DAVID McEWAN HYNDS v. DAVID REEKIE & SONS Ltd [2013] ScotCS CSOH

"Provisional selections for redundancy have been carried out based on an assessments carried out by Craig McIlroy & John Blackburn. An explanation of the scoring system, together with your own score sheet, is attached. Regrettably, you are 'at risk' of redundancy as a result of this procedure."

A further meeting was arranged for the following day, 25 March 2010, at which the pursuer was to be given an opportunity of raising questions relating to his score sheet and his provisional selection for redundancy and any other matters relevant to his situation. That meeting took place. However, there was no change of mind and by letter of that day Mr Reekie confirmed that the pursuer's employment would be terminated on grounds of redundancy with effect from that day, with him being paid one week's wages in lieu of notice. He was notified of his rights of appeal and of his right to be accompanied at any appeal by a work colleague or trade union official. The letter ended by expressing regret for the necessity of the decision, thanking the pursuer for his valued service and offering him the company's best wishes for the future. There was an appeal hearing on 29 March 2010 at which the pursuer's scoring on the score sheet was reviewed. His score in certain categories was increased, but the amended total score was still too low to prevent him being chosen for redundancy. The appeal was rejected and the decision to make him redundant stood. There was further correspondence in April but I need not go into this.

[29] On leaving the company, the pursuer received £370 as payment in lieu of notice and holiday pay (for 16 days) of £1,184.

[30] Mr Reekie explained the scoring system used to select the two people in the contract hire section of the company who were to be made redundant. A similar system applied to select the four people to be made redundant in the machine shop. The score sheet was lodged in process, anonymised (apart from the pursuer) so as to protect the privacy of the other employees. There were ten employees in the contract hire section "scored" on this score sheet, with the pursuer's score being on the penultimate line. I shall refer to the other nine employees by the letters A, B, C, D, E, F, G, H and J. The score sheet contained information about the employee's age and length of service, and then went on to score each of them under the following four categories (with accompanying explanation):

"1. Productivity/Performance

5 Excellent performer, fast and accurate

4 Good performer, above average

3 Acceptable performance

2 Below average performance

1 Poor performer, consistently

Number of NCRs will also be considered in this category

-0.5 points for each NCR in the last year

[NCR stood, I think, for non-conformity report, i.e. mistakes made in the course of the work]

2. Skills Set (Flexibility and range of machines worked)

5 Can work a large range of machines (12 - 13)

4 Can work a good range of machines (9 - 11)

3 Can work if you machines (6 - 8)

2 Can work two or more machines (3 - 5)

1 Can work only one/two machines (1 - 2)

[A list of the relevant machinery was set out]

3. Experience

5 20+ years with Reekie

4 12 - 19 years with Reekie

3 6 - 11 years with Reekie

2 2 - 5 years with Reekie

1 under 2 years with Reekie

4. Attendance/Disciplinary Record for the last year

5 Great attendance record, no absence

4 Above-average attendance record, one absence only

3 Average attendance record, two absences

2 Below average attendance record, three absences

1 Poor attendance record, for more absences

Disciplinary record will also be considered in this category, although not disciplinary action through absence

-0.5 for each verbal warning in the last year

-1 for each written warning in the last year"

The exercise of scoring the individual employees was carried out by the foremen, Messrs McIlroy and Blackburn, sometimes on the basis of information from others. I heard evidence from Mr McIlroy. The pursuer was awarded 5 points in category 1, 4 points in category 2, 2 points in category 3 and 10 points in category 4, amounting to 21 points in all. That placed him last (ie with fewest points), 5 points behind J (who scored 26 points) and 6 points behind E (27 points). After that, the employees whose scores were nearest were C and F (both on 30 points).

[31] The pursuer had, and could have had, no complaints about his score in categories 3 and 4. Category 3 simply depended upon the number of years served with the defenders, while in category 4 the pursuer was awarded the maximum score. However, he argued that his scores in categories 1 and 2 took no account of his injury. In other words, he was not given credit for the fact that had he not been injured he would have continued to work and gain experience, his skill set would have increased (he would have worked on a greater number of different machines) and his productivity/performance would almost certainly have improved. In the appeal process these points were accepted to some extent by Mr Reekie. As regards category 1, his score was increased from 5 to 6, the explanation being essentially twofold: first, that since he was being assessed as a contract hire operator, ie working on-site rather than in the machine shop, he should not have been given a minus half-point for one NCR raised while working in the machine shop; and, second, that they should have taken into consideration the fact that his performance would probably have improved had he been in full-time employment. As regards category 2, his score was increased from 4 to 7. The explanation was that the previous scoring had been based only on his work as a contract hire operator, not giving him credit for work undertaken within the machine shop. Having reviewed the evidence of machines which he had worked, the defenders raised his score to 6. They then took account of the fact that due to his disability he had not gained sufficient productive experience on the use of Reekie portable machine tools, so they took a "retrospective look" at the possibility of him having gained experience on additional machine tools had he been in full-time employment. As a result, they increased his score by an additional one point, to bring it up to 7. As a result of this reassessment on appeal, the pursuer's overall score was increased from 21 to 25, still one point behind J and two points behind E.

[32] The pursuer's case, put to Mr Reekie in cross-examination, was that this system of scoring worked to the disadvantage of the pursuer who had been off work since March 2009. Those involved in the scoring in March 2010 had not seen the pursuer or his work for more than a year. Because of his injury, he could not build up or display a track record. Further, there was a criticism that the scoring was done by foremen rather than by those involved in management. There is nothing in this last point; the foremen are more likely to be able to assess the workforce, and the scoring was largely objective rather than based upon a subjective assessment by the scorer. As to the other criticisms, it was suggested that had the pursuer been able to work during the intervening period, it was possible that he might have been able to gain experience on additional machines, and thus increase his category 2 score to 8 or 9 rather than merely to 7. Similarly, his category 1 score might have increased to 8, rather than merely to 6. An extra two points would have made him equal with E (on 27 points), while an extra three points would have taken him above E and out of the bottom two. Mr Reekie candidly accepted that these were possibilities. So, I think, did Mr McIlroy. However, I did not consider that this line of argument really advanced the pursuer's case. Mr Reekie was an impressive witness. He was not trying to paint the pursuer in an unfavourable light. The appeal process had increased the pursuer's score from 21 points to 25 points. Another one point would not have helped him, since he would still have been below E. Another two points would have made him equal with E, and would not necessarily have helped him. I am not persuaded that he should have been awarded more than he was awarded after appeal, and in particular I am not persuaded that he should have been awarded enough additional points to have made a difference to the outcome.

[33] In assessing the process pursuant to which the pursuer was made redundant, I have come to the conclusion that the pursuer was neither unfairly treated nor disadvantaged by the fact that he had not been working for the past year. Allowance was made for the fact that due to his disability he had been unable to work on a greater number of machines and build up a record of good workmanship, and, having heard Mr Reekie's explanation of the process, I have no reason to doubt that the whole exercise, including the appeal process, was carried out properly and in good faith. It is noteworthy that he was given the maximum of 10 points for attendance and disciplinary record (category 4) during the time that he was off work due to his injury. Further, he was given the benefit of having been employed more than two years with Reekie, a factor under the heading "Experience", even though, because of his injury, he obviously had not in fact built up two years' experience. While it was possible, as Mr Reekie very fairly accepted, that he could have been awarded more than two extra points, nothing in the evidence led before me or in the matters put to Mr Reekie in cross-examination persuades me that, having regard to the adjustments made as a result of the appeal process, the scoring exercise was carried out in a manner which was unfair to the pursuer. The other person from the machine shop who was made redundant at the same time was J, who had joined the defenders before the pursuer. J and E might have had cause for complaint had the pursuer been marked more generously upon more favourable assumptions of what he might have achieved had he been able to work.

Physical, neurological and psychiatric consequences of the accident
(i) Physical condition

[34] The pursuer's case is that, as a result of the accident, he sustained a severe injury to his spine and that, as a result, he has a significant disability manifested as symptomatic mechanical low back pain, restricted mobility and reduced exercise or static load tolerance. He has a kyphosis at the thoraco-lumbar junction. Although his back symptoms have consolidated to some extent, he continues, and will continue, to suffer chronic back pain. This limits both his employability and his social and domestic functioning; and he is at high risk, even to the level of inevitability, of suffering secondary arthritis in his back as a consequence of his injuries.

