Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2007] CSOH 203
A279/06	OPINION OF LORD EMSLIE   in the cause   WILLIAM McELENEY   Pursuer;   against   DR KAMAL OHRI AND OTHERS   Defenders:     ­­­­­­­­­­­­­­­­­________________

 

 

Pursuer: Hanretty, Q.C., McNaughtan; Digby Brown S.S.C.

Defenders: Bowie; Shepherd & Wedderburn

 

21 December 2007

 

Introduction
[1] The pursuer is an electrician in his late thirties who for many years suffered intermittent episodes of back pain and sciatica. His condition gradually worsened, and from about 2002 onwards he would be signed off work on this account for a fortnight or two each year. In late August 2004, however, he experienced an acute development of his back trouble, leading to widespread motor and sensory disturbance below waist level. By about mid-September 2004 he was in extreme pain; power in his legs was significantly compromised; and for the first time bowel, bladder and sexual functions were adversely affected. A massive prolapsed inter-vertebral disc at L4/5 level, causing cauda equina syndrome, was diagnosed and operated on as an emergency on 21 September, but by that time nerve damage from severe compression within the spinal canal was so far advanced that the pursuer has been left with certain neurological deficits which are likely to be permanent. He has been unable to return to his previous work as an electrician, and is currently restricted to miscellaneous errands for his brother on a semi-formal part-time basis.

[2] The defenders in this action are general practitioners in partnership who participate in an enterprise known as the Glasgow Emergency Medical Service ("GEMS"). On 18 September 2004, three days before the pursuer's emergency operation, he was referred to GEMS at Stobhill Hospital and was there seen by one of the defenders in connection with his acute complaints. It is now accepted that at this time the pursuer's cauda equina syndrome was not diagnosed, and that this failure in diagnosis was negligent. Instead of being referred to hospital for immediate specialist assessment and treatment, which it is agreed would have included emergency surgery, the pursuer was sent home on a diagnosis of sciatica and prescribed diazepam.

[3] Following the defenders' concession of negligence, and of consequent liability to make reasonable reparation to the pursuer, the principal live issues between the parties are in the field of causation. In particular, the parties are at odds as to whether, and if so to what extent, the pursuer's continuing deficits would have been avoided or lessened if the defenders had not been negligent, and accordingly if his emergency surgery had taken place three days earlier than it did. Depending on the answer to these questions, there is also a dispute as to how far the pursuer's reduced working capacity and employment potential can be laid at the defenders' door. Additionally, to the extent that causation may be established in the pursuer's favour, the parties are in dispute as to the proper quantification of his claim. I have now heard a proof on these issues over a period of four weeks in June, July and November 2007.

[4] As the proof proceeded, it became evident that there were three principal respects in which the pursuer has since 2004 been left with residual symptoms and disabilities. In the first place, he has continuing problems with bowel sensation and control and, to a lesser degree, with bladder and sexual function. These problems are attributable to compression damage to nerves of the cauda equina during the immediate pre-operative phase in September 2004, and there is now no dispute that, but for the defenders' negligence at that time and the consequent delay in surgery, the pursuer's condition would in these respects have been substantially normal. The main residual issue between the parties here concerns the true severity of such problems and their effect on the pursuer's ability to work. In the second place, the pursuer has continuing hip and buttock pain for which he has to take regular analgesics and which was the subject of an acute flare-up in 2006. This is at least in part associated with the long history of back trouble which kept him intermittently off work prior to September 2004, and which would probably have required surgical intervention in any event. However, the parties are in dispute as to whether the pain in question is merely referred mechanical back pain (as the defenders suggest), or alternatively (as the pursuer maintains) a neurological consequence of the cauda equina syndrome of 2004 and thus something which might have been avoided had his operation taken place three days earlier. In the third place, the pursuer has developed a marked foot-drop on the right side, associated with loss of normal foot and ankle sensation. Clear evidence of this complication did not emerge for several days after the operation on 21 September, and the parties are in dispute as to its originating cause and as to the reasons why the first relevant entry in the hospital notes was delayed for so long. More importantly, the parties are in dispute as to whether an operation three days earlier would have made any difference on this score. The defenders maintain that it would not, there being no evidence that motor power to the right lower leg deteriorated during the critical three-day period. Conversely the pursuer's contention is that all of the nerves and nerve roots at cauda equina level were affected at the same time by the same massive disc prolapse, and that the likelihood of progressive damage across the board during the critical three-day period may thus be inferred.

[5] The principal issues for determination thus involve an appraisal of all aspects of the pursuer's condition at the time of the defenders' negligence on 18 September 2004; all aspects of his condition three days later when his emergency operation was performed; and the progress or otherwise of particular symptoms or disabilities over the intervening period. In broad terms progression or deterioration would tend to favour a causal connection between the delayed surgery and the pursuer's residual complaints, whereas a finding of causation might be rendered difficult or impossible if, over the critical three-day period, any given aspect of the pursuer's condition either remained static or appeared to improve.

