JANE ELPHINSTONE v. SHETLAND ISLANDS COUNCIL [2013] ScotCS CSOH

"[AH] requires close supervision due to her poor balance and history of falls. She is independent in a self-propelling wheelchair but remains at some risk of falling when transferring... [AH] is very alert and demonstrates good awareness of the situation regarding her discharge. However she does appear to have limited insight into the safety issues and the likelihood of future falls... FETLAR - environment not suitable for wheelchair mobility therefore increased likelihood of falls, spiral staircase, limited circulation space for [zimmer frame], husband on croft land nearby; YELL - environment could be easily adapted to accommodate independent self-propulstion of wheelchair, single storey house, limited support as husband feels he will need to remain on Fetlar much of the time and could not commit to being back in Yell each night; CARE CENTRE - [AH] is willing to consider this for respite but not as a long-term option; CONCLUSION - upon discussion separately with [AH] and her husband they both feel the preferred option is to return to Fetlar."

[16] A case conference was held at Gilbert Bain Hospital, presumably in the rehabilitation unit, on 12 June 2006. The minute of the case conference is missing from the bundle of 550 sheets - many double-sided - of Gilbert Bain Hospital records relating to AH which were recovered and produced on the pursuer's behalf. (There are four copies of the minute of the case conference held on 12 September 2006.) The pursuer said in evidence that she had seen "the record of the case conference" at Nordalea, implying that she saw it on 10 or 11 July 2006. She said that the minute contained an "identification of the risks by the consultant". She said that a "high risk of falls" was noted. (This seems not improbable given that one of the issues was whether AH could safely go home where she would mobilise and transfer unaided - "high risk of falls" was noted in the Nordalea risk assessments available, as I find, to the pursuer on 10 and 11 July 2006.) The representatives of Nordalea who participated in the conference were Janet Seery and Jacqueline Chiplin. Ms Seery said in evidence that she was confident that the information she was given at the case conference "was appropriate to meet the patient's needs". I feel entitled to infer that mobility issues were discussed and that there was no reference to AH requiring to be hoisted in a hospital or care setting. Certainly the pursuer never suggested that the document she saw referred to hoisting.

[17] The outcome of the case conference was that AH would go into permanent residential care at the Isleshaven Care Centre, Yell. I deduce from the presence of Nordalea staff that there was an issue about bed availability at Isleshaven and that the provision of a short-stay bed at Nordalea was discussed. Following the conference AH consistently expressed the view that she would not go to Isleshaven for anything other than interim care while the house on Yell was adapted to allow wheelchair access. Her husband supported her choice. The possibility was raised of a respite bed at Nordalea Care Centre, Unst, while the work was being done to the house on Yell.

[18] The diagnosis made at Aberdeen Royal Infirmary was of probable, progressive supranuclear palsy and the Parkinson's medication was thereafter gradually withdrawn. The consultant's report to Gilbert Bain Hospital was dated 16 June 2006. On 25 June 2006 the rehabilitation unit manual handling risk assessment was revised to note that the patient was "using wheelchair at present for going from bedroom to toilet and shower". On 26 June it was noted: "mobility deteriorating considerably, medication altered". The deterioration is detailed in the nursing note on that date. The notes record that two nurses were assisting for toilet transfers. Two-person assistance was also recorded on 29 and 30 June. The handling requirements on the risk assessment form remained unaltered, namely assistance of one person, zimmer frame and shower chair. The physiotherapy discharge note dated 3 July 2006 contained the following:

"... [AH] is now mobile using a wheelchair. She is at risk of falling if attempting to walk or transfer unaided..."

The summary was faxed to Nordalea. The separate Shetland Welfare Trust pro forma admission/ discharge summary for hospital use compared the patient's condition on admission with the condition on discharge [6/10/X59]. It was noted that AH mobilised with a zimmer frame on admission and with a wheelchair at discharge and that she was "self propelling at own pace". At admission transfers were undertaken "with assistance and supervision"; and at discharge the change noted was "requires assistance of 2 persons for all transfers." There was no reference to hoisting. The pro forma instructions were: "Please fax this completed form to the relevant care centre as early as possible." Janet Seery had the impression that the completed form might have accompanied the patient when she was transferred by ambulance from Gilbert Bain Hospital to Nordalea on 3 July 2006.