[35] The pursuer's position was supported by expert medical evidence from Mr Allan and Mr MacLean.

[36] Mr David Allan is, and has been since 1990, a consultant orthopaedic surgeon. Since 1998 he has been the director of the Queen Elizabeth National Spinal Injuries Unit for Scotland, responsible for over 170 new spinal injuries a year and a population of perhaps 4000 spinal cord injured patients in the community. He has an impressive CV. In addition to a large number of administrative and teaching posts, his work includes orthopaedic clinical practice and he has specific experience in surgical intervention in traumatic spinal fractures. He has performed over 400 spinal fixations.

[37] He examined the pursuer in October 2012. In his report (6/20 of process) he described the injuries suffered by the pursuer. He had a compression fracture of three vertebrae, namely the thoracic vertebrae T11 and T12 and the lumbar vertebrae L1, with a post traumatic kyphosis. Symptomatically, he suffered from mechanical low back pain causing physical impairment and he had significant psychological sequelae. Those matters taken together had prevented him from returning to his work as an engineer. He continued to experience significant physical impairment, albeit without any neurological deficit. As a consequence of the accident, he has a structural abnormality in the form of a post fracture increase in his normal thoracic lumbar kyphosis (ie an increase in the amount of curvature of the spine). Mr Allan explained that the intervertebral discs acted as shock absorbers. Damage to the front of the vertebrae caused the vertebrae to collapse down and increases the kyphosis at the point of injury. There was a compensating change above and below. A crushing injury such as this involved an element of torque, or rotational injury, which could lead to micro fractures and was associated with a poorer prognosis.

[38] Mr Allan said that that type of injury was rare. Less than 2% of spinal injuries assessed by the National Spinal Injuries Unit were crush injuries of that type. Following an acute injury such as that, micro fractures respond to physiological loading by the formation of a kyphosis. The injury, and this deformity, is associated with an increased severity and frequency of mechanical low back pain, with or without neurological sequelae.

[39] Acute or late surgical intervention in such cases was rare. Surgical intervention was very uncommon and the result of such intervention was generally uncertain. Increased incidence of mechanical low back pain was usually related to increased load activity in the motion segment adjacent to the injured vertebrae, both proximally and distally, and those symptoms were not modified by surgical correction or fusion of the injured segment. The natural history was for progressive fusion of the damaged areas to occur. That minimised the symptoms from the affected area, but could result in transfer of discomfort into the mobile segments above and below the injured segment. There was evidence of fusion occurring at the injured segment, as a result of which little or no further kyphosis was to be anticipated. In view of all that, surgical correction or stabilisation of the pursuer's fractured segment was unnecessary and would not modify his current symptoms or level of physical impairment.

[40] As a result of the accident, the pursuer had a significant disability related to his fracture patters, manifest as a symptomatic mechanical low back pain, restricted mobility and reduced exercise or static load tolerance (ie standing or sitting still). It was not surprising that although the pursuer could walk and work up to November 2008, the disability became worse by March 2009.

[41] Mr Allan concluded that the pursuer's physical impairment attributable to the accident placed him at a disadvantage in the labour market. It was unlikely that he would be able to work full-time, even in a sedentary or semi-sedentary occupation. It was unlikely that he would be able to return to a 35/40 hour week. He would have to look for part-time work and would need to take mini breaks during the course of the working day. It was probable that his impairment would prevent the pursuer from working to a full retirement age (say, 65). There was likely to be an increase in his symptoms, whether those be recurrent aches or episodes of more acute discomfort. It was likely that the pursuer could work for another 5 or 10 years.

[42] Mr Angus MacLean is an orthopaedic and trauma surgeon and the lead clinician for trauma services at Glasgow Royal Infirmary. He has been a consultant since 2005. He knew Mr Allan well, having been his trainee in the Spinal Injuries Unit. He was willing to defer to Mr Allan's opinion because, as he put it, "he does more of this than anyone".

[43] Mr MacLean met the pursuer in July 2011 and produced a report (6/10 of process). The pursuer reported that his back remained stiff and that he had ongoing pain in his lower and mid back which was constant, though variable in nature. He was doing exercises to help control his back pain. He was also having physiotherapy. He had been advised by Mr Reece that heavy work was hampering his recovery. On advice, he stopped work in 2009 and has not worked since then. He currently felt unfit for work and noted significant psychological problems including anxiety, depression and possibly PTSD. His back pain limited his ability to work, whether in employment or domestically (eg in heavier domestic duties such as housework, shopping and cutting the grass); but he felt that he could physically undertake light manual work.

[44] Mr MacLean described his examination, which lasted for about two hours. The pursuer had apparently lost some height (from 6'1" at the time of the accident to 5' 111/2" at the time of the examination) but had put on about two stone in weight. He walked with an asymmetrical gait and with a mild limp. He shuffled uncomfortably in his chair throughout the discussion.

[45] Mr MacLean's opinion and prognosis was to the following effect. He considered that the pursuer had been "remarkably stoical" and in continuing to work despite the severe injury - most people with spinal injury would not return to work. Once the full extent of his injury had been identified following the CT scan, the pursuer had received treatment by means of analgesia, physiotherapy and subsequent investigation which had confirmed the severity of his injuries. While surgery was discussed as a possibility, the spinal specialist decided that at several months post injury it was unlikely that correction of the "kyphotic deformity" would lead to any improvement of his back pain symptoms. Mr MacLean agreed with this. Although the pursuer complained of lack of coordination and weakness in his leg, particularly on the left side, that had never been formally documented as being due to true neurological deficit and there was no evidence of such deficit in existence. Any transient neurological damage appeared to have recovered fully. Nerve irritation and bruising consequent upon the injury had also resolved. While the pursuer still had symptoms, there were no findings of current neurological damage.

[46] Mr MacLean described the pursuer's back pain over the course of the previous three years as "severe". It had improved to a plateau about one year ago, but at the time of his inspection the back was stiffer than he believed it to have been then. This probably represented secondary stiffening due to chronic soft tissue damage and possible secondary degenerative change in the smaller joints of the back. The on-going back pain which the pursuer was still suffering was constant, but varied in nature from relatively mild to moderately severe. That back pain was likely to persist for the foreseeable future.

[47] Mr MacLean went on to express concern about the pursuer's psychological functioning which, he thought, had been dramatically affected by the consequences of the accident. His medical records documented the history of anxiety and depression following the accident, and there was mention of PTSD. Without doubt, Mr MacLean said, the pursuer's psychological problems severely impacted upon his perception of his ongoing disability and back pain.

[48] The pursuer had sustained a significantly deforming injury with fractures to his lumbar spine. That predisposed him to secondary arthritis in his back; he would probably develop significant secondary arthritis in his spine over the next 10 - 20 years, leaving him with a stiff back and an increased level of back pain, but this was unlikely to progress so dramatically as to cause additional disability beyond his current limitations. He was also at risk of secondary degenerative spinal stenosis (narrowing of the spinal canal causing nerve compression) as a result of the accident, though the risk of that was quite low (probably no greater than 10 - 20%).

[49] So far as concerned the effects of the injury on his employment prospects, Mr MacLean concluded that the pursuer was physically fit to undertake "non-manual/sedentary work". He had little doubt that the pursuer would not return to heavy manual work as a result of the back injury and both the physical and psychological components of that, though as regards the latter he would defer to a psychologist or psychiatrist. As regards the social and domestic effects of the injury, he noted that the pursuer was independently self-caring, albeit often in some pain. He was capable of most normal day-to-day domestic activities, though at a slower pace (and with on-going back pain and psychological upset) but he struggled with heavier domestic chores including DIY and gardening. He would require assistance with heavier domestic activities.