 

Evidential considerations
[6] At the proof evidence was led on these issues from a variety of witnesses on both sides, including eminent consultant neurosurgeons who spoke in support of each party's case. For the pursuer, Mr R.A. Johnston was a highly qualified and experienced neurosurgeon based in Glasgow. His special interest and expertise was in spinal neurosurgery, and he had extensive practical familiarity with the treatment of patients with complications of all kinds including cauda equina syndrome. I found him to be a thoughtful and cautious witness who sought to ally his obvious professional knowledge and judgement to a restrained approach in the witness box and a strong streak of practical common sense. For the defenders, Mr Robert Macfarlane was again a highly qualified and experienced neurosurgeon based in Cambridge. He also had a special interest and expertise in spinal neurosurgery, being responsible for many publications in that field, and I was equally impressed, not just with his evident professional and academic qualification to assist the court as an expert witness, but also with the restraint and practicality of his approach. The evidence of each of these eminent consultants was detailed and complex, covering many areas of greater or lesser significance, and in large measure it is on my assessment of that evidence that the disputed issues between the parties must be determined. Mr Johnston perhaps faced the harder task, insofar as he sought to identify contentions which could properly be advanced in the pursuer's favour on each and all of the contested issues of causation. Mr Macfarlane, by contrast, was in a position to make certain concessions and thereafter to concentrate on particular areas where, in his opinion, the pursuer's contentions could not be supported. Significantly, however, neither witness had the advantage of any involvement with the pursuer's treatment in or after 2004, and their evidence was materially restricted to an evaluation and assessment of (i) contemporaneous notes and records from that time, and (ii) various accounts given by the pursuer himself including his evidence in the witness box.

[7] In this context it should be noted that, with the exception of the pursuer's GP who saw him on 21 September 2004, neither side sought to lead evidence from the author of any of the multiple contemporaneous entries in the medical records which were produced in court. Both parties, and indeed their expert witnesses, appeared content that these various records and assessments should simply be taken and judged at face value, and without the benefit of any explanation or clarification which the professionals concerned might have been in a position to provide. Fortunately there is no reason to believe that additional evidence along such lines would have had any material effect on my overall conclusions, but it might perhaps have made it easier to resolve certain apparent inconsistencies between one entry and another.

[8] A more important difficulty here is that questions arise as to the credibility and reliability of the pursuer's own accounts of his condition at different times. When the defenders' negligence was still in dispute prior to the proof, for example, the pursuer is recorded as having said a number of things to Mr Macfarlane in March 2007 which might have been thought favourable to that aspect of his case. In particular, he is recorded as having at that time tended to play up the apparent severity of his condition at the time when the defenders' misdiagnosis occurred. By the date of the proof, however, the defenders' negligence was conceded and the primary focus was now on causation of the pursuer's continuing problems and disabilities. In that context, the pursuer's interests might be thought to lie in playing down the severity of his condition at the beginning of the critical three-day period, and during his evidence in court I was struck by the extent to which he now sought to distance himself from what he was alleged to have told Mr Macfarlane.

[9] By way of illustration, paragraphs 6 and 7 of Mr Macfarlane's report (production 7/1) bear to record the pursuer as having described how he had been bed-bound in the days following 13 September 2004 on account of pain and leg weakness, and that he was "struggling to walk" when he saw the chiropractor on 17 September. When faced with these recorded statements, the pursuer's first response was that he could not recall telling Mr Macfarlane any such thing, and that the reference to pain was in any event wrong following a Voltarol injection. After then appearing to concede that he might have made the statements in question, he progressed to saying that he honestly did not think he had done so, and almost immediately thereafter adopted the firm position that he had said no such thing. He similarly denied telling Mr Macfarlane various things which appear in paragraphs 3, 8, 9, 10 and 22 of the same report. In these respects I formed an unfavourable impression of the pursuer's credibility and reliability at the time, and this view was strengthened when he and his partner, Maria Pryor, were to my mind inclined to exaggerate the true scale of post-operative disabilities and the extent of the personal services which he has continued to require. I was also unimpressed by the ultimate absence of evidence to support the pursuer's averred claim regarding an intended work partnership with his brother in 2004.

[10] No doubt, as counsel for the pursuer forcefully submitted at the close of the proof, there were a number of errors and discrepancies in Mr Macfarlane's written report. In particular, certain assessments of the pursuer's sensory deficits were wrongly transcribed from his handwritten consultation notes; several entries in these notes were omitted from the report; and some of the significant passages in the report did not appear in the notes at all. However, I did not ultimately form an adverse impression of Mr Macfarlane as a witness, and I am certainly not prepared to draw the inference that he invented any of the entries which have cast doubt on the pursuer's credibility and reliability. Mr Macfarlane made no attempt to conceal or deny the errors and discrepancies to which his attention was drawn, nor did he seek to put forward any spurious explanation for difficulties which he acknowledged should not have been present. Instead he explained the circumstances in which the contemporaneous notes were compiled, the impossibility of recording everything which the pursuer had said at the time of his examination, and the way in which dictation of his report on the same day included the addition of such further (un-noted) details as came to mind at that stage. Under sustained cross-examination he was adamant that the pursuer had indeed told him the gist of what was recorded in the report, and in this I am inclined to accept what he said. In general Mr Macfarlane struck me as a witness with an impressive memory for detail, and I am unable to accept that an independent expert in his position could in so many different respects have made up or misrepresented the tenor of a patient's account. To a material extent, moreover, the disputed entries in his report were consistent with contemporaneous hospital and other records dating back to September 2004, and in the whole circumstances the probabilities seem to me to favour the accuracy and reliability of Mr Macfarlane's report over the pursuer's denials and contrary assertions in the witness box. Even if the pursuer were thought to have given Mr Macfarlane an exaggerated or distorted account of his true condition as at the date of the defenders' negligence, I would regard that as equally damaging to the credibility and reliability of his evidence in court.

