believes he is 'still here today because of the
medication and the alcohol.' He continues to smoke 60 cigarettes per day. His
maladaptive behaviours are in combination a choice to shorten his life span"
(no. 6/30 of process, paragraph 8.00). Later in his report Dr Hull said, "Mr Carling's
continued use of alcohol is at least in part a form of self-medication. He
continues to use it long after it has failed to decrease the rate or severity
of his intrusive re-experiences. This is not uncommon amongst trauma survivors"
(paragraph 16.01). "His alcohol intake is effectively over the recommended safe
weekly alcohol intake on a daily basis" (paragraph 16.04). "He has made limited
progress when treated adjunctively with medication and psychotherapy and indeed
his condition has deteriorated due to the resurgence of his alcohol misuse
following the interim payment" (paragraph 17.00).
[39] Dr Gilchrist saw the pursuer on 26 August 2005. She reported (no. 6/29 of process):
"2.6 Mr Carling
continues to drink alcohol to excess. He said he is currently drinking about a
bottle of vodka a day and/or sometimes whiskey or beer. He is fully aware that
this is excessive and is likely to harm his health in the long term but does
not feel concern about this. He said he has tried to follow all of the
treatments he has been given since the road accident, but has not seen any
'real improvement'. He strongly believes that without the alcohol he would 'not
be here' (alive). He said he tries to drink enough alcohol to stay in a blurred
condition, which lessens the pain of how he feels. He is drinking every day and
certainly smelt strongly of alcohol at interview."
[40] In the witness box on 8 and 9 November 2005 the pursuer made the comments noted
above. He also said that he was now drinking at least a bottle of spirits per
day (page 49). He gave an account of his current medication and said, "So, I am
still on all these things albeit I continue to consume the alcohol I am
consuming, and I understand that it will have a negative effect on the drugs"
(page 54). He said that the medication he was on was not enough to reduce his
anxiety symptoms, "So alcohol is the only thing that works for me" (page 126).
He was not receiving any therapy. He had been discharged from Dr Hull's care in
April or May 2005. He had been told that until he was able to reduce his
alcohol intake, it would be pretty futile to try (pages 130, 132). He
explained his position in this way. He had been at his best point from August
to December 2004, when his alcohol intake was much reduced. "That best point
was miles away from where I wanted to be, and that was as good as it got and
that was the indication I was given, this is as good as it's going to get for
you, Mr Carling. [ . . . ] So
therefore if that was the best then I decided that alcohol would . . . you know
that alcohol did more than the medication" (page 133). He had carried out every
single instruction, diligently taken every medication that was prescribed, and
attended every session of therapy. If any further treatment or course of action
was available, he was willing to embark on it if he thought it was going to
improve his situation (pages 134-135). Dr Hull had discussed with him
counselling for his alcohol consumption, "and until I have a substitute for the
alcohol that works as well as the alcohol,
then I'm not prepared to stop drinking alcohol". Dr Hull had suggested
to him that if his view happened to change in the future, that was a service
that would be made available to him (page 137).
[41] There were passages in the medical evidence which discussed the
relationship between PTSD and the consumption of alcohol. Mr Martin said that a
patient with PTSD frequently "self-medicates" with alcohol (page 358). Dr
Gilchrist said it was likely that a patient such as the pursuer would
self-medicate with alcohol (page 135). It was something he was driven to do
"because from his perceptional point of view he sees benefits" (page 148). The
alcohol abuse stemmed from trying to deal with the symptoms of PTSD (pages 367-368).
Professor McMillan said that treatment for the PTSD and the alcohol abuse would
be interwoven, because the pursuer was "most likely self-medicating himself
with the alcohol and because of the psychological problems, and so there may
need to be a package" (page 910).
[42] Dr Livingston said it was not uncommon to find that people with
PTSD drank excessively to try to sedate themselves (page 1121). One would
assume that a reasonably intelligent person would realise he or she was
drinking far too much, which was not helping him or her in the long run, and
that he or she needed to do something about it; but he did not get the
impression that the pursuer had carried out "that important piece of
introspection" (page 1123). In theory there was nothing stopping an individual
cutting down or stopping (page 1124).