[50] Mr MacLean saw the pursuer again in October 2012. He was told that the pursuer had undergone further physiotherapy on an "as needed" basis when his back was particularly painful, but that that had been curtailed due to recurrent anxiety or PTSD (referring in particular to the scaffolding incident mentioned above). He noted that the pursuer had also seen Mr Reece, the orthopaedic surgeon, again due to concerns regarding his kyphosis and his ongoing back pain. The kyphosis had increased to approximately 45°. However, Mr Reece suggested that there were signs of the kyphotic deformity fusing or stabilising, and it was agreed that they would consider surgery only as a last resort in the event of an unexpected dramatic deterioration. At the end of his report, giving his opinion and prognosis, Mr MacLean expressed the view that the pursuer's back pain had remained static and that his recovery had reached a plateau. He did not think that there was a great risk of progressive kyphotic deformity, and it remained the case that surgery was unlikely to be of benefit. The pursuer would continue to suffer regular back pain, with the risk of developing secondary degenerative change both in the injured part and in the levels above and below. He considered that the pursuer remained fit to do manual work, albeit he would have to be able to sit down and even then only on a part-time basis. That really pointed to home-based part-time working. He would struggle to undertake a fixed working commitment. It was unlikely that he would work again in any meaningful way in paid employment. His social and domestic prognosis remained much the same.

[51] Much of diagnosis by Mr Allan and Mr MacLean of the pursuer's physical condition was accepted by the defenders. However, their case was that the pursuer's condition would resolve itself within another two years or so; and that thereafter he would only suffer intermittent exacerbations of back pain, perhaps once a year and lasting from between four and six weeks on each occasion. Such a prognosis would permit the pursuer to return to moderate/ heavy work.

[52] The defenders' case was advanced on the basis of evidence given by Mr Christopher Adams. Since January 2001 he has worked full-time in elective and emergency spinal conditions surgery at Edinburgh and Nottingham. He became a consultant spine surgeon in 2004 at the Centre for Spinal Studies and Surgery in the Queen's Medical Centre University Hospital NHS Trust in Nottingham. In October 2006 he transferred that consultancy to the Scottish National Spine Deformity Service in Lothian NHS trust in Edinburgh, and was appointed as the clinical lead in intra-operative spinal cord monitoring in January 2010. He explained that his current clinical practice was for the full range of spine conditions, including management of those conditions across adult and paediatric groups. In his oral evidence he expanded upon this. His work with spinal deformity concerns deformity which is inherited or developed as well as deformity acquired through trauma. Some 5% or so of his work is trauma related. He said that he had come across patients with similar complaints to those experienced by the pursuer.

[53] Having examined the pursuer, Mr Adams prepared a report (7/31 of process). In the section headed "Findings on Clinical Examination" he commented that he observed the pursuer sitting in an office chair with arms for about twenty minutes without discomfort. He observed that his gait was normal and that he was able to heel and toe walk unaided. His spinal alignment was abnormal in the sagittal plane with a kyphosis centred at the thoraco-lumbar junction. On forward flexion this did not change, and no angular gibbus formed. There was no scoliosis (or rotation). Forward flexion of the lumbar spine was normal and, although there was pain on flexion, there was none on extension.

[54] In a section headed "Opinion and Conclusions", Mr Adams set out his spinal diagnoses, which were not significantly different from those mentioned earlier. There were vertebral fractures with associated intervertebral disc injuries, resulting in a spinal deformity (thoracolumbar kyphosis), but no persisting neurology. He observed associated soft tissue injury of the thoraco-lumbar spine. Dealing with the "Mechanism of Injury", while accepting that the pursuer had suffered a severe load applied to his spine, causing the injuries which could have been of such severity that the spine became unstable, and leading to a spinal cord injury resulting in paralysis, in fact in the pursuer's case the multiple vertebral fractures were of a lesser extent; the spine remained stable, and the temporary spinal cord symptoms not only did not progress but in fact resolved within a few months.

[55] Mr Adams said that the literature pointed to a variable outcome following such severe spinal fractures. The best study in the literature was Wood et al, 2003, although the spinal fractures considered there were of greater magnitude than those suffered by the pursuer. 74% (17 out of 24) of the group that was treated non-operatively in that study was able to return to work within six months of injury. 15 of the 17 returned to a similar job. Mr Adams said that both his experience and the literature showed the final outcome usually to be one of improvement, stabilising within about two years from the injury. In the pursuer's case, the reverse of the usual clinical path had occurred; he was able to do much more for the six months following the accident and then his condition deteriorated. I understood him to mean that this interrupted or delayed (rather than prevented) the injury stabilising in this way. It was more likely than not that the pursuer would suffer intermittent exacerbations of back pain lasting between four and six weeks at a time for the rest his life. But this was unlikely to happen more than once a year. To reduce the risk of this, the pursuer should consider regular exercise in the gym and swimming.

[56] As regards "Work, Disability and Activities of Daily Living", Mr Adams said that the pursuer was disadvantaged in the open labour market from the date of the accident until the current time, but the amount of disadvantage was more difficult to assess. He considered that the pursuer could probably perform a moderately heavy job, and certainly a job that was office-based. He had many patients with more severe deformities who were able to be in full-time employment. The pursuer could use his physics, engineering and theology background. Certain modifications, such as a standing desk arrangement or a suitable chair would allow him to work in an office environment. In his opinion, the restriction on the pursuer's ability to work was much more psychological or psychiatric than physical.

[57] Mr Allan joined issue with Mr Adams on a number of fronts. While recognising Mr Adams' qualifications as a spinal surgeon, he suggested that Mr Adams would not deal routinely with spinal fractures. The two things were completely different. Mr Allan was comfortable with the diagnosis that the pursuer's symptoms had developed over time, and he had no difficulty with the recommendation that the pursuer undertake gym and other fitness work in order to attempt to reduce the risk of frequently suffering intense back pain. He agreed that that periods during which the pain was exacerbated might last for about 4-6 weeks at a time, but he did not accept Mr Allan's opinion that the pursuer was likely to suffer such pain for such periods only once a year. That was not his experience. He would expect it to occur much more frequently. Nor was he comfortable with the opinion that the pursuer "could perform a moderately heavy job". Mr Adams referred in his report to many patients "with more severe deformities" who were able to be in full-time employment; but Mr Allan considered that it was not appropriate to equate fractures with deformities. He (Mr Allan) had focused entirely on physical incapacity. In his opinion the pursuer was disabled as a result of the accident. It was unlikely that he could return to full-time work, whatever that work might be.

[58] Mr MacLean did not agree with the prognosis advanced by Mr Adams, which appeared to be based in part on Mr Adams' experience of dealing with patients and in part on the study by Woods et al. Mr MacLean did not agree that the study demonstrated any such thing. The study was concerned with "burst" fractures, where the patients had single level injuries, whereas in this case the pursuer had injuries on three levels. The average amount of kyphosis suffered by the group studied in the paper was about 10°, compared with a kyphosis of 40° (and progressing) suffered by the pursuer. That study could not be relied upon for a prognosis for the pursuer. In addition, Mr MacLean had "no idea" what was the basis for Mr Adams' assertion that the pursuer would probably suffer exacerbations of back pain only once a year.

[59] As noted above, Mr Adams placed some reliance on the paper by Woods et al which examined "Operative Compared with Non-operative Treatment of a Thoracolumbar Burst Fracture without Neurological Deficit". As that title suggests, the purpose of the research was to ascertain whether, in the case of patients with a thoracolumbar burst fracture but without any neurological deficit, operative treatment (ie surgical intervention) led to superior long-term clinical outcomes than non-operative treatment (application of a body cast or orthosis). For this purpose, 47 randomly selected patients (reduced from 53 for various unrelated reasons) were divided into two almost equal groups, one of which was given operative treatment and the other non-operative treatment. The initial hypothesis was that operative treatment would lead to a superior long-term clinical outcome. The conclusion arrived at after the study was that it did not. The study was not, therefore, directed to assessing the level of long-term recovery in itself - it was simply a comparison of outcomes between patients who had had operative treatment and those who had not had it. That is reflected in the manner in which outcomes were reported. The study identified that there were no significant differences between the two treatment groups with respect to pain suffered, either at the time of presentation or at the final follow-up examination. Nor was there any other substantial difference in benefit between the two different types of treatment. So far as concerns the ability of patients to return to work, though the study noted that of the 23 patients who were treated non-operatively, 17 (74%) resumed work within six months and a further two resumed work within two years. Of those 19 who return to work, 15 return to "a similar job", the others moving to a "less strenuous job". No indication is given of the types of job or how strenuous they are - Mr Adams did not know what jobs they returned to. The study goes on to note that "the ability of patients with a non-operatively treated burst fracture to return successfully to vigorous work has been reported often." This is stated under reference to a study by Mumford et al (1993) which reported that 81% (26/32) of patients who were treated with a brace were able to return to work, and 60% (17) of them returned to jobs at the same level of activity. However, I was not referred to this study, and the bare summary of its findings given in Woods et al provides insufficient basis for any understanding of the type of "vigorous work" or what was included within the expression (jobs at the same level of activity", to which the patients were able to return; nor does it provide any sufficient basis for any conclusions as to the type of work which the pursuer in the present case might be able to undertake. In addition, the point made by Mr MacLean, namely that the degree of kyphosis in the patients studied in Woods et al is markedly different from that suffered by the pursuer, seems to me to be a good one. Although Mr Adams said that the difference in the degree of kyphosis was immaterial, I was not persuaded that I could simply disregard it. In addition, the patients considered in the study had single level injuries, compared with the injuries on three levels suffered by the pursuer. In fact, the patients were selected for study by Woods et al had to meet certain "entrance" or "inclusion" criteria. I need not recite those criteria in detail - they included, for example, only suffering from an isolated single level injury - but Mr Adams accepted that the pursuer did not meet at least four of the eight criteria listed and would not have been accepted for inclusion in the study. That, too, causes me to doubt the assistance to be obtained from this study. I am not persuaded, on the material performing, that I should regard the Woods study as necessarily casting any light on the likely outcome for the pursuer.