 

Causation of the pursuer's residual complaints
[11] Against that background I turn first to the causation aspect of the pursuer's claim relative to continuing problems with bowel, bladder and sexual function and sensation. He has clearly been left with some residual deficit in all of these areas which is likely to be permanent. Impaired sensation and function mean that he cannot be sure of distinguishing faeces from flatus in the bowel, and more importantly that normal bowel movements and control are absent. The pursuer requires to use glycerine suppositories around three times a week to help him in this regard, but unfortunately there is a risk of "accidents" thereafter which he finds so distressing that he essentially does not go out on "suppository days". Fortunately urinary and sexual function have both almost returned to normal. However, as regards the former, diminished warning sensations still expose the pursuer to sudden feelings of urgency requiring ready access to a toilet, coupled with a slight tendency to dribble after micturition. As regards the latter, his sexual sensation is different and he has no feeling at all in one testicle.

[12] On the balance of probabilities I am satisfied that all of the pursuer's residual problems in these areas are attributable to the defenders' negligence, in the sense that if emergency surgery had taken place three days earlier they would all have been avoided. By 18 September 2004 the parties agree that the pursuer's cauda equina syndrome was "incomplete" and progressing, and that neurological damage in that area had not yet reached the stage at which recovery would have been unlikely. Cauda equina syndrome is the condition whereby severe compression of nerves and nerve roots within the lower spinal canal at cauda equina level threatens permanent impairment of bowel, bladder and sexual function and sensation, and also of motor power and sensation to the legs. The danger of permanent impairment is so great that emergency surgery is called for in all cases where the syndrome remains "incomplete". By contrast, once it becomes "complete" and probably irreversible, the situation is no longer so urgent and the risks of emergency surgery, perhaps out of hours and performed by a less experienced surgeon, are better avoided. For these purposes "completeness" is conventionally defined by reference to total loss of bladder sensation and control, coupled with overflow incontinence.

[13] While in the present case Mr Johnston and Mr Macfarlane both confirmed the "incomplete" and progressive status of the pursuer's cauda equina syndrome as at 18 September 2004, they were unable to agree whether it had in fact become "complete" by the time of his operation on the evening of 21 September 2004. On the basis of certain records suggesting difficulty in passing urine with episodes of incontinence from 19 September onwards (production 6/1, p.92; production 6/6, pp.11-12; production 6/2, pp.10 and 12), Mr Johnston's view was that the stage of completeness had by then been reached. Conversely Mr Macfarlane's reading of the available records was that the pursuer still retained some executive control of his bladder by that latter date. On balance, I am inclined to prefer and accept Mr Macfarlane's evidence on this issue. In part, this is because the nature and extent of the pursuer's episodes of incontinence are somewhat unclear in the records on which Mr Johnston relied. More importantly, several entries on 21 September confirm that on examination the pursuer's bladder was "not palpably enlarged" (production 6/1, p.92) or "just palpable" (production 6/2, p.10); that his complaint was of "difficulty micturating ..."(production 6/2, p.12) and of a feeling that "when passing urine ... stream is weak" (production 6/6, p.11); and by 9.30pm (production 6/2, p.13) that notwithstanding such difficulties the pursuer had "just passed urine" and had "no palpable bladder". At the same stage, moreover, the pursuer's anal squeeze was still intact (production 6/2, p.11), and motor power to the legs remained substantial. The decision to undertake emergency surgery out of hours on that date is in my view a further pointer towards the pursuer's cauda equina syndrome having then been "incomplete" rather than "complete", as is the significant degree of recovery which has subsequently been achieved.

[14] That said, however, it does not seem to me that the issue of "completeness" or "incompleteness" as at 21 September is of critical importance for present purposes. What really matters is that, on my assessment of the evidence as a whole, the neurological supply to the pursuer's bowel, bladder and sexual organs suffered some degree of progressive damage on and after 18 September, with the result that the pursuer's residual deficits in these areas can properly be attributed to the defenders' negligent misdiagnosis and consequent three-day delay in surgical intervention. I do not understand the defenders to dispute this conclusion although, as discussed below, they do challenge the true extent and consequences of the bowel problems of which the pursuer complains.

[15] As regards causation of the pursuer's foot-drop on the right side, involving significant impairment of motor power and sensation to the ankle and foot, the parties' respective approaches were strikingly at variance with each other. For the pursuer Mr Johnston took the view that, in line with other cauda equina features, the right-sided foot-drop and altered sensation were also attributable to the defenders' negligence and consequent delay in operative intervention. The precise basis on which he reached this view was not altogether clear from his evidence, but at its highest I took his position to be that all of the relevant nerves and nerve roots were at the same general level of the spinal canal; that the massive prolapse which occurred invaded some 70-80% of the available space, causing "phenomenal pressure"; and that all nerves and nerve roots in that area would probably have been affected in a similar way.