The success rates in dealing with people with alcohol misuse problems
were pretty poor (page 1125). The pursuer was not physiologically dependent on
alcohol (pages 1125-1126). Drinking alongside the PTSD had an adverse impact
upon the prognosis. But a logical way forward would be for the doctor to offer
to help the patient to deal with the symptoms the patient was trying to treat
with the alcohol (pages 1126-1127). There was a limited prospect of cognitive
therapies working if the pursuer was simply self-medicating his anxiety with
alcohol (page 1074). The consumption of excessive amounts of alcohol got in the
way of therapy, reduced motivation and was an important factor in impeding
progress (page 1076). The pursuer's drinking aggravated the situation by
destabilising his mood and having an adverse impact on temper control (pages
1062-1063).
[43] Dr Hull said that there was a fair degree of evidence that
post-traumatic stress increased a person's risk of drinking excessively (page
471). The pursuer used alcohol both to self-medicate and to self-harm (page
506). His condition improved quite markedly when he had a trial without excess
alcohol and he became aware of the detrimental effects of alcohol (page 532;
no. 6/30 of process, paragraph 7.01). It was unrealistic and simplistic merely
to advise the pursuer to stop drinking. The interaction between PTSD and
alcohol was very complicated. The PTSD had to be treated as the primary
disorder, but that could not be done without paying attention to the alcohol
abuse. Treatment of people for both disorders at the same time was sometimes
successful and sometimes not so successful: it was a very complicated business.
For the pursuer the alcohol and the PTSD were meshed with each other: it was
difficult to see whether the PTSD had caused the alcohol problem or whether the
traumatic event had caused both. The pursuer was psychologically dependent on
alcohol because he believed it made a difference (pages 536-541). Dr Hull had
worked long and hard in looking at the pursuer's alcohol problem and had
encouraged him to move to a position where he was willing to make a change in
his drinking (page 719). He had been able to attempt to control his drinking,
but he could not persist. The reasons why he had resumed his drinking were
multifactorial (pages 715, 720, 723-724).
[44] The defenders argued that if the Court was satisfied that there
had been conscious exaggeration, the situation of uncertainty was further
aggravated by the pursuer choosing to drink very heavily since shortly after
the accident. The evidence disclosed that PTSD was a condition that could be
treated effectively only if the patient was prepared to curtail his drinking.
The pursuer's evidence confirmed that he knew that perfectly well. He was not
physiologically dependent on alcohol. It was his obstinate and unreasonable
attitude to reducing his very heavy alcohol consumption which had caused the
available treatments for PTSD not to work. It would therefore be wrong in
principle to regard him as someone who, by reason of injury, would probably not
work again and could not be successfully treated despite his best efforts and
those of his treating doctors. If the Court was satisfied that the pursuer
continued to suffer from some degree of PTSD, an award of damages should be
discounted to reflect the likelihood that control by him of his drinking would
have enabled him to receive more effective treatment for PTSD with the real
prospect of such treatment resulting in his being able to work for at least
some of the period since the accident.
[45] As I have explained, I do not think that the pursuer's
exaggeration of his symptoms was deliberate or "conscious", but that does not
affect the essence of the defenders' submission. I have some sympathy with the
submission because in the passages of his evidence quoted above the pursuer
gave the impression that his heavy drinking was a matter of choice. Dr Hull
said at one point, "he has chosen, I suppose lifestyle choices, that would
shorten his life span, and that would include his drinking, his smoking" (pages
459-460). It might therefore appear prima facie that in resorting to drink the
pursuer had made a free, deliberate and informed decision which was of such
substantial importance that it negatived a causal connection between the
accident and the gravity of his present condition. I have reached the view,
however, that such an appreciation of the situation would be incorrect. I am
persuaded, primarily by the evidence of Dr Hull, that heavy drinking is a
condition which may reasonably be expected to accompany PTSD. Dr Hull said that
it was very rare to see any patient after trauma having only PTSD: that was the
exception which proved the rule. The co-morbid conditions with PTSD ranged from
depression to other anxiety disorders, substance misuse problems, alcohol
problems and behavioural problems. There was a fair degree of evidence that
post-traumatic stress made people vulnerable to drinking and increased their
risk of drinking excessively. The co-morbidity of PTSD and alcohol misuse or
alcohol dependence varied in studies between 30 per cent and as high as 78 per
cent in some studies, the latter relating to combat veterans in America (pages
471-472).