[60] One problem in considering what weight to attach to Mr Adams' opinion that the pursuer could probably perform "a moderately heavy job" is the looseness of terminology employed. What constitutes a "moderately heavy job"? In the course of the evidence I was shown an extract from a standard international classification of physical demands of work. In that classification, medium work is described as involving "exerting up to 50lbs force [about 25kg] on an occasional basis [ie for up to one third of the working day], and/or up to 20lbs [about 10kg] frequently [ie for between one third and two thirds of the working day], and/or up to 20lbs [about 10kg] of force constantly to move objects." Heavy work involves twice those amounts; it is described as "exerting up to 100lbs [about 50kg] on an occasional basis [ie for up to one third of the working day], and/or up to 50lbs [about 25kg] frequently [ie for between one third and two thirds of the working day], and/or up to 50lbs [about 25kg] of force constantly to move objects." Light work involves lighter force, 20lbs (about 10kg) for up to one third of the day or 10lbs (5kg) for up to two thirds of the day and/or walking, standing and pushing and pulling levers (as in a production line). Assuming that "moderately heavy" lies somewhere in between medium and heavy, I find it difficult to conceive of someone with the injuries suffered by the pursuer being able to undertake such work with any regularity. In asserting that the pursuer could probably perform a "moderately heavy job", Mr Adams accepted that there would be pain, but considered that it would be manageable pain. The key, he thought, was in the "manageability" of the pain. It came down, in his opinion, to a psychological question. Mr Allan sharply disagreed with the suggestion that the pursuer would be able to perform a "moderately heavy job". I agree with Mr Allan. My assessment, on the evidence I have heard, is that the pursuer is capable of undertaking light, mainly sedentary, work on a restricted, probably part-time, basis. He is not capable of undertaking moderately heavy work.

(ii) Neurological evidence

[61] Neurological evidence was given on behalf of the pursuer by Mr Metcalfe, a consultant neurologist. He examined the pursuer on 29 March 2012. He noted that the pursuer had had psychological issues, characterised as PTSD, and back injuries. Those were matters dealt with by others. So far as concerned neurological complaints, he identified two problems. Immediately after the injury the pursuer had had a loss of bowel continence which lasted for about three weeks. That was not a continuing problem. However, following on from that, he had been left with permanent impairment of his sexual function - he had lost the ability to ejaculate, though he was able to get an erection. In addition, he had some weakness of the legs, intermittently affecting his ability to walk and resulting in a loss of feeling on the skin of the left lateral calf muscle. The pursuer himself did not give evidence of this. Ms Bain explained this on the basis that to have asked the pursuer about such matters would have been humiliating for him. In addition to Mr Metcalfe's evidence, the pursuer had also told Mr Markus about this sexual impairment, and Mr Markus too gave evidence to that effect.

[62] This evidence was unchallenged. Dr Metcalf's evidence on these matters was accepted by the defenders in their final submissions. Although the pursuer himself did not discuss the sexual impairment resulting from the accident, it seems to me that I can properly take account of Dr Metcalfe's evidence on this point, though I am left without any real guidance, which could only have come from the pursuer himself, as to the importance of this sexual impairment to him.

(iii) Psychiatric issues

[63] Evidence on these matters was given on behalf of the pursuer by Dr Alan Wylie, a consultant psychiatrist in general psychiatry and substance misuse. He saw the pursuer on 6 October 2011 and on the strength of that produced a report (6/5 of process). He saw the pursuer twice more, on 26 July and 5 October 2012, and produced two supplementary report (6/17 and 6/22). Those supplementary reports were designed simply to update the position. In his first report (6/5) he set out at some length what he had been told by the pursuer both about his life before the accident, the accident itself, the injuries sustained and the psychiatric sequelae, the latter, of course, also being based upon the pursuer's own description of his condition and experiences after the accident. I mention this simply to make the obvious point that a large part of any psychiatric diagnosis depends upon the information supplied by the patient. He then went on to describe, albeit briefly, the examination of the pursuer carried out by him at the interview. His observations about the pursuer were: that his speech was coherent, with normal tone and flow, while his intellectual function appeared to be intact; that he had no suicidal or paranoid ideation, thought disorder or delusions (though he did describe depressive cognitions about the future looking bleak); that he experienced intrusive images and thoughts about the accident; and that his (the pursuer's) own assessment was that he had been affected by the accident both physically and psychiatrically and needed help. After reciting material from the pursuer's medical records, including the opinion given by Mr MacLean (for the purpose of this case) on the physical consequences of the accident, he set out his own opinion to the following effect. He considered that the symptomatology gradually increased in severity and extent to the point where a formal diagnosis of PTSD was warranted. For reasons which will become apparent, I do not need to set out in detail the factors justifying that conclusion. He also gave a diagnosis of a depressive disorder, giving rise to the development of low mood, feelings of fatigue, loss of interest, sleep disturbance, diminished concentration and diminished libido, this diagnosis of depressive disorder being, in his view, separate from that of PTSD already mentioned. He considered that with appropriate treatment it would be reasonable to expect an amelioration in that symptomatology to the point where a formal diagnostic label would no longer be warranted; but that would depend some degree upon the stresses in his life also being addressed, including the pain which he still suffering and the financial difficulties and other limitations placed upon his quality of life.

[64] I need not dwell on Dr Wylie's first supplementary report, save to note that he referred to the scaffolding incident described by the pursuer as illustrative of the problems experienced by him. His opinion as expressed in that supplementary report was unchanged. The pursuer's mental health difficulties related to the accident and the consequences of it. His psychiatric disorders would preclude him currently from returning to employment. They would continue also to have a significant adverse effect on his normal day-to-day functioning.

[65] In his second supplementary report Dr Wylie maintained the same diagnosis. The symptomatology recounted by the pursuer remained consistent with a formal diagnosis of PTSD. He continued to recount experiencing "recurrent and intrusive distressing recollections, including images and recurrent distressing dreams of the event together with nightmares outwith it." Further, he described experiencing "intense psychological distress and physiological reactivity on exposure to cues symbolising an aspect of the traumatic event, namely loud mechanical noises or trucks in response to which he will experience anxiety escalating to panic with his heart racing." There were a number of other matters set out by Dr Wylie. He maintained the view, also, that the symptomatology remained consistent with a diagnosis of depressive disorder, albeit that was at a slightly milder level than previously. He recognised that it could be argued, contrary to his view, that the depressive disorder was an intrinsic part of the PTSD, but that was probably just a matter of diagnostic semantics. While he continued to recommend both pharmacological and psychological treatment, and while he considered it would be reasonable to expect a degree of improvement with such interventions, he considered it "unlikely given the severity and duration of the disorders to the present time, that he will recover to the point he would be able to return to his previous employment as at the time of the index accident without significant risk of relapse." I should note that in his oral evidence Dr Wylie categorised the PTSD suffered by the pursuer on each of the occasions he saw him as in the range "moderate to severe".