[16] For the defenders, however, Mr Macfarlane's position was that this could not be so, and that Mr Johnston's approach was contradicted by the available records and by the extent of the pursuer's neurological recovery in various areas including in particular his lower limbs. According to Mr Macfarlane the records showed, not merely that motor power and sensation to the pursuer's legs did not deteriorate during the critical three-day period, but that if anything they actually improved. On that basis alone, causation of these aspects of the pursuer's continuing problems had not been established. Significantly, in his view, the nerve roots subserving the lower limbs were located laterally within the spinal canal whereas, relatively speaking, the other cauda equina nerves were central. The focus and direction of a compressive disc prolapse could vary with time, and in this case the available records demonstrated that such variation had indeed occurred. The pursuer's sciatica in September 2004 began on the left side only, where he had experienced it over many years. By mid-September neurological problems affecting his legs were bilateral, but by 17 or 18 September the prolapse had shifted centrally so that from then on it was the other cauda equina nerves which suffered the main compression damage. This approach was consistent with the pursuer's severe leg pain having lessened or abated at or about that time, even though significant weakness persisted, and also with the fact that both power and sensation in the left leg had in the end been completely restored. Admittedly residual deficits on the right side remained, but the fact that these were far from complete again tended to negate Mr Johnston's theory.

[17] By way of further support for his opinion, Mr Macfarlane advanced two arguments which became the subject of particular contention. First, he maintained that the pursuer's pre-operative MRI scans appeared to show that a fragment had broken free from the centrally prolapsed disc. This, he said, was a mechanism capable of relieving compression from the prolapse, and might help to explain how pressure on the lateral nerve roots subserving the legs had diminished along with the associated pain. For the validity of his theory of diminished pressure on lateral nerve roots it did not ultimately matter whether any "free fragment" was present or not, but in Mr Macfarlane's opinion such fragmentation could be seen on the scans. These propositions were strenuously disputed by Mr Johnston, and senior counsel for the defenders further objected to the whole line of evidence on the ground that no fair notice of it had been given on Record. I allowed the evidence to be led under reservation of all questions of competency and relevancy, and at the conclusion of the proof senior counsel invited me to sustain his objection and hold the evidence inadmissible.

[18] Second, Mr Macfarlane expressed the view that the continuing neurological deficits in the pursuer's right lower limb were, at least in part, liable to have resulted from damage caused during the operation itself. Removal of a massive centrally-prolapsed disc was not a straightforward matter. In order to access the prolapse for removal, it was necessary to retract the theca containing relevant nerves and nerve roots to some extent, and such retraction was itself sometimes productive of damage. Similarly, damage might be caused during removal of substantial disc fragments, and these potential causes of damage might represent a risk of up to 20 per cent in specialist operations of this kind. Admittedly the operation here had been carried out by an experienced neurosurgeon whose operation note bore to record "minimal retraction" of the theca, but there was still a real risk of damage occurring in either of the ways described.

[19] Once again this argument was challenged by Mr Johnston, who maintained that the risk of operation damage during discectomy was as low as 0.5-2 per cent and that there was in any event no evidence of operation damage in this case. Had any such operation damage occurred, its effects would at once have been "blindingly obvious", and a striking feature of the hospital records was that for a whole week after the operation no doctor, nurse or physiotherapist had apparently noticed or recorded any such development. The absence of relevant contemporaneous entries in these records was thus fatal to Mr Macfarlane's theory. A more plausible explanation, in Mr Johnston's opinion, was that pre-operatively the nerves had suffered significant damage; that after surgery they "teetered" on the brink of recovery or failure for a few days, consistent with the absence of adverse comment in the hospital notes; but that in the end recovery could not be sustained and marked deficits in the motor power and sensation of the right lower limb were identified on 28 September. This theory did not, however, assist in pinpointing the date at which the relevant nerve root damage must have occurred.

[20] In my opinion the pursuer has failed to establish that his right-sided foot-drop and diminished sensation in that area were caused by the defenders' negligence and consequent delay in surgery. The principal ground on which I have reached this conclusion is that there is ultimately no convincing evidence that motor power or sensation in the pursuer's right lower leg deteriorated during the critical three-day period between 18 and 21 September. Indeed, if the neurological assessment carried out by the operating surgeon Mr Walsh at 9.00pm on 21 September is taken at face value (and neither party suggested that I should do otherwise), motor power in the pursuer's legs, including the right ankle, had apparently improved by comparison to the situation which pertained three days earlier. According to contemporaneous records, and in line with what the pursuer himself reportedly told both Mr Johnston and Mr Macfarlane, significant leg weakness was already evident in the period leading up to 18 September. The chiropractor's note of 17 September (production 6/7, p.4) is to the effect that at that date the presenting complaint was of "... numbness, weakness and pain in both legs", especially on the right side, and that this had become much worse and progressive recently. By the time the pursuer saw the defenders' doctor on 18 September he was recorded (production 6/1 p.45) as walking with a crutch. At page 7 of Mr Johnston's first report (production  6/11), a factual statement from the pursuer himself is quoted to the effect that "... On 18.9.04 ... he was numb from the waist down and could not stand up without support due to weakness in his legs."

[21] Furthermore, according to paragraphs 6, 7, 8, 10 and 11 of Mr Macfarlane's report (production 7/1), the pursuer's account to him in early March 2007 was that from 13 September onwards he remained bed-bound except for toileting on account of pain and leg weakness; that by the time he saw the chiropractor on 17 September he was struggling to walk; that by 18 September his legs felt a little weaker, to the extent that he was unable to stand for micturition without a borrowed walking stick; and that from then on his condition remained substantially unchanged with his legs barely able to support him. Against the background of these various records, it came as no surprise when the pursuer in evidence described how on 18 September he had fallen in the street when his right leg suddenly gave way; how he had told the defenders' doctor that his legs were giving way beneath him; and how on returning home that day his legs could not hold him up at all. He went on to agree that his pleadings at page 6C/E were fair in stating that at this time he "... struggled to stand without support."