[46] The other medical witnesses to whose evidence I have referred
above also made it clear that it was not uncommon to find that people with PTSD
drank to excess. Having regard to all
that evidence, and in particular to the evidence of Dr Hull who spoke not
only with authority as an expert in post-traumatic reactions but also with
experience of treating the pursuer, I find that alcohol abuse or alcohol
dependence is not an abnormal accompaniment of PTSD, and that the pursuer in
resorting to heavy drinking should be regarded as still reacting to the
accident and not as being in control of his situation and free to act
otherwise. I have concluded, accordingly, that the pursuer's resorting to
alcohol and his failure to reduce or discontinue his drinking should not count
against him in the assessment of damages.
Brain
injury
[47] The pursuer avers that in addition to suffering PTSD he
sustained long-term damage to the frontal area of the brain. The defenders, on
the other hand, aver that he sustained a minor head injury and that subsequent
investigations by scanning showed no significant structural damage to the brain
caused by the injury.
[48] The medical witnesses expressed differing opinions on this
matter. Dr Gilchrist carried out a number of tests when she examined the
pursuer. They showed that he had problems with attention processing and
executive functioning. She concluded that his presentation was fully compatible
with a head injury which had damaged the frontal areas of his brain by bruising
or shearing of small nerves. Professor Blair's finding that the pursuer had
lost his sense of smell was consistent with such an injury (report, no. 6/31 of
process, paragraph 7.2) Such an injury could not be ruled out by negative scan
results because it would not necessarily appear on a scan (Dr Gilchrist's
report no. 6/1 of process, paragraphs 8.14, 8.18). It was not possible to be
100 per cent certain, but on balance it was her opinion that the pursuer had
suffered minor but persisting damage (notes of evidence, pages 144-145, 180).
Such damage would diminish the pursuer's prospects of recovery (page 176).
[49] Dr Hull did not claim any particular expertise in cognitive
assessment, but from a clinical perspective, having reviewed all the
information and having examined the pursuer's cognitive function, he considered
that the pursuer showed many of the symptoms of frontal lobe syndrome. He
considered that Professor Blair's report supported that view (pages 465-467,
483-485). Such organic damage made the prospect of effective treatment for PTSD
slightly less than it would otherwise have been (page 729).
[50] Dr Tait considered that the pursuer's thinking and behaviour
suggested damage to the frontal lobes of the brain as well as PTSD (pages
393-395, 400).
[51] Mr Taylor's view was that it was no more than a possibility,
and not a probability, that the pursuer had suffered a degree of minor brain
damage. He was not convinced that such damage had caused the pursuer's
psychiatric problems, but he did not exclude the possibility that he might have
suffered microscopic brain damage which in some way might be contributing to
his psychiatric condition (no. 7/17 of process, paragraphs 11.1, 11.3; notes of
evidence, pages 940-945).
[52] Dr Livingston did not consider that there was any major issue
in relation to the pursuer's head injury (page 1041).
[53] Professor McMillan considered that the pursuer had sustained a
very mild traumatic brain injury, and traumatic brain injury was not a
significant issue (no. 7/19 of process, paragraphs 32, 40). There had been no
neurological findings on brain scanning (notes of evidence, page 884).
[54] In my view the opinion of Dr Hull, which is supported by the
evidence of Dr Gilchrist and consistent with Professor Blair's report, is
highly suggestive. Having regard also to Mr Taylor's evidence, it appears to me
that it would be unwise to exclude completely the possibility that the pursuer
sustained a brain injury which resulted in frontal lobe syndrome. In view of
the absence of supporting evidence from the brain scans, however, I have
concluded that I should find that such an injury is not proved on a balance of
probabilities. If I had found it proved, I would have taken account of Dr
Hull's view and found that it made no material difference to the pursuer's
prospects of recovery.
Other
injuries
[55] There was no dispute about the pursuer's other injuries. At the
time of the accident he sustained chest bruising and a minor head injury. After
being taken to Ninewells Hospital and discharged on the same day, he spent six weeks
bedridden at home suffering from chest pains. He also sustained a whiplash
injury which caused him pain in his neck and shoulders. In addition, he had
pain in his lower back and his left knee. The pain in his neck, back and left
knee were persisting when he was examined by Mr Rickhuss in January 2004.
Physiotherapy had not helped. He was very stiff and sore. His knee had given
way on several occasions. Mr Rickhuss suspected that his back, shoulder and
neck problems were unlikely to improve, whatever the treatment, but the knee
might improve with further management. When Mr Rickhuss examined him on 5
August 2005, he was still suffering pain in his back, shoulder and knee. He was
now in a chronic situation, where further intervention was extremely unlikely
to make any difference to his condition (agreed reports, nos. 6/2 and 6/32 of
process). When the pursuer gave evidence on 8 November 2005 he said that his
neck was sore all the time. The pain in his back was manageable: he could walk
a few miles, and he did not try to lift anything too heavy. His knee from time
to time gave way when he put his full weight on it, particularly when he was
going upstairs (notes of evidence, pages 18-20).