[19] When AH was admitted to Nordalea her weight was noted to be 63.05 kg, her height was described as "short" and her build as "below average". There was no intellectual impairment. There were no communication problems. AH remained at Nordalea until 23 August 2006. It was during this period that the incident involving the pursuer occurred. On 23 August AH was re-admitted to Gilbert Bain Hospital for insertion of a PEG tube because of swallowing difficulties. On 18 October 2006 AH was discharged from hospital to permanent residential care at Isleshaven Care Centre, Yell. She died on 1 October 2008.

[20] There was some discussion in the evidence as to the meaning of "weight bearing" and whether AH was capable of weight bearing while at Nordalea. The Nordalea manual handling risk assessment dated 3 July 2006 states [7/1]: "Neurological Disorder leading to balance problems and inability to weight bear without two carers." The revised Nordalea manual handling risk assessment dated 20 July 2006 states [6/5/34-35]: "AH has a neurological disorder which leads to balance problems and problems weight-bearing." Other documents, referred to below, record AH as being capable of weight bearing with a carer or carers assisting (rather than supporting). The Nordalea witnesses, with the exception of the pursuer, were satisfied that AH could weight bear in the sense that she had enough strength to carry her own weight. Her problem was intermittent loss of balance. This was best expressed by AH's key worker Angela Thomson. Professor Patrick Carr, who offered expert opinion evidence on manual handling for the pursuer equated lack of balance with lack of weight-bearing capability. He said: "Weight bearing means the ability to stand on your own without loss of balance." An issue which I have to decide is whether it was reasonable for the care workers, nurses and therapists who assessed and looked after AH to take the view that AH was capable of weight bearing with assistance for comparatively short transfers, for example from wheelchair to toilet. I think it was, generally speaking, reasonable to take that view. In the context of short assisted transfers I find it useful to differentiate between the idea of weight bearing and the idea of balance. In addressing the question of the relative value of the sources of evidence about AH's capabilities I recognise that the pursuer had experience of handling AH only for a few hours on one day.

Patient-handling equipment at Nordalea

[21] The permanent equipment for handling residents at Nordalea included three types of hoist. There were "tracking hoists". I inferred that these were fixed, ceiling mounted hoists. There was one in the bathroom and one in a room occupied by a severely disabled long-stay resident. There were also two mobile hoists, an Arjo Encore hoist and an Arjo Opera hoist. The Arjo Encore hoist was suitable for residents who had the capacity for more sustained weight-bearing than AH. It was very infrequently used and was kept in a store cupboard. The Arjo Opera hoist was kept ready for use in the corridor. It was available to assist residents who had fallen. It could also be used for transfers including toileting transfers. All types of hoist were designed to be equipped with two suites of slings, full body slings and toileting slings with cut outs, each in three sizes. The slings for the different types of hoist were not interchangeable. In addition to the hoists there were also mobile commode or toileting and shower chairs with cut outs which could be wheeled over the toilet and into the shower. The care workers routinely mobilised AH in a shower chair for her morning ablutions. After washing and dressing AH was transferred to her wheelchair.

[22] The Nordalea Arjo Opera hoist was sent to the mainland (of the United Kingdom) for repair on a date prior to the arrival of AH at Nordalea. As soon as it was known that the hoist had to go for repair, Janet Seery, the manager at Nordalea, contacted the occupational therapy department in Lerwick to ask for a temporary replacement mobile hoist. A Wispa hoist was supplied. The Wispa hoist was supplied with full body slings only. In the circumstances which transpired and with hindsight Janet Seery accepted that she might be open to criticism for not ensuring that toileting slings were supplied as well. At the moment in time when the Arjo Opera hoist was sent for repair, Nordalea accommodated only long-stay residents, none of whom required a mobile hoist for transfers. From 12 June 2006 Ms Seery appreciated the possibility that AH would be coming to Nordalea for a short stay. Her understanding, which was a reasonable one at the time, was that AH would not require to be hoisted. In any event the return of the Arjo Opera hoist was expected imminently.