[66] Dr Zealley gave evidence for the defenders. He has an impressive CV. He is a fellow of the Royal College of Psychiatrists and, until his retirement in 2000, it had been consultant psychiatrist at the Royal Edinburgh Hospital for nearly 20 years. For many years, from the second to the sixth edition, he was joint editor of "Companion to Psychiatric Studies", a major postgraduate psychiatry textbook, though he was not involved in the recently published seventh edition. He has acted as an expert in very many cases, compiling hundreds of expert reports, especially when there is an overlap between the physical and psychiatric effects of injury.

[67] Dr Zealley met the pursuer on 29 August 2012, a number of previous appointments having been aborted, and produced a report (7/48 of process). He too narrated the history of the matter as told to him by the pursuer and as taken from his medical records. His conclusion was that, having met the pursuer, he was "satisfied that he does not now suffer from any formal psychiatric disorder - simply experiencing (it would appear, intermittently) certain of the criteria of [PTSD], but by no means the entire syndrome of PTSD." He amplified this in his formal Opinion at the end of his report when he said this:

"The time course of events subsequent to the index accident is such as to satisfy me that, some few months after the event, [the pursuer] developed the full syndrome of [PTSD]; and that not long after the development of the disorder, his clinical condition was subsequently added to by the development of a phase [or "phases"] of Major Depressive Disorder ...

Such records as were made available to me, and my discussions with [the pursuer] himself, make it difficult to estimate the duration of the fully developed syndrome of PTSD. I consider it probable that it may have lasted between six and nine months - before lessening into a forme fruste of the disorder."

By forme fruste Dr Zealley meant a mild, incomplete or attenuated form of the disorder. His opinion, in short was that the pursuer no longer had any psychiatric illness which would prevent him from working. Although he had suffered PTSD, this had now resolved into a lesser condition.

[68] In his oral evidence, Dr Zealley referred to a "crib sheet" taken from the DSM 4 Manual, which identified six relevant criteria to look for in diagnosing PTSD. He was at pains to emphasise that although such a checklist was useful, his own view was that diagnosis of PTSD was a matter of overall impression rather than simply ticking boxes. The crib sheet was for a psychiatrist starting out, to show what to look for. I can understand and accept this reservation. Nonetheless, it provides some assistance to the court and was the subject of detailed consideration. Dr Zealley considered that four of the six criteria were readily satisfied, namely: A (exposure to a traumatic event in which certain experiences were present); B (the traumatic event being persistently re-experienced in one or more of five ways); C (persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, as indicated by three or more of seven items); and E (the duration of those symptoms being for longer than one month). However, he did not consider that either D or F was satisfied, at least as at August 2012 when he assessed the pursuer. D was: "Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) ... of": (1) difficulty falling or staying asleep; (2) irritability or outbursts of anger; (3) difficulty concentrating; (4) hypervigilance; and (5) exaggerated startle response. As I understood his evidence, and I have to say that it appeared to change from time to time, Dr Zealley considered that each of these had at some time been satisfied but none were satisfied at the time he saw him. So far as concerned F, Dr Zealley thought that, at the time of his consultation with him, the pursuer was not suffering any significant distress or impairment in his social, occupational and other areas of functioning.

[69] I found some difficulty during Dr Zealley's evidence in identifying the basis of his disagreement with Dr Wylie. They both agreed that the pursuer had at one time had PTSD, as well as a Depressive Disorder. There was less attention paid to the analysis of Depressive Disorder, and it is convenient at this stage simply to concentrate on the diagnosis of PTSD. Where they differed was in their opinion as to whether that PTSD continued beyond about mid- to late 2011, the time by which Dr Zealley considered that it had become attenuated. Dr Zealley was insistent in his diagnosis. He would assert: "that is my clinical judgement", and he frequently emphasised the weight which should be accorded to his opinion on these matters. Towards the end of his evidence I tried to ascertain whether his disagreement with Dr Wylie was in fact a difference of principle in the way that he and Dr Wylie considered the material before them; or whether it could be explained by the fact that they noted having been told different things by the pursuer. In other words, was the difference simply one of input? Dr Zealley at first appeared to reject the suggestion, saying that, even based on the information which Dr Wylie had set out in his report, he disagreed with Dr Wylie's diagnosis. Later on, however, it seemed to me that he was in fact explaining the difference in their respective diagnoses from the fact that he and Dr Wylie had taken different information from the pursuer. Dr Wylie set out the information which he had taken from the pursuer at great length in his reports. Dr Zealley did not do this. Though he said that he had looked at his notes before giving evidence, those notes were not made available.

[70] I formed the view that Dr Wylie's evidence was to be preferred. I came to that conclusion essentially for this reason, that the difference between them was largely explained by the different information on which they were proceeding. What Dr Wylie set out in his report as having been taken from the pursuer chimed with what the pursuer himself told me in the course of his evidence. It also fitted in with the evidence given by Mr Markus. Insofar as the difference between Dr Zealley and Dr Wylie could be explained by the fact that they had based their opinions on having been given different information, or perhaps put a different interpretation on what they had been told - and it seemed to me that that was the case - that meant that I should prefer the diagnosis put forward by Dr Wylie.

[71] I should add this. At the end of Dr Zealley's evidence I wondered whether it actually mattered whether the pursuer was suffering from the full form of PTSD or only a forme fruste. The real question, to my mind, is whether his condition, whether full PTSD or some lesser and incomplete form of it, affected his ability to seek and obtain employment. Dr Zealley accepted in his evidence that this attenuated form of PTSD would still be debilitating and would have a serious impact on the ability of the pursuer to obtain employment. In those circumstances, I am not persuaded that the difference in their diagnosis and in the precise label to be attached to the pursuer's condition makes a lot of difference. However, in case it does make a real difference, I am clear in my preference for the evidence of Dr Wylie.

Employability and likely employment

[72] There are two aspects to this issue. The first relates to what work the pursuer would have continued to do had he not been injured and for how long; and what would he have earned from that work. The second relates to his employment prospects in light of his present physical and psychological difficulties and the likely prognosis.

[73] As to the first aspect, this depends to a significant extent on the evidence of the pursuer as to what he was seeking to do. It was suggested on behalf of the defenders that the pursuer had no ambition to work in the heavy engineering sector. He was only doing it for the money. I accept that there may be some truth in this. The pursuer had not pursued the engineering route persistently throughout his life. He was concerned, quite understandably, not to work away from home while his children were being brought up. Although he rejected the suggestion that he would not want to be away from home if his children, in turn, had children of their own, I am not persuaded that he was so wedded to the heavy engineering sector that he would have preferred work in that sector if other equally well paid work was available elsewhere. However, it seems to me that this is really beside the point. The pursuer was quite candid in admitting that, like many others, he worked because he needed the money rather than because of his love of that particular work. While I can accept that he may not have continued in heavy engineering had some other opportunity become available, for example in the IT sector, I do not accept that he would have taken other work which was less well remunerated. In those circumstances the question of his ambition in the heavy engineering industry, and whether or not he re-entered it as a "fall back", as the defenders put it, is neither here nor there.

[74] At the time of his accident, the pursuer was earning £15 per hour for a 39 hour week as an on-site machinist, equivalent to annual earnings of £30,420 gross (or £22,914 net of tax and National Insurance). The hourly rate in the machine shop was £10. Those rates were before any overtime. Overtime was paid at time and a half (or double time if worked on the night shift), with time and a half (or double time on night shift) on Saturdays, and double time on Sundays. He would be expected to work seven 12-hour shifts if necessary. His average weekly earnings in the 13 weeks prior to stopping work at the end of March 2009, inclusive of overtime, were £647.96 gross, equating to annual earnings of £33,694 gross (or £24,799 net). It was noted from the defenders' records that another employee, Mr McLardie, earned slightly less during that same period; but for the 11 months of the 2011/2012 tax year his earnings stood at £47,123 gross, equivalent to annual earnings of £51,407 gross (or £37,141 net). That provides some indication of what the pursuer might have earned in the future had it not been for the accident.

[75] The pursuer suggested to Mr Douglas Govan, the defender's employment expert, when interviewed by him, that Mr McLardie was not an appropriate comparator. He explained this in evidence by saying that Mr McLardie spent more time in the machine shop and therefore would have been on a lower hourly rate. This is a point which I shall bear in mind when making a final assessment of damages, but it should be noted that ultimately it was for the company rather than the employee to decide what job the employee should be allocated at any given time. It was not inevitable that the pursuer would be assigned to on-site jobs all or even most of the time.