[22] Since the pursuer's cauda equina syndrome was not diagnosed by the defenders on 18 September, and he was essentially sent home for the weekend, there are no contemporaneous records of the pursuer's condition until 21 September when he was seen by his own GP and immediately referred to hospital. Comparing the situation with when he last saw the pursuer on 13 September, the GP Dr Byford (production 6/1 p.92) records how "As the week progressed", the pursuer developed numbness, pain and increasingly weakness in both legs. Even with elbow crutches he was struggling to walk, but Dr Byford's note does not seek to quantify the weakness or to chart its onset or progression by reference to any particular date. Once the pursuer was transferred to the Southern General Hospital, Glasgow, on the evening of 21 September, two detailed neurological assessments of the his condition were carried out within half an hour of each other. At 9.00pm the experienced neurosurgical registrar Mr Walsh recorded the pursuer's leg motor power on the left side as normal (Grade 5) at all levels, and on the right side a very similar picture with only slight reduction (to Grade 4 +) referable to plantar flexion and eversion of the ankle. The neurological assessment carried out by a senior house officer at 9.30pm produced comparable results, except that right-sided ankle dorsiflexion and plantar flexion were recorded as 3/5 and 4/5 respectively. These findings differed slightly from those made by a senior house officer at Glasgow's Western Infirmary prior to the pursuer's transfer, whereby "power" was assessed bilaterally at 4/5, and at 3/5 below the knees. However, as all of the expert witnesses agreed, neurological assessments of this kind involved an element of subjective judgement on the part of the practitioner concerned, and could also be affected by the degree of voluntary co-operation offered by the patient. Underestimation of power was thus more likely than overestimation.

[23] In my judgment it is not possible, standing the neurological assessments of 21 September, and in particular the assessment carried out by Mr Walsh as an experienced neurosurgical registrar, to hold it proved that any material deterioration of motor power to the pursuer's right lower limb occurred during the preceding three-day period. Indeed, judging by the degree of leg weakness exhibited and described by the pursuer on and before 18 September, the subsequent assessments would seem to reflect some improvement in this aspect of his condition. This was the conclusion reached by Mr Macfarlane in his evidence, and in cross-examination Mr Johnston initially accepted its soundness before retreating to the position that "apples and oranges" could not reliably be compared. In the end it was only the pursuer himself who positively maintained that his leg weakness did deteriorate between 18 and 21 September. However, having formed an adverse impression of his credibility and reliability in general, I am not prepared to accept that unsupported assertion in the face of contemporaneous (and more recent) records and reports which point in the opposite direction. There is thus no basis for a conclusion that, as regards motor power to the right lower limb, an operation three days earlier would have made any material difference, and it follows that causation of the pursuer's residual deficits in that area cannot now be laid at the defenders' door.

[24] In the foregoing circumstances it becomes unnecessary for me to decide whether the relevant nerve roots sustained additional damage during the operation itself, or why no marked deficit in that area was thereafter identified until 28 September. Mr Macfarlane's theory of operative damage certainly represents one plausible explanation for the apparently surprising difference between the neurological assessments of 21 and 28 September, and in his evidence Mr Johnston very fairly agreed that this was so. On the other hand, the operation note (production 6/2, p.19) records a "... minimum of thecal retraction", without apparent recognition of any problem, and in my view there is force in Mr Johnston's contention that the effects of any significant operative damage ought to have been obvious as soon as the pursuer began to mobilise. Unfortunately the medical, nursing and physiotherapy records in this period are relatively brief and general in nature and, while they do not bear to identify any immediate post-operative deficit, I do not think that they clearly exclude the continuing weakness of which the pursuer himself complained, and which was at least consistent with his reliance on a zimmer or other support throughout the period to 28 September. Maybe the position would have been clearer if a full neurological assessment of the pursuer's lower limb power had been undertaken during that week, but it is now a matter of speculation what any such assessment would have revealed.

[25] With regard to Mr Johnston's theory of nerves "teetering" on the brink of recovery or failure, I accept that this might also explain the apparent deterioration in the pursuer's recorded condition on and after 28 September. However, as previously indicated, the early post-operative records are not in my view clear enough to enable accurate and reliable comparisons to be made in this area, and I find it difficult to reconcile Mr Johnston's theory with the principal neurological assessment of 21 September which suggested that at that point, shortly before the operation, motor power to the pursuer's right lower limb was not critically compromised. On these grounds I would, if necessary, have been inclined to regard Mr Macfarlane's theory of operative damage as the more plausible of the two.