[23] Unfortunately the repaired Opera hoist seems to have fallen from a lorry on its return journey to Shetland and to have been so severely damaged that it required to be replaced. An Arjo representative visited Nordalea on 4 July and told Ms Seery that a replacement Opera hoist was on its way. This was confirmed by email from Arjo on 5 July. The replacement Opera hoist was expected on 7 July. It had still not arrived by 10 July. On the morning of 11 July Janet Seery telephoned Arjo and discovered that the replacement Opera hoist had still not been dispatched. She was assured that the replacement hoist would be dispatched that day. Also on the morning of 11 July 2006 Ms Seery requested the occupational therapy department to supply a toileting sling for the Wispa hoist. The toileting sling arrived on 14 July. The replacement Arjo Opera hoist seems to have arrived between 15 and 20 July. In the meantime the pursuer experienced symptoms in her back which she blamed on the fact that she was required to assist in undertaking toileting transfers of AH without a suitable hoist and sling. I wondered whether there might be a force majeure defence, but none was advanced.

The pursuer's bad back

[24] Counsel told me that the agreed damages reflect the fact that the pursuer would have had problems with her back anyway within two or three years. The pursuer had "a bad back". In July 2006 the pursuer was aged 48 years. Three previous procedures had been carried out on her spine, starting when she was 36 years old. She had had an unsuccessful chemonucleolysis procedure for a disc prolapse at the L4/5 level followed by a decompression, both in 1994, and discectomy at the same level in 2003. Dr Mark Hilditch, consultant occupational health physician, Shetland NHS, gave evidence about the pursuer's occupational health assessments and her phased return to work in 2005. My impression was that the defenders went to extraordinary lengths to ensure that the pursuer could be safely re-employed in her post as a senior social care worker. In this context it is worth noting that when in October 2005 the pursuer was being assessed for her return to full duties it was reported that her main problem was a twisting movement of the upper body from the waist which "can cause her pain and discomfort" [6/5/12]. The pursuer was assessed as fit for all duties other than taking the lead with the mobile hoist and putting the hoisting sling into its final position when the resident was seated. The pursuer appears to have had occasional symptoms in the period 2003 to 2006. The symptoms were attributed to her known back problem. It was well understood by the pursuer and her employers that the pursuer had to be careful with her back because of the known problem.

[25] What part if any did the known back problem play in and from 2006? The treating surgeon in 2006―2007 was Mr David Knight FRCS (Ed), consultant orthopaedic surgeon, Woodend Hospital, Aberdeen. Mr Knight was not called to testify for the pursuer: but the records of the pursuer while under his care were put in evidence and his correspondence with, and reports addressed to the pursuer's agents were agreed to be his evidence. These documents show Mr Knight adopting an advocacy role, telling the pursuer's agents on 20 July 2009 that the "causation of back pain after a lifting incident is controversial" and going on to advise the agents on 14 December 2009 to "major on the inappropriateness of what [the pursuer] was asked to do". Proceeding on the account given to him by the pursuer, Mr Knight wrote:

"It seems entirely inappropriate that somebody who had two previous significant spinal operations was asked to be involved in heavy lifting duties... [the pursuer's] employers failed to provide the environment that would have limited the risk of further back pain problems."

In his medico-legal report Mr Knight was prepared to say that the 2006 incident, as he understood it, was "responsible for significantly more than 50% of the pursuer's current symptoms". Looked at in a negative way, this might mean a number of different things. For example, it is capable of meaning that a substantial part of the pursuer's symptomatology had no identifiable organic basis; and it is capable of meaning that a substantial part was attributable to the existing pathology. Counsel treated it as meaning that the previously known problem accounted for at least a substantial part of the symptoms ongoing from 2006. Mr Knight's letter to the pursuer's general practitioner dated 22 December 2006 described "a fairly global distribution of symptoms" meaning that nerve roots at multiple levels of the lumbar spine were apparently implicated.