[56] The pursuer also lost his sense of smell as a result of the
accident. He is unlikely to recover it. Since the senses of taste and smell are
intimately linked, his appreciation of food and drink is markedly diminished.
He is also unable to smell odours indicating potential dangers such as burning.
His inability to smell pleasant odours results in a general decrease in his
enjoyment of life. (Professor Blair's agreed report, no. 6/31 of process.)
Pre-accident
medical condition
[57] The defenders made various averments about the pursuer's health
in the years before the accident, to the following effect. First, in August
1985 he consulted his then general practitioner in connection with a back
injury which he had sustained, causing lumbar strain. His present back and neck
symptoms were only partly attributable to the accident. Secondly, in or about
February 1993 he sought advice in relation to a complaint of indigestion and
heartburn for which he was taking regular medication. He was advised that he
was smoking and drinking too much, that his weight had increased and that he should
alter his lifestyle. That advice was repeated by his general practitioner in
August 1995. Thirdly, in September 1995, when he was unemployed, he was
described as "very stressed".
[58] These averments as to pre-accident consultations were supported
in evidence by reference to medical records the accuracy of which was not
disputed by the pursuer. There was no evidence that his present back and neck
symptoms were only partly attributable to the accident. The significance of the
other entries is discussed in the following paragraphs.
Prognosis
[59] The pursuer avers, and has in my opinion proved, that his
orthopaedic injuries are unlikely to improve. He also avers that there may be
some limited improvement in his psychiatric condition but he will never fully
recover. His mental powers are likely to be permanently reduced as a result of
the injuries sustained. He will not regain his powers of concentration, and the
mental agility needed to carry out any job. He is unlikely to hold down in the
future a job similar to his pre-accident one.
[60] The defenders aver that the pursuer suffers from moderately
severe to severe PTSD. I have found that to be proved. The defenders go on to
say that in approximately 18 months' time (the record is dated December 2004)
the pursuer is likely to be capable of a return to the employment market. The
consequences of the accident for him have been psychological in nature and
there is potential for him to recover.
[61] In evidence the defenders' position was supported to some extent
by Dr Livingston and Professor McMillan. Dr Livingston, having interviewed
the pursuer on 17 August 2004
and having concluded that he was suffering from moderately severe to severe
PTSD, said (report, no. 7/18 of process, paragraph 10):
"With regard to
the prognosis, I think it is unlikely that Mr Carling will be able to return to
a senior management position for the foreseeable future.
[ . . . ]
Realistically he is likely to require another 18 months or so of treatment
before he would be able to return to the employment market. At that stage I
would anticipate that he would be capable of a very undemanding job which could
be his first venture back into employment. I have advised Mr Carling that he
should not dismiss this approach as he could at that point enter a virtuous
circle recovering his self-esteem in the process of once again becoming a
breadwinner. Much of this depends on whether Mr Carling is able either to limit
his alcohol consumption or preferably to be abstinent from alcohol. This is essential.
If he continues to drink at the present rate [15 to 20 units per day], he
is likely to become alcohol dependent, an outcome which would have a markedly
adverse effect on the prognosis."
In the witness box Dr Livingston
added that the reality in dealing with people with substance misuse problems,
including alcohol, was that it was very, very difficult and the success rates
were poor (page 1125).
[62] When Professor McMillan saw the pursuer on 10 September 2004 he thought that he had the
potential to get back to work, but it would depend on the outcome of the
treatment and on his abstaining from alcohol (pages 848-849).
[63] On the other hand, Dr Gilchrist in her report of 28 August 2005 (no. 6/29 of process)
gave the following prognosis:
"8.14 At present, and without the successful
outcome of intervention, it is my opinion that he is not able to return to his
old type of work or indeed to obtain and hold down any paid employment. His
current difficulties of impaired concentration, impaired cognitive functioning,
marked irritability, noise intolerance, inability to cope with distraction or
interference, heavy drinking, poor timekeeping and social blunting, would also
make attempting to retrain impossible for him. I feel it is understandable that
Mr Carling does not feel he could cope with a simple and repetitive work
situation, given the challenging and demanding line of work he used to have. It
is therefore my opinion that without an improvement in his psychological state,
Mr Carling is unfit for employment."
