Nolan v First Glasgow Ltd [2008] ScotCS CSOH

"Clinical examination...showed her to have a very marked paravertebral muscle spasm with reduced movement of the neck. She was tender over the mid Cervical Spine"

She was provided with a soft cervical collar and non steroidal anti-inflammatory tablets (Diclofenac). She was reviewed on 6 May, when no improvement was noted and she still had "considerable reduction of movement with tenderness and muscular spasm". It is of some significance that the GP reported, as the pursuer confirmed, that she had no history of any neck or other musculo-skeletal problems in the past.

[7] During these initial stages, the pursuer said that she had been apprehensive of making her condition worse by moving her neck. The pain was as severe as she had ever experienced before. She was restricted in what clothes she could put on; dressing with minimal movement. She had seen a physiotherapist at Stobhill Hospital for five weeks (6/3 p 32) and had received ultra sound treatment. But the physiotherapy had had very limited impact. By August, there had been "some improvement" but she had continued to have "quite a lot of pain" over her right shoulder.

[8] The pursuer's GP had been prompted to prescribe Amitryptline (p 23) in addition to her analgesia. Amitryptline is used primarily as an anti-depressant, although also commonly for the relief of pain. Having read the customary, no doubt alarming, array of side effects mentioned in the accompanying leaflet, the pursuer elected not to take this drug. Her physiotherapist had told her that it worked in a similar way to alcohol! At this time, the GP had also referred the pursuer to the Chronic Pain Service at Stobhill, but it was only in January 2006 that she received an appointment. Meantime, in October, she had been noted by her GP as still not improving much and having a painful and stiff neck (p 23).

[9] By the time of her visit to Stobhill, the pursuer had undergone more ("a little") improvement and had reported this (pp 16, 20). The clinician noted that she had tried a variety of drugs in order to assist, again with limited success. She had stopped paracetamol but was taking co-codamol. The pursuer maintained that she had experienced sensations of nausea and dizziness. Her sleep was disturbed. Following upon her appointment, the pursuer had tried a TENS (transcutaneous electrical nerve stimulator) machine, but this had given her pains in her leg, so she stopped using it. It had not helped her shoulder.

[10] The records of the Chronic Pain Service (6/2) show the pursuer reporting neck, right sided shoulder and hand pain, with pins and needles in her left hand (p 10). She completed a form (p 11) in which she reported her pain as occurring "constantly" and being capable of being described using the selected words "tingling (hand), tiring, horrible, burning, sickening, aching, terrible, sore, sharp, pins and needles (hand)" and her own words "head bursting". Using a scale of "0" to "10", the pursuer selected "10" ("completely") to describe the extent to which her pain interfered with her general activity, normal work and sleep. She selected only "2" in relation to the effect the pain had on her mood, "0" on her walking ability, "1" in respect of her relationships with others and "5" relative to her enjoyment of life. Using the same scale, she selected "10" (worst pain possible) to express the pain at its worst in the previous week, "5" as its best and "7" as its average severity. In evidence, the pursuer maintained that her "10" ratings had been accurate, repeating that the pain had sometimes been "excruciating".

[11] A year after the accident, the pursuer went back to work. Having eventually managed a four day week, working a seven hour day, the pursuer felt that this was a "real struggle". She was travelling into central Glasgow from Bishopbriggs and returning in the evenings in such a state that she could do virtually nothing at night. She was experiencing continuing pain in her neck, shoulder and head.

[12] In August 2006, the pursuer was examined by George Bennet FRCS. In his report dated 4 December 2006, relating to that examination (6/1), he recorded:

"She is back to working part-time some four days a week. She initially started part-time about a year after her accident and has increased this. She has never got back to full-time. She feels that this has been necessary because since the accident she has had "no energy".