[26] Mr Niall Craig FRCS (Ed), consultant trauma and orthopaedic surgeon at Aberdeen Royal Infirmary, who did give evidence for the pursuer, was in general agreement, understanding that Mr Knight meant that a proportion of the symptoms suffered in and from 2006 was attributable to the known problem. In his medico-legal report dated 20 September 2011 Mr Craig stated that the "new symptoms" developed by the pursuer, on her account of matters, on and from 11 July 2006 "are contributing to approximately 50% of her ongoing symptoms". In oral evidence he was not disposed to say categorically what proportion could be accounted for by the previous problem. He also conceded that the previous L4/5 problem might possibly have caused all the symptoms apparently suffered from 2006 or was capable of causing all such symptoms. When Mr Craig examined the pursuer for the purpose of his medico-legal report he noted that the worst back pain was at the L4/5 level which, he reported "is related to the pre-existing degenerative change". I have to emphasise that the present case has not been presented to any extent as a claim for exacerbation of symptoms from the pre-existing pathology.

New back symptoms?

[27] The pursuer's written pleadings are not specific about the injury claimed to have been suffered by her on 11 July 2006. There is reference to her back being "vulnerable to further injury due to her pre-existing condition" [my emphasis]; and it is averred that the pursuer "suffered an injury to her lower back whilst engaged in manual handling AH" which might reasonably be understood as a "further injury". Elsewhere it is averred that the pursuer suffered "a soft tissue injury to her lower back" for which she "required lower back surgery and injections". As the case was presented to me in evidence and submissions, the injury claimed for is a new injury which was postulated to be the lesion subsequently found at a higher level of the spine.

[28] The lesion was described as a prolapsed intervertebral disc at the lumbar L2/3 level. The findings on MRI scan something over five months after the incident were of a small central disc prolapse impinging on the thecal sac with a suggestion of previous nuclear protrusion with sequestration. At the operation for "decompression" on 12 February 2007 a large annular tear was found in the L2/3 disc. Some small sequestrated disc fragments were removed. I accept, with the qualifications mentioned below, that if the pursuer experienced back symptoms on or about 11 July 2006, the symptoms were at least partly caused by some development or further development of the then unknown pathology in the already degenerated and progressively degenerating lumbar disc at L2/3 level. The state of the pursuer's disc was such that everyday events like straining at stool or picking up a pencil might have caused symptoms. The primary causation question is whether any development on or about 11 July 2006 was simply "one of those things" or was attributable to something that can sensibly be called trauma while manually handling the resident AH.

[29] In evidence, the pursuer's first description of her July 2006 symptoms was that at the start of the shift, from 08.00 to about 09.00, she found handling AH physically tiring for herself and her co-worker Jacqueline Chiplin. The pursuer did not think that she could "keep up that level of manual handling". The pursuer felt her back "stretched and pulled in all directions"; and her back "started to feel achy" and "tight". The pursuer said that she spoke to Jacqueline Chiplin, saying that "this is putting too much strain on us": but Jacqueline Chiplin told the pursuer that she, Ms Chiplin, was alright. When Jacqueline Chiplin gave evidence she confirmed that she did not at any time have difficulty in toileting and showering AH using the two-person, assisted transfer method.

[30] Shortly after the pursuer raised concerns on 11 July 2006 Colva Peterson, the ROSPA trainer, carried out a trial transfer of AH with the pursuer. Colva Peterson described the transfer in evidence as "a textbook transfer". The pursuer said in evidence that it was a better transfer than the transfers with Jacqueline Chiplin: but that it was "not by any means comfortable" for her; and that she told Ms Peterson that she, the pursuer, was not happy with the transfer. The pursuer said in evidence: "Colva did not feel the strain I was feeling." She subsequently told Janet Seery that when transferring AH she "felt a lot of weight on my side". When Angela Thomson was being pressed by pursuer's counsel in cross-examination to accept that AH was unsteady on her feet, she replied: "However unsteady she was, she was never a problem for me personally." In re-examination Ms Thomson confirmed her experience with AH, namely that AH had no problem weight bearing for the duration of individual toilet transfers. All this ties in with Jacqueline Chiplin's account that the pursuer was the only one of her colleagues at Nordalea who reported difficulty around AH.