Dr Gilchrist's evidence was to the
same effect (pages 183-185).
[64] Dr Hull agreed that the pursuer could not cope with a menial
job because that would be detrimental to his self-esteem. In any event his
physical condition would prevent him from doing manual work. An employer would
not give him an interview. Work would involve him in encountering intrusive
phenomena which he tried to avoid (pages 509-512, 556-558; report, no. 6/30 of
process, paragraphs 2.00, 17.01). Dr Hull did not see the pursuer returning to
employment at all: he found it difficult to see how the improvement required
could be attained. All the treatments that were evidence-based had been tried
and had proved unsuccessful, even though he had been given medication above the
normal limits. The pursuer had tried really hard, but despite all that effort
he was really no further forward. In the future, said Dr Hull, there may be new
treatments, and the pursuer would be a very reasonable candidate to try
anything new that there was evidence for. "And secondly, I'm not very good at
giving up and Mr Carling is one of the few patients I've seen that I haven't
been able to help, and I do think if he felt he wanted to give it another shot
I'd be very happy to go with that." (Notes, pages 519-530.)
[65] The defenders argued that on the evidence it could not and
should not be assumed that the pursuer by reason of injury in the form of PTSD
would not return in any capacity to employment. I consider, however, that Dr
Hull's views on this matter are particularly persuasive and authoritative. I
attach weight to his evidence, for the reasons already stated. I accept all
that he has said above. In addition, none of the other witnesses holds out any
hope of employment for the pursuer unless he reduces or discontinues his
consumption of alcohol; and I have found above that for the pursuer to do so
would be a very difficult matter. I accordingly find that there is no prospect
of the pursuer's returning to work unless in the future some new treatment is
tried and is successful. In view of Dr Hull's expertise and persistence,
however, that is a prospect that should not be left entirely out of account in
the assessment of the loss of future earnings.
[66] The defenders also argued that it could not be assumed that the
pursuer would not, but for the accident, have succumbed to disabling anxiety.
The argument ran that there was evidence to the effect that by reason of his
personality, described by Dr Gilchrist as a Type A personality, the
pursuer would be more vulnerable or susceptible than normal to heightened
anxiety and resulting periods of disability if, for any reason, some event
reduced the degree, or his perception of the degree, to which he was in control
of his own destiny (pages 81-82). There was also evidence that one of the
pursuer's older brothers had suffered from a depressive illness. The pursuer
had had an episode of stress in 1995 when changing jobs that had been
sufficiently serious for him to attend his doctor. Dr Young, his present
general practitioner, had said that the pursuer was not a frequent attender:
that might suggest that the 1995 episode was a significant one and an indicator
of his vulnerability. There was also evidence that, from a medical standpoint,
the pursuer led an unhealthy lifestyle and had been advised to reduce his
drinking and to lose weight. Having regard to these factors, the Court should
adopt a conservative approach when arriving at any figure for future loss of
earnings or future disadvantage to earning capacity by reason of the accident.
[67] I do not consider that Dr Gilchrist's evidence can bear the
weight that the defenders sought to place upon it. I do not think that the fact
that one of the pursuer's brothers had a depressive illness is helpful when
assessing what the future might have held for the pursuer. Nor do I consider
that the episodes in 1995, some seven years before the accident, throw any
light on that subject. There is no evidence that the pursuer's health had been
a cause for any significant concern since that time.
[68] I find, accordingly, that the pursuer's prognosis is as I have
stated it above. There is no likelihood of his condition improving unless some
new form of treatment is discovered which produces a positive result.
Damages
[69] The pursuer claims damages for past and future loss of
earnings, solatium, and services provided by his wife.
[70] The following figures are agreed by joint minute. First, if the
pursuer had remained in his pre-accident employment, he would have received in
such employment, from the date of the accident to the date of the commencement
of the proof (8 November 2005), £156,000 net in respect of his combined salary,
pension payments, discretionary bonuses and car and fuel benefits, inclusive of
interest. Secondly, if he had remained
in employment, he would currently be receiving £51,140 net per annum in respect
of his combined salary, pension payments, discretionary bonuses and car and
fuel benefits. Thirdly, the value of the pursuer's claim under section 8 of the
Administration of Justice Act 1982 in respect of past and future care,
inclusive of interest, is £25,000.