[76] The pursuer gave evidence about how he thought his working life would have developed had the accident not happened. He was well qualified and experienced in that area of work. He had a physics and maths background and an ability to speak to people. He regarded his work as an on-site machinist as the first rung on a new career. His evidence was that he anticipated moving up within the defender company into a management position within a few years. Alternatively he might have moved to work for one of the other two companies engaged in the same activity. In his evidence in chief, he said that he would have hoped to have worked to retirement age (ie until he reached the age of 66), though he might have wanted to work beyond that. He knew of someone at the defenders who are still working aged 72. The suggestion was made on behalf the pursuer, in final submissions, that he would have carried on working until age 70. I have my doubts about this, particularly if he had remained actively working in the heavy engineering sector. Whether he would have continued even to age 66 must be in some doubt, given the nature of the work. Mr Ian Richardson, the co-employee who had been with the pursuer at the time of the accident, who had left the defenders' employment shortly after the accident and moved to work for another company ("X Ltd") in the same field, gave evidence of a number of people in this industry retiring at 60, but this was linked to a pension scheme which had since been wound up; and in any event he pointed out that they might retire at 60 but then come back as agency workers carrying out the same work and being paid much the same (there was evidence that in busy times companies such as the defenders would take on agency workers).

[77] On the question whether the pursuer would have been able to carry on in the industry for a reasonable time had he not suffered his injury, Mr Richardson explained that there was a small number of companies that did the same type of work. After the downturn in 2008-2010, the workload now was "absolutely manic". He described 2011 as "the best ever"; and 2012 was also very busy. One could tell that it was busy by the amount of overtime being worked. X Ltd was constantly employing more people. Mr Richardson said that if he were to lose his job with X Ltd he would find another one by the next afternoon. In 2011 Mr Richardson had earned about £45,000, but that was much less than he would have earned if he was working abroad or offshore, when he would expect to earn between £60,000 and £80,000 gross. If someone who had been employed by the defenders applied for a job at X Ltd they would certainly get an interview and their application would be favourably received. 1-2 years' experience was sufficient to make someone attractive to employ. If the pursuer was to join X Ltd, he would probably start at Grade 2, and within 10 years would have reached Grade 4. Mr Richardson himself was at Grade 4. The particular Grade did not in fact have much effect on the level of pay. Someone on Grade 2 could earn the same as Mr Richardson had earned in the past year, and could have earned more than that if he had worked offshore.

[78] Mr Reekie confirmed in his evidence that, after three bad years, the defenders had now returned to profit. Mr Reekie said that some of their competitors, being more global, were better placed to absorb extra costs and go through the downturn without having to lay off people. I infer that it is possible that the defenders may take on further employees in the future once they have ridden out the recession in the industry.

[79] In my opinion I can legitimately conclude that had he not been injured, but still had been made redundant, the pursuer would probably have been able to obtain a similar job in the same sort of industry. Whether that would have been with X Ltd or with some other company, or even perhaps (given time) with the defenders, or whether he would have done the same work working for an agency, cannot be said with any certainty. But he had the skill and experience, and I have no doubt that he would have left the defenders with a good reference.

[80] Mr Peter Davies and Mr Govan, both employment experts, gave evidence on this aspect. To some extent, of course, their evidence involved an assumption on their part as to whether or not the pursuer would have been made redundant, it being the pursuer's case that had he remained in active employment he would not have been chosen for redundancy. I have found that he would have been. But, as I have said, this does not mean that he would have been unable to get a job of a similar type and at a similar level with another company in the same sort of business. I have found that he would have been able to obtain a similar job, though I accept Mr Govan's evidence that it is likely that there would have been a gap of 3-4 months before finding other employment.

[81] As to what he might have been expected to earn if he had obtained similar employment, I have already referred to the earnings of Mr McLardie and Mr Richardson. Mr Davies included in his report details of Mr McLardie's earnings from September 2008 until February 2012. He also included a table giving a range of earnings for the period 2008/2009 through to 2012/2013 "as an engineering technician, male, full-time, ASHE, 2008-2012". That table gave figures for the "Lowest Decile", the "Lower Quartile", the "Mean" and the "Upper Quartile". Mr McLardie's earnings for that same period were very close to the highest decile. That may reflect a large amount of overtime and work (on-site) away from home. There was no direct evidence as to what an agency worker would be paid, but it is legitimate, in my opinion, and to surmise that an agency worker would be paid less than a direct employee. The pursuer would have been a new employee with any new company that employed him, and would not necessarily have been given the better paid work (ie on-site work, work abroad or offshore, or long overtime hours) during the first year or two. It seems to me that I should regard him as being likely to earn, during the first two years or so, at around the Mean rate rather than that for the Upper Quartile. That approximates to the rate which he was in fact earning during his few months with the defenders. I shall apply the figures from this column of Mr Davies' Table when I come to consider the pursuer's loss of earnings from the end of March until the date of this Opinion. Thereafter, however, I have no reason to doubt that he would have earned at or about the Upper Quartile rate.

[82] The second aspect, which relates to the pursuer's current employment prospects in light of his present physical and psychological difficulties and the likely prognosis, was again the subject of expert evidence from Mr Davies and Mr Govan. To some extent their evidence depended upon the findings by the court on the medical and psychiatric evidence relating to the pursuer's current and likely future disabilities. But they also differed in their analysis of the jobs market.

[83] Mr Davies considered that, with his problems of pain and discomfort in his back, the pursuer was probably fit only for light sedentary work. Within that category, IT work would probably be the most suitable. However, that would require working with other people and travelling from place to place, and the psychological difficulties from which the pursuer suffered might well make that impossible. He produced a table showing the difficulties encountered in gaining employment by those with depression or, more pertinently, some other mental condition such as PTSD. His overall assessment was that the pursuer's prospects of obtaining any work in the future were not at all good. That tended to be the position with those who had been out of work for physical or mental reasons for a significant period. Around the Glasgow and Greenock area, over the last year or two the number of applicants for jobs as computer engineers had tended to range from about 30 applicants per job to a figure of around 160 applicants per job. The prospects were less daunting for jobs within IT User Support but, given that his IT experience was not recent, Mr Davies thought that the pursuer would struggle to secure that sort of employment. Unemployment rates for those with a disability were markedly higher than rates for those who were not disabled. He thought that the only realistic prospect for the pursuer would be to undertake some work on either a voluntary or "Permitted Work/Earnings" basis.

[84] Mr Govan took as his starting point the opinion of Mr Adams, that, although unable to return to heavy manual labour, the pursuer was fit for sedentary "and perhaps moderate manual employment" (which he described as probably between "light" and "medium" on the classification to which I have already referred); and he also took as a given Dr Zealley's opinion that the pursuer was not now suffering from PTSD or any significant psychological illness. On this basis he took a "more positive" view of the pursuer's future employment outlook. It would be open to him, he thought, to continue in some form of engineering, albeit moving away from the heavy manual work to work at technician level, for example as a skilled machinist. Such a job, he accepted, involved heavy manual work. On the view which I have expressed in the section of this Opinion dealing with the pursuer's physical condition after the accident, I do not accept that he could now carry out such work. Nor is he psychologically able to cope with that type of work. Mr Govan then suggested that there might be opportunities in IT operations and support, computer engineering or perhaps web design, allowing the pursuer to build on previous experience and enabling him to distance himself from the heavier aspects of engineering. This would involve refresher training or other training specific to the particular role sought to be filled. He thought it more likely than not that the pursuer would return to employment in engineering at technician level, involving IT support skills but not heavy manual work. On that basis he would expect to earn in the region of £22,838 gross (£18,062 net) rising to £29,693 gross (£22,723 net). If he were able to sustain full-time employment in such work, he had the potential to reach earnings of about £38,016 gross (£28,383 net). If, however, the pursuer decided not to pursue employment in the engineering field, then as a science and theology graduate there would, he thought, be many other potential career opportunities that he might look at. Mr Davies did not disagree with the above earnings figures on the assumptions made by Mr Govan that the pursuer was physically and psychologically able to carry out such work and did in fact get a job in such a role.