[31] Indeed, on the evidence I was ultimately asked to consider the pursuer's experience with AH was unique. There was detailed information about the arrangements for handling AH over a more than five month period which included the hospital admission from 8 May to 3 July 2006, the period of residence at Nordalea from 3 July to 23 August 2006 and another hospital admission from 23 August to 18 October 2006. Nobody except the pursuer had problems toileting and showering AH using the assisted transfer method on what must have been hundreds if not thousands of occasions. Putting this fact together with other matters I think the likelihood is that what the pursuer experienced on 11 July 2006 were symptoms which may well have been connected to some extent with some further degeneration of her L2/3 disc but which had nothing specifically to do with the handling of AH; and that, as discussed in evidence by Mr Niall Craig FRCS (Ed), the pursuer's repeatedly stated perception of taking significant load, while her colleagues were untroubled, was due to the state of her back rather than to the fact that she was actually supporting AH's weight to any material extent. My finding is that AH did not fail to weight bear during the transfers that the pursuer found "difficult". Other important factors in making these findings are the expert evidence on the causes of disc pathology in general and the state of the pursuer's back in particular; the apparent difficulty on the pursuer's part in describing the mechanism of injury; and the equivocal nature of the pursuer's symptoms as reported by her to various people and as described by her in evidence.

[32] The medical opinion supporting a traumatic, patient-handling cause, insofar as otherwise reliable, depended on what I conclude was a misdescription of the event. The first account apparently given by the pursuer to her general practitioner, on 13 July 2006, was of pain "while supporting a client and twisting at the same time". The second account apparently given by the pursuer to her general practitioner, on 19 July 2006, involved "having to lift heavy patient with no hoist". The general practitioner's referral letter to the orthopaedic surgeon dated 22 December 2006 stated: "She says she was lifting a heavy patient about four or five months ago..." The orthopaedic admission note of 22 January 2007 stated that the pursuer "relates onset of symptoms to episode when trying to lift a heavy patient..." The treating surgeon Mr David Knight FRCS (Ed) proceeded on the basis that on 11 July 2006 the pursuer was "involved in heavy lifting duties". The account given to Mr Niall Craig FRCS (Ed) who prepared a medico-legal report on 20 September 2011 was that the pursuer "had to help lift [AH] from the wheelchair to the toilet and back..." Mr Craig described "repeated lifting" and gave it as his opinion that: "the lifting has caused the prolapse of a previously degenerate disc by propagating an annular tear causing the disc to 'slip'...". In oral evidence Mr Craig posited a lifting and twisting mechanism on the basis that the discs are less able to withstand "axial torque" than compression.

[33] If the proof has made one thing clear it is that there was no question of the pursuer having to "lift" AH. In oral evidence the pursuer repudiated the words "twisting" and "lifting". She said she would have used the words "pulling" and "supporting". She later said in evidence that she was "supporting and twisting". She then gave an explanation that she was "wrenched or twisted" as she and her colleague settled AH on the toilet and AH "overbalanced" backwards: but what she described and demonstrated was being pulled forward without twisting. The pursuer said, that "if I told the doctor I sustained injury lifting a heavy patient I would not have been telling the truth": she denied telling her general practitioner that she had been lifting AH. Mr Craig told me in evidence that "we are extremely dependent on what the pursuer tells us about what happened at the time of onset." That must be correct. I formed the view from the pursuer's demeanour and the content of her evidence that the pursuer's testimony could not be depended on where unsupported.