[71] It was agreed at the Bar that the pursuer's loss of earnings to
the date of making avizandum (14 March
2007) was £207,087 plus interest of £14,776. It was also agreed that interest should run on
the figure of £207,087 at the rate of four per cent per annum from 14 March 2007 until the date of the
interlocutor awarding damages.
[72] It was further agreed that I should record in this Opinion that
for the purpose of benefit recovery, no damages are awarded in respect of cost
of care or loss of mobility.
[73] As to the pursuer's loss of earnings to date, upon the view I
have taken of the effect of the evidence I cannot support a suggestion made by
the defenders that the pursuer could have returned to work by about March 2006,
after 18 months of treatment. I do not consider that the pursuer should have
returned to work before the date of this Opinion. I shall accordingly award the
agreed figure of £207,087 with interest thereon at the rate of four per cent
per annum from 14 March 2007
until the date of this Opinion, together with the agreed sum of £14,776.
[74] As to future loss of earnings, the pursuer was born on 25 March 1954. He is therefore now 53
years of age. He would have had to retire at the age of 65. I start from Table
9 of the Ogden Tables, which provides multipliers for loss of earnings to a
pension age of 65 for males, and I select a rate of return of 2.5%. The
multiplier for a man of 53 is 10.01. That figure, however, requires to be
adjusted. First, in terms of paragraph 32, the medium set of reductions in
respect of levels of economic activity and employment gives a figure of 0.93
for a male of 50 and a figure of 0.90 for a male of 55: I take as the appropriate
reduction for a male of 53 the figure of 0.912. Next there must be an
adjustment upwards by 0.03 for a "less risky" occupation in terms of paragraph
36, and an adjustment downwards by 0.05 for a person resident in Scotland
in terms of paragraph 39. The resulting figure is 0.892. The multiplier of
10.01 now has to be multiplied by that figure, which gives a multiplier of
8.93.
[75] As I have found above, however, it is necessary to take account
of the prospect, which is not negligible, that some new treatment might be
discovered which could result in the pursuer's being able to return to some
form of employment. In view of that, I shall reduce the multiplier to 8.5. The
figure for future loss of earnings therefore comes to be £51,410 x 8.5, which is
£436,985, or £437,000 in round figures.
[76] As to solatium, the pursuer's counsel contended for a figure of
£75,000, of which £50,000 should be attributed to the past. The defenders did
not accept that the pursuer had established that he was continuing to suffer
from PTSD with little or no prospect of his disorder improving, but on that
hypothesis they argued for a figure of £30,000 to £35,000. The pursuer's
advisers' statement of the valuation of his claim (no. 11 of process) had
stated a figure of £45,000, which was closer to the relevant figures in the
Judicial Studies Board (JSB) Guidelines at page 813 and to the awards made in Cooper v Reed and Atlas Radio Cars (2001), Kemp & Kemp, C2-016 and Mizon v Comcon International Ltd (1999), Kemp & Kemp, C2-003.
Reference was also made to two awards by the Criminal Injuries Compensation
Board (as it then was): Calvert [2000]
CLY 1539 and George [2002] CLY 3517.
[77] As I have indicated, I have accepted that the pursuer continues
to suffer from PTSD to a degree which is between moderately severe and severe,
but I consider that the prospect of his making some improvement in the future
is not negligible. The JSB Guidelines for PTSD give ranges between £36,650 to
£58,500 for "severe" cases and between £13,500 to £33,800 for "moderately
severe" cases. I assume that "severe" cases include cases which would fall
within Dr Hull's description of "profound" which I have held not to apply to
the pursuer. I also take into account the pursuer's other injuries. Having
considered the matter in the light of the JSB Guidelines and the first three
cases cited above, I have reached the conclusion that an appropriate award in
this case would be £40,000, of which one third, or £13,350 in round figures,
should be attributed to the past. Interest will run on the latter sum at four
per cent per annum from 25 September
2002 to date, a period of approximately 4.75 years, and will thus
amount to £2,527. The total award of solatium, inclusive of interest, is
accordingly £42,527.
[78] The award in name of services is agreed at £25,000, as noted
above.
[79] The total award is thus:
Past earnings loss: £207,087
+£14,776
Future earnings loss: £437,000
Solatium: £42,527
Services: £25,000
Total: £726,390
Interest will run on the sum of
£207,087 at four per cent per annum from 14 March 2007 until the date of the interlocutor, and
interest on the total sum will run at eight per cent per annum from that date
until payment.