[26] While on the subject of Mr Johnston's approach to this case, I should add that I am ultimately unimpressed with his apparent contention that, because the nerve roots subserving the legs were in the same general area as the other nerves of the cauda equina, they were all liable to have suffered comparable progressive damage during the critical three-day period between 18 and 21 September. No doubt all of these nerves and nerve roots are located in close proximity, and are thus collectively at risk of being compressed by a major disc prolapse at that level, but on the whole evidence I am not persuaded that identical damage to all such structures must occur simultaneously in all cases. On the contrary, in my view, movement of a developing prolapse from time to time may reasonably be taken to produce localised differences in compressive force and direction. The pursuer's prolapse, after all, initially affected the nerve roots on the left side only; it then began to impinge upon the nerve roots on the right side as well; and eventually it developed centrally to such an extent as to put severe pressure on the nerves responsible for bowel, bladder and sexual function and sensation. As Mr Macfarlane explained, that sequence was entirely consistent with compression of the lateral nerve roots being relieved to some degree as the prolapse shifted centrally, and this would potentially explain the apparent cessation of the pursuer's severe leg pain on 17 or 18 September. Another important reason why I find Mr Johnston's approach hard to accept is that it ultimately provides no explanation for the complete recovery of the pursuer's motor power and sensation in the left leg, or for the differential, partial recovery which he has achieved on the right side. It is also harder to accept that approach where, over the critical period, the pursuer's cauda equina syndrome did not in my judgment progress to the stage of "completeness".

[27] At the conclusion of the proof senior counsel for the pursuer sought to make something of the defenders' apparent concession of causation (in their schedule of damages) with regard to "... slightly worse sensation in leg and buttock". In my opinion, however, given the agreed special susceptibility of sensory nerve fibres to compression damage, and the different levels of nerve distribution involved, the defenders' apparent concession is of no assistance to the pursuer on the critical issue regarding causation of the motor power deficit in his right ankle. On the evidence before me, vulnerable sensory fibres might suffer localised damage where more robust motor nerves would not.

[28] Turning now to the pursuer's continuing complaints of disabling pain in his hip and buttock, I am again unable to hold it proved that this was to any extent caused by the defenders' negligence and consequent three-day delay in surgery. It may be that hip and buttock pain do not figure in the pursuer's GP records prior to September 2004, but that does not prove that they resulted from the negligence complained of. On the contrary Mr Reece, an orthopaedic surgeon with a particular interest in spinal complaints, was inclined to attribute these developments to the pursuer's cauda equina syndrome. According to him the prognosis for any patient was worse in the aftermath of cauda equina syndrome, and he believed that in this case the pain was neuropathic. However, when asked in the witness box for the first time whether the three day delay in surgery would in his view have made any difference, his response was in the negative. Mr Johnston and Mr Macfarlane were of course at odds as to precisely how far the consequences of the defenders' admitted negligence extended, but in this area I understood them to agree (i) that the hip and buttock pain was not neuropathic but rather mechanical pain referred from the pursuer's back, and (ii) - confirming the view expressed by Mr Reece - that it would have been no different if the pursuer's operation had taken place three days earlier. On the strength of that evidence, I can find no basis for attributing the pursuer's continuing hip and buttock pain to the defenders' negligence, and in that context it does not seem to me to matter greatly whether the pain in these areas falls to be treated as a development of the pursuer's long-standing prior back trouble, or alternatively as a consequence of the cauda equina syndrome which supervened in September 2004.

[29] Before leaving this primary chapter of causation, I must deal with the pursuer's outstanding objections to the admissibility of certain lines of evidence which were developed by the defenders during the course of the proof. These disputed lines of evidence were (i) the "free fragment" theory by which Mr Macfarlane sought to support his suggested relief of pressure on the nerve roots subserving the pursuer's legs on 17 or 18 September; and (ii) a "cell body" theory which Mr Macfarlane advanced in support of his conclusion that the pursuer's sudden relief from pain on 18 September was more likely due to decompression of relevant nerves or nerve roots rather than (as Mr Johnston maintained) to increased compression causing even greater damage. In the end the pursuer's objections were quite limited in these respects, since (as senior counsel acknowledged) Mr Macfarlane and the defenders were well entitled to search for general explanations as to how and why the pursuer's pain might have been relieved, and also as to why Mr Johnston's theory of increased compression should not be accepted. Senior counsel also very fairly accepted that since Mr Johnston had been well able to deal with the disputed lines of evidence as they arose, it would be difficult to identify any actual prejudice to the pursuer in this connection. Given the limited nature of these objections, and the fact that they essentially concerned expert reasoning rather than evidence of primary fact, I have reached the conclusion that both must now be repelled. None of Mr Johnston's reasoning in this area was the subject of specific averment on Record, and I do not see any convincing reason why Mr Macfarlane's equivalent thought-processes should have had to be averred either. In my opinion it was open to both expert witnesses, in pursuance of their duty to assist the court, to advance whatever reasoning they saw fit on the disputed issues which arose. It would, I think, be a very strange situation if Mr Johnston had the opportunity to explain why he was right on certain matters while the same facility was denied to Mr Macfarlane on technical grounds.

[30] I should add that I have considered whether disallowance of the disputed lines of evidence would have altered my own opinion and conclusions in any way, and can confidently say that it would not. As regards the supposed "free fragment", Mr Macfarlane ultimately did not regard it as critical to his theory of differential compression, and furthermore the radiologist's report on the MRI scans appears to confirm (a) that any fragment was not clearly detached from the main body of the disc, and (b) that its existence was seen as a cause of compression rather than decompression. As regards the "cell body" theory, that simply concerned the respective locations from which regeneration of damaged motor and sensory nerve fibres could occur. It was advanced on the assumption that Mr Johnston's theory of increased compression involved nerve death rather than merely damage, and was intended to show that such a theory could not be correct. In my opinion, however, Mr Johnston's theory did not go to that assumed extreme, with the result that the "cell body" point became academic. It was in any event a matter of agreement between the parties that sensory nerve fibres were more delicate, more susceptible to damage, and less capable of regeneration than motor fibres, and in that context also I would regard the precise location from which regeneration might occur as of being passing interest only.