The pursuer vacillated somewhat in relation to whether she would have attributed her failure to return to full time work to a lack of energy. She doubted whether she would have used those words: although conceding the possibility. She did describe herself as being "washed out" as a result of the pain. The pursuer had earlier been invited to read some three pages of the report (pp 2-4) in the witness box, including the quoted passage, and asked whether it contained any errors. She took a long time to undertake this exercise but confirmed the accuracy of the report other than in respect of an unrelated matter. Dr Bennet reported further (p 5) that:

"Her neck and arm symptoms have settled to a great extent. She still has less severe pain which requires occasional analgesics".

However, the pursuer said that, at this time, she was still taking "quite a number" of analgesics on an almost daily basis.

[13] The pursuer started driving again in late 2006. In the Summer of 2007, the pursuer reduced her hours to three eight hour days. She has continued to work at this level. Her work station had been assessed. She tried a variety of different chairs and selected one that did not make her uncomfortable. She did not tend to speak of her pain to her work colleagues.

[14] The pursuer saw Mr Bennet again in October 2007. He reported (6/7):

"She was off work for one year. She went back doing three or four days a week and currently does three days per week. She felt that she could manage four but did not want to take the risk of having to miss days because of discomfort".

The pursuer disputed that she had said that she could manage four days. She explained that, although she could stand up and walk about at work, she could not do so for as long as half an hour. Her breaks were limited and deadlines had to be met. She was not fit for full time work because of her condition and not because, as it was put to her, it suited her lifestyle to work part time. Under probing cross-examination, the pursuer said that she really did have pain all the time and did not feel well enough to work a further day each week. She accepted that she had been absent for about a month from 24 January 2007 because of "stress depression anxiety", but explained that his was because her grandson had been born seven weeks prematurely on 24 January, after her daughter had undergone an emergency caesarean section. This had been at a critical time for the reconciliation of her employer's figures. She had begun crying all the time at work and had eventually been signed unfit by her GP.

[15] Mr Bennet also observed:

"The pain is normally around 2. It is present all the time. She does not take analgesics. She stopped these because she had a feeling of pressure in her eyes and it was suggested this might be the analgesics".

The pursuer disputed the accuracy of her recorded expression of the level of pain, although she did explain that she had stopped analgesia for a while as a result of eye problems. She maintained that she had told Mr Bennet that the scale of the pain changed. It could have been "5" or "6" but was usually at least "2" and normally higher. She thought that the discrepancy might have been because of the way she had framed her answers to Mr Bennet's enquiries.

[16] The pursuer said that she still felt stiff and uncomfortable after working for three or four hours, in the context of being able to get up and move about periodically. Her sleep remained disturbed at least once a night. She takes Anadin, paracetamol and co-codamol. The pursuer maintained that she would work full time if she felt able to do so. She enjoyed her job and was working with a "good bunch of people". Having to work part time had, and continues to have, an adverse financial impact. She had been separated and divorced since the accident, lived on her own and required to support herself.

[17] The pursuer's daughter, Lindsay Drenna, lives nearby. She had required to provide the pursuer with considerable assistance, caring for her and undertaking household tasks in the first four to six months after the accident. The pursuer estimated this at between one hour per day spent on assistance from April to August. She still needed help with shopping, cleaning windows and mowing her lawn (for which she recruits her son and son-in-law). She had moved to a smaller house in Spring 2006 and had paid a decorator £500 for painting, when previously she had been a keen decorator herself.

[18] Mrs Drenna recalled having to return from South Wales, where she had gone to live with her husband for a short period, to look after her mother. She had a two year old child at the time, but had helped her mother out with household chores and personal hygiene on a daily basis for several months. She confirmed that she still assisted her mother with tasks such as changing beds and curtains, cleaning windows and shopping. She described her mother as a strong woman, who was not someone who would sit and moan. She had improved since the accident, but not by a huge amount. She confirmed that her husband and brother also assisted her mother with the gardening.