[34] A feature of the pursuer's case was that she did not appear to have the evidential support of her colleagues. She did not have the support of Jacqueline Chiplin, her colleague in the manoeuvres involving AH on 11 July 2006. Jacqueline Chiplin was on the pursuer's witness list. Counsel discussed whether Ms Chiplin would be called to give evidence for the pursuer and if so when she would be called. Counsel for the pursuer explained that he did not wish to call Ms Chiplin because she was "hostile". In her evidence the pursuer told me that she had a "strange relationship" with Jacqueline Chiplin; that Jacqueline Chiplin could flare up; and that Jacqueline Chiplin thought the pursuer was blaming her, something that caused problems in their relationship. Eventually, after waiting for five days, Ms Chiplin, who had travelled twice from Shetland, was interposed during the pursuer's case as a defenders' witness. Ms Chiplin struck me as being a perfectly straightforward witness.

[35] Heyddir Johnson, social care worker [SCW], was a potentially important witness for the pursuer because of the entry in the nursing log which bore to have been made by her on 4 July 2006, a week before the incident. The entry stated:

"... AH likes to manage as far as possible by herself. AH requires two SCWs for toileting & transfers. Even then its not very easy for staff, as she's quite unsteady & moves or overbalances a bit, requiring us to take her weight & some of the strain."

The document had a number of anomalous features which raised a question about the entry's authenticity. The pursuer stated that she had not read the entry "at the time", which could, I suppose, be consistent with the entry being a later addition. Angela Thomson, the key worker for AH, was not aware of the entry. The document was produced late, being tendered at the bar by pursuer's counsel on the first day of the proof. It was not agreed. After, it seemed to me, much to-ing and fro-ing in the background, it was announced that Heyddir Johnson would not be called to give evidence for the pursuer because, I was told, she was "hostile" and refused to give a statement. I decided to leave the terms of the entry out of account.

Events before 09.00 on 11 July 2006

[36] As the evidence emerged a key issue was whether, if the pursuer experienced symptoms at work, the symptoms were first experienced before or after she raised concerns about the arrangements for transferring AH. Mr Craig accepted from the pursuer's account to him during his medico-legal examination that the pursuer had injured her back at work on 11 July 2006. I understood Mr Craig to say in examination-in-chief that it was not possible to attribute the injury to a particular transfer; that the injury could be due to either an accumulation of stressful events or to significant overload on one occasion; and that, if the pursuer continued to support AH throughout the pursuer's shift on 11 July, there was likely to be more than minimal aggravation of her injury. In cross-examination the pursuer's contemporary description of acute symptoms apparently early in her shift was put to Mr Craig. "Acute" - the word used in the general practitioner's clinical note - was explained by Mr Craig to mean, medically, "of sudden onset". I understood Mr Craig's final position in re-examination to be, giving credit to the essentially uncontentious evidence about onset, that the symptoms coincided with the acute event early in the shift; that the die was then cast; and that while the symptoms might have got worse as the shift progressed he could not say that the condition was exacerbated by the continued manual handling of AH as described by the pursuer. I have reached the conclusion that any injury occurred early in the shift and, as will be explained, was not attributable to the pursuer's manager insisting that the pursuer should carry on working without using a lifting aid.

[37] On 12 July the pursuer telephoned Nordalea Care Centre to notify her sickness absence. The first documented account given by the pursuer was, on the face of it, in the Shetland Islands Council Personal Incident Notification Form, part 1, which she signed and submitted to her employers on 12 or 13 July 2006. The dubiety about the date arises because the form bears to have been signed by the pursuer on 12 July and refers to "medical treatment given", namely co-codamol, diclofenac and diazepam: but the general practitioner's clinical note records co-codamol, diclofenac and diazepam as having been prescribed on 13 July, the recorded date of the pursuer's first attendance at the doctor's after the alleged incident. The pursuer was confident that she had gone to the doctor before she submitted the form to her employers. This is consistent with Janet Seery's note: when the pursuer telephoned to report sick on 12 July the pursuer said she would be in touch again after she had been to the doctor.