[31] More importantly, it seems to me that Mr Johnston's theory of increased compression damage relieving pain is difficult, if not impossible, to reconcile with (a) the pursuer's condition as recorded from time to time during the pre-operative period, and (b) the significant extent of his recovery thereafter. I would therefore have rejected it, and preferred Mr Macfarlane's theory of diminished compression, even if the "cell body" argument had not been advanced. Even if that were not so, and I had felt able to accept Mr Johnston's approach, it would in my view merely have served to underline the severity of the damage to the nerve roots supplying power and sensation to the pursuer's lower limbs on or before the date at which the defenders' negligence occurred. It is perhaps on this account that much of Mr Johnston's written advice is directed to the interesting (but for present purposes irrelevant) question whether the pursuer would have made a fuller recovery had his operation taken place, not on 18 September, but two or three days before that. I also note his conclusion (production 6/11, p.13; production 6/12, p.7) that an operation on 18 September would probably not have afforded complete restoration of motor power to the pursuer's right lower limb.

[32] For all of these reasons, I conclude that the pursuer has achieved only partial success on the primary disputed issues of causation. In his favour I accept that his residual problems with bowel, bladder and sexual function and sensation are attributable to the defenders' negligence and consequent three-day delay in surgery. In my opinion the same applies to the slightly diminished sensation in the right buttock and perineal area which the defenders appear to concede in their schedule of damages. As against that, the pursuer has in my judgment failed to establish a causal link between the defenders' negligence and either (i) his chronic continuing hip and buttock pain on the right side, or (ii) the motor weakness and reduced sensation in his right ankle and foot.

 

Damages

[33] Having reached the foregoing conclusions on causation, I am unable to accept that any claim for past or future wage loss is now open to the pursuer. Even if it were to be assumed in his favour that residual bowel problems had some bearing on his continuing unfitness to resume full-time work as an electrician, it is clear that the principal disabling factors in that regard are (i) chronic right-sided hip and buttock pain, and (ii) motor weakness and reduced sensation in the right ankle and foot. In my judgment these problems are not attributable to the defenders' negligence, and accordingly the pursuer would have been disabled from full-time work as an electrician even if the defenders' negligence had not occurred. Indeed Mr Macfarlane's view was that, irrespective of the events of September 2004, the pursuer would have required surgery for his worsening back trouble, and that this would equally have rendered him unfit for full-time work as an electrician. By reference to the decision of the House of Lords in Jobling v Associated Dairies Ltd 1982 AC 794, these consideration are by themselves sufficient to exclude the major wage loss element of the pursuer's claim. Over and above that, I am satisfied that the pursuer's current inability or unwillingness to undertake more in the way of part-time or sedentary work must also be attributed to the hip, buttock and ankle problems for which the defenders are not responsible. The pursuer and his partner, Maria Pryor, made this clear in the course of their evidence at the proof, and in this regard I have no reason to think they were mistaken or that any other approach could plausibly be taken.

[34] In any event, for the reasons discussed below, I am not convinced that the pursuer's continuing bowel problems are sufficiently serious in themselves to prevent him from undertaking further work (with or without retraining) if he chose. In the witness box the pursuer made it pretty clear that he had no real motivation in that direction, expressing the view that he was currently quite content to soldier on as he was; that it suited him to work for a sympathetic employer on a restricted basis; that this enabled him to avoid undue pain and stress; and that there had to be "... life beyond work". Individually and in combination, it seems to me that these various factors preclude any possibility of an award for wage loss being made in this case. Accordingly the pursuer's claim of damages is in my view restricted to (i) solatium, past and future; (ii) past and future services under section 8 of the Administration of Justice Act 1982; (iii) a modest award for potentially enhanced disadvantage on the labour market due to continuing bowel problems; and (iv) appropriate interest on these heads. In these circumstances no issue as to recoverable benefits would appear to arise.

[35] For the pursuer it was argued that his motivation to work was clear and unchallengeable, since he had essentially "worked through" worsening back trouble and sciatica for many years prior to 2004. In broad terms the proposition was that, but for the effects of the defenders' negligence, he would now essentially be back to his pre-2004 position, and accordingly capable of working through back and leg trouble as before. In my opinion, however, these contentions cannot be upheld. On the evidence, the pursuer's hip and buttock pain is materially worse, and consistently more disabling, than anything he experienced prior to September 2004. On a daily basis, it affects his ability to perform even light, part-time work, and necessitates heat relief and rest each evening on his return home. Moreover, as it seems to me, the residual problems are different in kind from what the pursuer experienced before. Not only do they now affect the buttock and hip, but they are also right-sided, and in addition there is the weakness and loss of sensation affecting the right ankle and foot. Prior to 2004, the pursuer's back trouble and sciatica were left-sided and intermittent. For these reasons, the pursuer has in my view clearly not simply returned to the same general state as he was in before his cauda equina syndrome developed in September 2004. In any event, as discussed above, I am unable to regard these main residual problems as attributable to the defenders' negligence.