3. Medical Evidence

[19] The pursuer's expert was Mr Bennet, aged 61, a consultant orthopaedic surgeon, recently retired from the Royal Hospital for Sick Children and Stobhill Hospital. Latterly he had specialised in children's orthopaedics and medico-legal work. His first report had, he thought, been delayed from the date of examining the pursuer in August 2006 until its preparation in the following December because of the absence of medical records. In this report, he considered that the pursuer described:

"well the mechanism and symptoms of an acceleration deceleration injury of her cervical spine. Since then she [had] suffered from symptoms very typical of a whiplash-associated disorder".

He explained that the hyper extension of the spine had damaged the fibrous tissue around the verterbral discs and caused bleeding of the associated nerves. Excruciating pain was typical, if greater than expected. He had found the pursuer to be tender on the right side of the neck and across the top of the right shoulder with neck movements reduced in all directions. Her shoulder movements were normal.

[20] When Mr Bennet saw the pursuer again in October 2007, he found that she was still tender on the right side of the neck and the top of the shoulder with restriction in neck movements and some shoulder movements also. Two years after the accident, Mr Bennet considered that the pursuer's condition was likely to be permanent; in the sense of there being scope only for some small improvement. Having developed her condition, which was consistent with the mechanism of the described injury, and fitted in with the experiences of others, she would have a psychological component as well as the physical. Pain and discomfort, as Mr Bennet commented, "gets one down". Working with a computer screen was likely to aggravate any symptoms. Despite the terms of his quotation of the pursuer lacking energy, Mr Bennet had considered that it was the pain that was causing her not to work full time. He had recorded that she had complained of being sore after sitting at a computer screen all day. He disagreed with the view expressed by the defenders' expert, Ian Mackay, in a letter to the defenders' agents of 23 April 2008 (7/2) that:

"I do not think that there is any reason why she should not be working a full 35 hours a week rather than the current 24 hours a week".

[21] Mr Mackay is aged 60 and a well respected general consultant orthopaedic surgeon at Crosshouse Hospital. He has a particular interest in trauma work. He saw the pursuer on one occasion in April 2006 and produced a report on 12 June 2006 (7/1). He observed (p 8) that:

"She held her neck very stiffly, indeed remarkably so, with only 10˚ of rotation to each side being possible and she was unable to flex her neck to bring her shin the chest level, a gap of 2 inches being noted. Lateral flexion was grossly restricted to each side at some 30% of normal and I noted that hyperextension of her neck was barely possible because of general neck discomfort.

...

There was general ache and slight tenderness over the right side of the neck rather than over the spinous processes, tenderness extending down to above the right shoulder girdle."

Mr Mackay noted the pursuer's pins and needles in her hands.

[22] Mr Mackay explained, with clarity, that it was difficult to identify an organic cause of the pursuer's condition, since physical signs were not detectable in respect of such diffuse symptoms. However, he did not dispute that the most likely cause of any symptoms, which the pursuer did have, was the accident. He was disappointed that the pursuer had elected not to take drugs such as Amitriptyline. But, he confirmed, most people reading the paperwork accompanying such drugs might be upset by the prospective side effects.

[23] In relation to her ability to work, the pursuer had just begun a phased return to her employment when she saw Mr Mackay. He reported (p 10) that:

"Absence from work has been for a remarkably prolonged period, bearing in mind her normal dexterity. Even although she may be required to use analgesics at work, I would have expected her to have returned to work several months ago, possibly after some 4-6 months at most following the accident".

However, Mr Mackay recognised that there was a category of person with this type of injury, who took longer to return to work, and some of whom did not return to work at all. He regarded it as disappointing that the pursuer had not returned to work full time, given her age and previous symptom free existence. But he had not seen the pursuer again prior to writing his letter of 23 April 2008 (supra).

4. Conclusions of Fact

[24] The pursuer's account of her experiences in the accident and the pain and discomfort which she has had since then is both credible and reliable. She gave her evidence in a relatively calm and balanced manner without any significant embellishment or exaggeration. She answered the questions posed directly. Her general demeanour was that of a person trying to tell the truth, as she perceived it. Her recollection of events was clear.