[85] As I have said, I regard the premise upon which Mr Govan gave his evidence as unrealistic. That is not a criticism of him, simply a reflection of my findings as to the pursuer's physical and psychological disabilities. I consider that Mr Govan's evidence that he might nonetheless obtain employment in the IT sector, or in offering IT support skills in the engineering field, to be over-optimistic. Having regard in particular to his age and the fact that he obtained his IT qualifications some time ago, and in particular the PTSD and depression from which he continues to suffer, I regard the prospects of him obtaining such employment as poor. On the basis of Mr Davies' evidence I consider it unlikely that the pursuer will be able to obtain any significant income in the future. He might be able to work on a voluntary or "Permitted Work/Earnings" basis, but that is all.

The particular heads of claim

[86] Against these background findings of fact on the different issues, I now turn to consider the particular heads of claim. At the end of the proof, and because of a shortage of time, parties handed in written submissions of the matters with which I have already dealt and on detailed issues of quantum. I am grateful to both parties for that work. It has proved very helpful. There was, however, insufficient time to go through the submissions in any detail. I indicated, therefore, that there might be a few points on which I might require to be addressed. In the detailed findings on quantum that follow, both as regards interest calculations and some other matters, I have decided some matters in principle, leaving the parties to work out the precise figures which follow from my decision. This may result in some matters requiring further discussion.

(i) Solatium

[87] For the pursuers, Ms Bain suggested a figure of £80,000 for solatium. She summarised the relevant factors as follows. The pursuer is a 51-year-old divorced man, a single parent, who has suffered crush fractures at three levels in his vertebrae, and has probably suffered rib and sternum fractures. Although the extent of his injuries was initially missed, they were picked up by the CT and MRI scans. He has a permanent kyphosis or curvature of the spine, is likely to develop significant secondary arthritis over the next 10 - 20 years, with consequential stiffness and increased back pain, and may possibly require further surgery (though this appears unlikely at present). At present he suffers constant back pain which varies in intensity but can be moderately severe, and has intermittent problems with control of his legs, particularly his left leg. His sexual function is impaired. He has severe psychiatric symptomatology - intrusive thoughts and flashbacks, anxiety, recurrent and intrusive re-experiencing of the incident in response to various cues, increased arousal, sleep disturbance, poor concentration, hypervigilance and panic attacks - which has impacted significantly on his daily life and has affected his relationships with his children and others. He has been diagnosed as having PTSD and a Depressive Disorder.

[88] Ms Bain referred me to a number of cases mentioned in Kemp & Kemp, vol.3, and to the Judicial Studies Board ("JSB") Guidelines for the assessment of general damages in personal injury cases, 11^th edition.

[89] On the basis that I should accept the evidence of Mr Adams and Dr Zealley in preference to that given by the pursuer's experts, and that I should disregard the hearsay evidence about the pursuer's alleged sexual impairment, Mr Jones, for the defenders, advanced a figure of £40,000. He accepted that this was a serious back injury. He submitted that the amount awarded by way of solatium would depend upon my findings as to whether or not the pursuer had PTSD and/or depression, as to the level of disability and pain from which the pursuer suffered and would continue to suffer, as to the prognosis relative to the pursuer's physical and psychological states, and as to any ongoing sexual dysfunction.

[90] As is apparent from earlier sections of this Opinion, I have broadly accepted the evidence of Mr Allan and Mr MacLean to that of Mr Adams and I have also accepted the evidence of Dr Wylie in preference to that of Dr Zealley. I accept the evidence of Mr Metcalfe that the pursuer complains of sexual dysfunction, even though the pursuer himself did not give evidence of this. However, since I had no evidence as to the significance which the pursuer himself attached to this, I do not think it should feature too heavily in my assessment of the appropriate figure for solatium. Subject to this one small caveat, it seems to me that the picture presented by Ms Bain is broadly accurate.

[91] The pursuer clearly suffered a severe back injury. In dealing with orthopaedic injuries, the JSB Guidelines divide severe back injuries into three categories. Category (iii) covers cases of fractures of disks or vertebrae leading to chronic conditions where, despite treatment, there remain disabilities such as "continuing severe pain and discomfort, impaired agility, impaired sexual function, depression, personality change, alcoholism, unemployability and the risk of arthritis." It suggests a range of damages from £27,700 to £49,800. Category (ii), being more serious, includes features taking the case outside the lower bracket, including nerve root damage with associated loss of sensation, impaired mobility, impaired bladder and bowel function, as well as sexual difficulties and unsightly scarring. On the evidence which I heard I do not consider that the pursuer comes within this bracket. I would assess him as being at the top end of category (iii). The JSB Guidelines deal separately with psychiatric and psychological damage. PTSD is divided into four sections, ranging from "(a) Severe", through "(b) Moderately Severe" and "(c) Moderate", to "(d) Less Severe". I am satisfied that the pursuer does not fall into the "Moderate" section, which covers a person who has largely recovered and where any continuing effects will not be grossly disabling. His condition is worse than that. In the JSB categorisation, "Severe" covers cases involving permanent effects which prevent the injured person from working at all or at least from functioning at anything approaching the pre-trauma level, and where all aspects of his life will be badly affected, whereas "Moderately Severe" is for cases where there is a better prognosis suggesting some recovery with professional help but where the effects are still likely to cause significant disability for the foreseeable future. Suggested awards for the "severe" category are from £42,500 to £71,850, while for the "moderately severe" category the range is from £16,602 £42,500. It seems to me, on the evidence that I have heard, and taking account also of the Depressive Disorder from which he is suffering, that the pursuer falls somewhere at about the bottom end of "severe" or the top end of "moderately severe".

[92] Taking these matters separately, this assessment would lead to an award in the region of £45,000 for the physical injuries and in the region of £40,000 for the psychiatric injury. But it would in my opinion be wrong simply to add them together, if only because the guideline figure for the severe back pain takes account of the fact that the injured person will suffer depression and personality change. Doing the best I can, it seems to me that I should make an award of solatium in the sum of £70,000. There was a small disagreement according to the written submissions which I received as to how much of that should be allocated to the past, the defender suggesting half and the pursuer suggesting three quarters. I propose to allocate 5/7^ths (or £50,000) to the past. It is agreed that that amount should carry interest from the date of the accident at 4% a year.

(ii) Past and future services

[93] For the pursuer, Ms Bain asked me to accept the evidence of Stewart and April that they had helped their father with his domestic and other duties. I readily accept that evidence. Each of them gave evidence that they spent about two hours a day on average performing this role, and Ms Bain presented a calculation for past services showing each of them having been so engaged for two hours a day from 1 April 2009 until 31 March 2010 at £6 per hour, and thereafter for two hours a day until the end of the proof at £7 per hour. Her calculation then adds interest on those sums.

[94] Ms Bain submitted that future services should be assessed on the basis of £1,000 annually for each of the children, recognising that they would no longer be available to maintain their current levels of support for their father.

[95] Mr Jones accepted that for the first nine months, that being the limit of the period during which, on Dr Zealley's evidence, the pursuer was suffering from PTSD, it would be appropriate to allow a couple of hours a day at £5 an hour, giving rise to an award for this period of £2,500. Thereafter, for future services, he submitted that it would be appropriate to allow £5000 to reflect the difficulty that the pursuer appeared to have with cutting the grass and vacuuming the house.

[96] While I accept that Stewart and April have helped their father in the manner indicated, it was my understanding of their evidence that they had spent about two hours a day between them helping their father. Sometimes one would be around and sometimes the other. On some occasions both would be there. I did not understand their evidence to be that they had each spent two hours every day helping their father, ie four hours between them each day. Two hours a day was the overall time spent. On that basis, while I am prepared to accept their evidence, the proper figure for past services would be one based upon two hours per day from 1 April 2009 to date. The hourly rates suggested of £6 up until 31 March 2010 and £7 thereafter seem to me to be reasonable. So too does the suggested interest calculation, namely interest at 8% a year from 1 April 2010 on the sums attributable to the period up to 31 March 2010 (£5,110) and interest at 4% a year from that same date on the sums attributable to the period from then to date.