[36] For the purposes of solatium, however, it is in my view important not to underestimate the severity of the pursuer's continuing problems for which the defenders must bear responsibility. As a relatively young man, he has been left with neurological complications affecting bowel, bladder and sexual function and sensation, coupled with a degree of numbness in his buttocks and perineal area. These problems appear to be permanent and irreversible, and on the evidence I consider that they have, and will continue to have, a marked detrimental effect on his quality and enjoyment of life. There was no direct evidence of any likelihood of deterioration with age, but at the same time that possibility was not excluded either. In the witness box, the pursuer became visibly upset when describing how these problems affected him in the post-operative phase, when they were rather more acute than they are now, but even today he is plainly distressed and disabled by the continuing lack of proper bowel and urinary control. The urinary difficulty is clearly the lesser of the two, but even there the pursuer complains of an ever-present risk of urgency, requiring ready access to a toilet, and also of an occasional tendency to dribble after micturition. Bowel movements can only be achieved by means of suppositories on a thrice-weekly basis, sensation and voluntary control being largely absent, but the end result there is far from perfect. According to the pursuer and his partner there have been "accidents" following the use of suppositories, and this seems to have affected his confidence to such a degree that he is reluctant to leave the house on "suppository days". The risk of "accidents" and unintended discharge is apparently much greater if he should ever have diarrhoea. It may be that the frequency of such problems was, in evidence, exaggerated by the pursuer and Miss Pryor to some degree, but even allowing for that I do not doubt the serious nature of these residual deficits and can well understand how they have adversely affected the pursuer's confidence, self-esteem and enjoyment of life.

[37] Fortunately sexual function has more or less returned to normal after a distressing period of impotence. However, the pursuer is still left with some alteration of sexual sensation and a complete loss of feeling in one testicle. In addition, he has a degree of numbness which extends fairly widely across his buttocks and perineal area. On the evidence I do not consider that these further deficits, although relatively less severe, can be dismissed as negligible and left out of account. In combination, as it seems to me, all of the pursuer's residual deficits flowing from the defenders' negligence must be regarded as having a marked detrimental effect on his quality and enjoyment of life.

[38] In these circumstances I consider that a fairly substantial award of solatium is necessary to compensate the pursuer for the consequences of the defenders' negligence. His residual symptoms and disabilities are to my mind all the more serious where, as here, they afflict a man in his thirties who is significantly disabled in other ways for which the defenders carry no responsibility. He will have to live with these conditions for the rest of his life, and they are clearly a source of continuing distress even though the acute post-operative phase, where counselling was necessary, now lies at some distance in the past. In the whole circumstances, having considered the Judicial Studies Board Guidelines, together with the annotated cases on injuries affecting bowel, bladder and sexual function in Kemp & Kemp, The Quantum of Damages, it seems to me that justice would be done by an overall award of £40,000 under this head. As suggested by both parties, I shall attribute one-half of that award to the past, bearing in mind that the acute post-operative phase was over within 6-9 months and that the pursuer's condition has materially improved since then. On a standard calculation, interest on past solatium from 18 September 2004 to date brings out a further £2,600.

[39] Turning to services, the difficulty for the pursuer is that the vast majority of the services provided by his partner Maria Pryor relate to problems which cannot in my opinion be attributed to the defenders' negligence. I do not doubt that the bowel, bladder, sexual and other deficits for which the defenders are responsible have also generated a need for services, especially during the acute post-operative phase in 2004 and 2005. However, I do not think that the evidence in this case enables me to separate out the "compensatable" services in sufficient detail to justify any award on a multiplier/multiplicand basis, especially where the pursuer and his partner seemed to me to exaggerate the extent of necessary services to some degree. In broad terms, however, I am satisfied that the "compensatable" services in the past may be regarded as substantial, and that a lifetime of future services at a much lower level is also in prospect. As in the case of solatium, I regard the pursuer's need for these personal services as all the greater where he is already burdened with other conditions and disabilities and is far from being a fit man. Balancing all these factors as best I can, a fair lump sum award in this case would in my view be £9,000, of which £4,500 may be attributed to the past. Again on a standard calculation, interest on that latter sum to date produces a further £585.

[40] Finally, it seems to me that an award of damages here would not be complete without some allowance being made for the effect of the pursuer's bowel, bladder, sexual and other problems in enhancing the disadvantage which he is liable to suffer on the labour market in the future. For the reasons previously set out I do not consider that an award for past or future wage loss can properly be made, but it nevertheless seems to me that the deficits flowing from the defenders' negligence must inevitably contribute to any future employment insecurity. If for example the current semi-formal part-time placement with his brother were to come to an end, the pursuer's continuing bowel problems in particular might well have some bearing on his ability to obtain alternative employment. Given the severity of the other disabling conditions for which the defenders are not responsible the risk here may not be significant, but I do not think that it can be classed as negligible or non-existent. In these circumstances, I propose to add a further lump sum of £1,000 to the pursuer's overall award.

[41] In the result, I assess total damages in this case at the sum of £53,185 inclusive of interest to date. Interest on the whole award will run at 8 per cent per annum from the date of decree until payment.

 

Disposal
[42] For all the foregoing reasons I shall sustain the pursuer's first plea-in-law, repel the first three pleas-in-law for the defenders, and award damages on the basis stated above.