[25] The main criticisms of the pursuer's testimony were centred upon the content of the medical records and reports. It was said that there were inconsistencies in the pursuer's account and her explanations over time to the doctors. Patients are not all good historians or accurate describers of symptoms. Doctors do not always record correctly, and especially fully, what their patients recount to them. Their records are for medical rather than legal purposes. Even experts, especially when writing or completing a report months after an examination, may not recall reliably all that was said. Material does become lost in translation from patient to record to report. Inconsistencies may, of course, be significant. But they are not of such substance here as to have any adverse effect on the accuracy of the pursuer's testimony. Ultimately, it was not submitted that the pursuer was lying, as distinct from exaggerating. But that criticism is not accepted.

[26] The pursuer's account of the accident and its immediate and long term effects has been broadly consistent through her reports to the paramedic, the hospital, her GP and the two orthopaedic consultants up to and including her evidence. Her described symptoms are typical of those caused by whip-lash type injuries, even although at the severe end of what might have been anticipated had a prognosis been made shortly after the accident. Although not everyone might have rated her pain at the "worst possible", the pursuer may well have perceived her pain at times to deserve a mark of ten out of ten. Her scoring in that regard has to be seen in the context of more balanced figures for the other effects of her pain.

[27] The pursuer has no history of previous neck or shoulder pain. She has been in regular employment throughout her life. There is no suggestion that she has been someone prone to complaining about medical conditions or a person who has taken unwarranted absences from her work. Although off work for a prolonged period after the accident, she returned to work on part time basis. She attempted to work four days per week but found that very difficult with neck and shoulder pain and discomfort. That is not at all surprising given that her work is almost all computer based. It may be that the pursuer could work full time, in the sense of forcing herself into doing so. But the inevitable consequence of that would be likely to be, as the pursuer herself predicts, that her condition would deteriorate and absences would be bound to follow. The reasonable thing to do is to work at a sensible, and not a forced, pace. Her approach to her work appears therefore to have been entirely sensible. She depends upon her work to support herself. She is working as hard as she reasonably can. There is no substantial basis upon which to conclude otherwise.

[28] The pursuer's approach to medical treatment has also been a reasonable one. She has attended her GP and taken a variety of analgesic medicines. She still does. Sometimes she has stopped a particular drug or treatment because of side effects, real or perceived. She has undergone physiotherapy and used a TENS machine. She has tried resting and movement. She might have gone on to take stronger drugs such as Amitriptyline, but it has to be borne in mind that the pursuer has a relatively responsible job, which must require considerable concentration in order to achieve arithmetical accuracy. It is a sensible and reasonable decision not to take drugs likely to make her drowsy or worse.

[29] The pain and discomfort which the pursuer suffers will no doubt have an adverse psychological effect upon her own notion of her abilities. That is again not at all surprising. It may manifest itself as a lack of energy. But the effects are all caused by her condition as a result of the accident. The pursuer's condition is more or less permanent even if the end of this litigation may assist in some measure. It is highly unlikely that she will be fit for full time (thirty five hour) work as set against her present commitment (twenty four). In this regard, although Mr Mackay expressed disappointment that the pursuer had not been able to return to full time work and was unable to discover any physical signs meriting her reduction in hours, his view was ultimately not that far removed from Mr Bennet's. Neither sought to characterise the pursuer's actions as in any way malingering, even if most persons sustaining the pursuer's injuries might have been able to return to full time work within a few months of the accident.

5. Damages

(a) SOLATIUM

[30] The pursuer submitted that solatium was reasonably assessed at £16,500 (with two thirds attributable to the past). Reference was made to: McWilliams v Caledonian Wild Foods 2004 SLT 1027; Leebody v Liddle 2000 SCLR 495; Paterson v Kelvin Central Buses 1997 SLT 685, all summarised in McEwan & Paton on Damages for Personal Injury (2^nd ed) paras CN5-00D/01A; and Walter v Barbeito (2000) Kemp & Kemp (Quantum of Damage) para F1-004). The defenders submitted that £6,000 was reasonable based upon the two categories of moderate neck injuries described in the English Judicial Studies Board Guidelines (8^th ed - June 2006) (c 6, (A)(b)(i) and (ii)). These suggested respectively ranges of £4,575 to £8,150 and £8,150 to £14,500. Interest at 4% on two thirds of the solution, as representing the past element, was, accepted as appropriate by both parties.