[97] So far as future services are concerned, this has to be a matter of very broad assessment. The pursuer is to a large extent able to look after himself. He needs physical help with certain of the heavier tasks. He also needs emotional reassurance and support. I suspect that the physical assistance will not necessarily come from his children. They might move away, or be too busy. He may need to engage some domestic or gardening help. I had no evidence of what this would cost. It seems to me that the appropriate figure to award under this head is £1,200 a year. It was suggested that the multiplier should be taken from the Ogden Tables, 7^th ed., Table 1. Ms Bain suggested that the appropriate multiplier was 21.85. That may be right. I would be grateful if parties could check and agree the appropriate figure.

(iii) Costs of past and on-going treatment

[98] The costs of past physiotherapy and chiropractic treatments were agreed by the parties at £295, with agreed interest to 16 October 2012 of £75.05. There will have to be a calculation of interest to date. Whether this is better achieved by taking the principal figure (£295) and calculating a new single figure for interest to date, or by taking the principal figure plus the agreed interest and adding interest thereon is a matter which I shall leave to the parties to resolve.

[99] A claim is also put forward for the cost of ongoing treatment, on the basis that the court accepts that some amelioration of the pursuer's condition might be provided by 10-12 sessions of EMDR (at £80-£100 each) and 10-12 sessions of CBT (at the same rate). The suggestion is that the court should allow for 22 sessions at £90 each, giving a total of £1,980. Mr Jones accepted that in principle some sum should be awarded for ongoing treatment, but said that there might be a dispute as to the type, extent and amounts. His proposal was for a lump sum of £1,000.

[100] Mr Jones did not have the opportunity of addressing me on this matter. It seems to me that the sum claimed by the pursuer under this head is not unreasonable and I would be minded to allow it; but I shall allow the defenders an opportunity to address me further should they wish to do so. If there are no further submissions to be made, then the figure put forward by Ms Bain should be included in the final calculation of damages.

(iv) Past and future wage loss
(a) Wage loss until redundancy
[101] Past wage loss from the date of the injury to the date of redundancy is agreed at £20,000. That will attract interest from 1 April 2010 to date at 8% a year.

(b) Wage loss from redundancy until judgment
[102] The pursuer has been out of work during the whole of this time. For the reasons set out above I am satisfied that he could not have obtained work during this period. I do not think that the contrary was suggested. In those circumstances the wage loss from the date of redundancy until judgment is to be measured simply by the earnings that he would probably have made had he not been injured and had been able to continue to work.

[103] I have concluded that the pursuer would still have been made redundant even if he had not suffered his injury. The decision to make him redundant was transparent. It was carried out fairly and gave him credit for skills and experience which he might have acquired had he not been injured.

[104] I accept the evidence given by Mr Govan that the pursuer might have taken 3 or 4 months to find alternative employment. However, I see no reason why this should have taken any longer than that. I therefore proceed on the basis that he would have had about four months downtime and then would have been employed full-time at the Mean rate set out in the table in Mr Davies' report.

[105] That seems to me to lead to the following conclusion in terms of the relevant figures. After some four months without employment, he would have started earning at the beginning of August 2010. His rate of pay for the period from 1 August 2010 until 5 April 2011 would have been £33,415 gross. Parties can no doubt work out the net sum. Interest at 8% a year falls to be awarded on that sum from 6 April 2011 to date. Thereafter, from 6 April 2011 to 5 April 2012 he would have earned that the rate of £34,791 gross. Again, I would invite parties to work out the net sum. Interest on that sum at 8% a year runs from 6 April 2012. From 6 April 2012 until 5 April 2013 he would have earned at the rate of £35,487 gross. The net figure should be capable of agreement. I was not given a separate figure for the rate from April 2013, but the period is short and I propose to use the same figure as for the year leading up to that date. Interest on the sums representing net lost earnings from 6 April 2012 to date should run at 4% from that date.

(c) Future wage loss from judgment
[106] The assessment of future wage loss from the date of judgment depends on my assessment, on the evidence, of what would have happened had the pursuer not been injured; and my assessment of his ability to obtain paid work now and in the future.

[107] It was submitted by Mr Jones on behalf of the defenders that this was not a case where I should apply the traditional multiplier/multiplicand approach to the assessment of future wage loss. It was submitted that there were too many uncertainties in relation to what the pursuer might have done if uninjured and what he might be able to do in his injured state. I was referred to a number of cases on this point, including Blamire v South Cumbria Health Authority [1993] PI QR Q1, Ronan v Sainsbury's Supermarket Limited 2006 WL 1783249, Ward v Allies & Morrison Architects [2012] EWCA Civ 1287, McGhee v Diageo [2008] CSOH 74 (Lord Malcolm) and Brand v Transocean [2011] CSOH 57.

[108] I recognise that there are indeed cases where the traditional multiplier/multiplicand approach is unsuitable because of the uncertainties or imponderables preventing any proper assessment of what the pursuer would have done and would have earned had he not been injured, and what he is or may in the future be capable of doing it despite his injury. Whether adopting a "broad axe" approach, as Mr Jones called it, leads to any greater certainty is, perhaps, a matter for debate. However, I need not resolve that question. I have formed the view in this case that I can reach a decision both as to the ability or otherwise of the pursuer in his injured condition to obtain paid employment and as to the approximate level of remuneration which he would have been able to achieve had he not been injured.

[109] As I have already made clear, I am satisfied that there is no realistic prospect of the pursuer of obtaining paid employment in the future at any rate so as to impact upon the assessment of future wage loss. I need not repeat the analysis of the evidence.

[110] Further, as again I have made clear, I am persuaded to a reasonable degree of confidence (ie not merely on a bare balance of probabilities) that the pursuer would have been able to obtain similar work had he not been injured. There are, of course, some uncertainties. He might have been ill. He might not have wished to work abroad if this would interfere with his family concerns. There might be some uncertainty as to the precise date on which he would have wanted to retire. And, of course, working in heavy industry there is always the possibility that he might have had to stop work earlier than he would ideally have liked. Having said that, on this last aspect, it is quite probable that had he continued working in the industry he might have progressed to a management job and therefore been less at risk of having to retire early.

[111] In my opinion I can properly assess the pursuer's future wage loss on the basis that he would have obtained employment in a similar industry and would, after having been employed for a few years, have earned at about the level for the Upper Quartile. As at 2012/2013, that Upper Quartile figure is given by Mr Davies at £39,701 a year gross. During the same period, or a bit earlier, Mr McLardie was earning £47,123 a year gross or £34,046 net. Assessment of this sort is not a precise science. I take into account that the pursuer might not have wanted to work away from home for large periods of his working life. I do not think it right, therefore, to choose a figure significantly above that for the Upper Quartile. It seems to me that I would be doing justice to the evidence by taking a figure for his earnings as at the date of this Opinion of £40,000 a year gross. Again, I would invite parties to agree the net figure. It seems to me likely that he would have worked to retirement age (66) but not beyond.

[112] There is a difference between the parties as to the appropriate multiplier and even as to the appropriate way of identifying the correct multiplier. Mr Jones, in his written submissions, helpfully identified two possible options, referred to in his note as "Model B - Ogden 7 but adjusted/differential" and "Model C - Ogden 7 unadjusted". I would welcome some further assistance on which of these models should be accepted and as to the resulting figure for loss of future earnings. Of course, if parties are able to reach agreement there will be no need to address me.

(v) Pension loss
[113] There was a measure of agreement between the parties as to this head of damages, subject to my findings as to the pursuer's future earnings had he not been injured. I am unclear from the material before me what the figure should be inserted full pension loss having regard to those findings. No doubt parties will be able to agree this.

Interim payments
[114] The defenders have made interim payments totalling £62,000. These will have to be taken account of in the final figure awarded. Whether the timing of those payments has any bearing on the interest calculations is a matter for parties to agree.

Disposal
[115] I propose to put the case out by order for discussion on any outstanding points and on the terms of the interlocutor to be pronounced giving effect to my findings. As indicated above, I would be grateful if parties could attempt to resolve any outstanding matters. In so far as there are any matters remaining in dispute, I will hear submissions on them. In that event it would be helpful if brief notes of argument could be submitted two days ahead of the by order hearing.

[116] I am grateful to parties for their assistance in this matter.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> DAVID McEWAN HYNDS v. DAVID REEKIE & SONS Ltd [2013] ScotCS CSOH_92 (11 June 2013) URL: http://www.bailii.org/scot/cases/ScotCS/2013/2013CSOH92.html Cite as: [2013] ScotCS CSOH_92

Scottish Court of Session Decisions