[31] There are helpful cautionary words from Lord Johnston in McWilliams v Caledonian Wild Foods (para 32) concerning the assistance provided by past cases on solatium. Nevertheless, at that time (2004), he considered that £15,000 was appropriate for a "simple whiplash injury". He awarded a greater sum because of, amongst other things, additional psychological sequelae. In Leebody v Liddle, Lord Macfadyen also proffered some useful advice (p 515) about the need to take proper account of changes in the value of money and of the risk that, if guidance is sought from past awards, there may be a tendency for the level of awards to stagnate. In Paterson v Kelvin Central Buses, Lord Dawson awarded the pursuer the figure he asked for as solatium (£11,000). The JSB Guideline figures are helpful, but the range of award appropriate to this type of cases is at least the £8,150 to £14,500 for "whiplash... injury...resulting in...serious limitation of movement, permanent or recurring pain, stiffness or discomfort". The pursuer is at the very top end of that range. Having regard to all the circumstances and in particular the permanent and painful debilitating condition, which the pursuer has, the sum of £16,500 sought as solatium is reasonable. Interest at 4% on two thirds of that figure from the date of the accident (£1,390) will be awarded as requested.

(b) LOSS OF EARNINGS

[32] The pursuer submitted that she should obtain past loss in terms of the agreed figures together with interest at 4% on these sums from the date of the accident. She also moved for the continuing loss figure of £3,600 per annum and a multiplier of six. The latter was based on her retiral date in seven years time and Ogden Table 28, which has a discount to 6.43 for such a period (on a 2.5% rate of return). This multiplier required to be reduced further for other contingencies. The defenders' submission was that there ought to be an award only for a limited period of past loss and none for the future. However, if there were to be a future award, then the multiplier ought to be based upon Ogden Table 10 (multipliers for loss of earnings of females to pension age 65), adding two years to her current age to provide an accurate figure before discounting for contingencies. This produced (again on the 2.5% rate) 6.7 years (an average of 7.11 and 6.3) before further discount.

[33] The pursuer is entitled to all of the past loss at the agreed figures. A further £300 will be added for the month since the proof. The total is £8,596 to which interest roughly as sought (£1,050) will be added. In relation to the future, the pursuer has a continuing loss of £3,600 per annum. She pursuer is now aged 551/2 and has a retiral date in seven years time. The approaches of both sides in relation to the multiplier have their merits and it is useful to take both into account. There are, no doubt, many contingencies to be considered but, ultimately, discounting from 7 to 6 is reasonable to produce £21,600.

[34] The pursuer asked for a lump sum of £1,500 plus interest for past services. This was based upon the pursuer's daughter working one hour per day for six months and then reducing to two hours per month. The gardening was also taken into account in this figure. She asked for £1,000 for the future plus the decorating costs of £500. The defenders disputed the latter figure on the basis that there was no averment on record for this and the pursuer had not said that she would have carried out the decorating. There is merit in the defenders' submission on that point, but otherwise the pursuer's figures are very moderate and fall to be added to the total together with interest (£190) on the past element.

[35] There will accordingly be a decree for £51,826. Both experts (Mr Bennet and Mr Mackay) will be certified in the appropriate manner as skilled witnesses.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nolan v First Glasgow Ltd [2008] ScotCS CSOH_86 (06 June 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_86.html Cite as: [2008] CSOH 86, 2008 Rep LR 153, 2009 SCLR 70, [2008] ScotCS CSOH_86, 2008 GWD 19-323

Scottish Court of Session Decisions