[38] The entry dated 13 July 2006 in the GP clinical notes was made by Dr Naomi Reifenberg a part-time, associate practitioner who was relatively new to the practice. Dr Reifenberg did not give evidence. The sole principal of the practice was Dr Andrew Hamilton. He gave evidence by video link from Yam Island, Torres Strait, Queensland, Australia. (The Scottish Court Service Electronic Services Delivery Unit [ESDU] is to be complimented on the quality of the arrangements.) Dr Hamilton volunteered on behalf of Dr Reifenberg that "we got the date wrong" in the clinical notes. I think it more likely that the pursuer got the date wrong in the incident report. Dr Reifenberg referred to an accident two days previously and to symptoms experienced on the intervening day. In the Personal Incident Notification Form, part 1, the pursuer stated that she was due to be reviewed by the doctor on 18 July, which would have been six days after 12 July. She was in fact reviewed by Dr Hamilton on, according to his clinical note, 19 July 2006, which was six days after 13 July.

[39] The symptoms described by the pursuer to the general practitioner and in the Personal Incident Notification Form, part 1, are of interest. Dr Reifenberg noted among other things:

"... pain down back of both legs and across top of foot - shooting worse on movement. Both feet tingling - better than yesterday... knee + ankle reflexes absent L; minimally present R. Area of reduced sharp sensation (not absent) lateral L foot and medial R foot..."

The pursuer described the "precise injury/ condition" in the form which, I deduce, she filled in after going to the doctor as including: "Loss of sensation and reflexes in lower legs..." [my emphasis].

[40] The orthopaedic expert for the defenders was Professor David Rowley FRCS (Ed), FRCS (Glas), FRCS (Eng), formerly professor of trauma and orthopaedic surgery in the University of Dundee. Professor Rowley gave unchallenged and uncontradicted evidence to the effect that there were no focal neurological symptoms and, a corollary in this case, that the distribution of the neurological signs and symptoms was "non-anatomical". The professor was referring particularly in this context to the reported lower leg and foot findings. Professor Rowley also offered the opinion that the claimed amelioration of the pursuer's symptoms following chiropractic manipulation in July-September 2006 "was not supported by the evidence". I understood him to mean that, if the symptoms were due to the L2/3 disc prolapse later evidenced on MRI scanning and at operation, the pursuer could not have benefited from manipulation.

[41] Mr Craig agreed that the L2/3 lesion did not account for the below-the-knee symptoms. Interestingly Mr Craig reported that the pursuer's failure to derive symptomatic relief from a caudal epidural anaesthetic under the treating surgeon Mr Knight in 2006-2007 was highly suggestive of no nerve root involvement [my emphasis]. I think I must infer, from the terms of Mr Knight's reports to the general practitioner while he was treating the pursuer, that Mr Knight reached the same conclusion. He discussed matters with colleagues who reportedly felt as he did that "the mainstay of the treatment... would have to be weight loss". Mr Knight clearly tried to avoid operating. There is no note that he found any impingement on the nerve root at operation on 12 February 2007. He did make a point of recording that "despite careful exploration no large fragments were found" and that "the L3 nerve root was certainly free at the end of the procedure". Professor Rowley explained that Mr Knight was not confident that surgery would help - presumably on the view that surgery will not give benefit where there is no impingement. The professor said that it would be wrong to comment on the judgment of the spinal surgeon that surgery was indicated, from which I gathered that there was a question as to whether the surgery was necessary. I was offered no evidence that the pursuer benefited from the surgery in the way that might have been expected had there been impingement.

[42] Notwithstanding the otherwise apparently complex, global and non-anatomical nature (at least for L2/3) of the pursuer's symptomatology I am prepared to accept that severe muscular spasm, as noted on examination by Dr Reifenberg, was present on both sides of the spine at the first examination after the alleged incident. It is remarkable, given the patient's account of her symptomatology in Court, that the doctor did not record any complaint of back pain whatsoever when noting symptoms at the examination on 13 July 2006. After noting the symptoms Dr Reifenberg moved on to examine the patient's back and recorded her findings as: "Tender spot to L of midline about L4, Muscle spasm +++ each side." This leads me to think that what appears as an objective finding of muscle spasm was possibly no more than a record of the patient's declared response to palpation, that is tenderness rather than actual swollen muscles. In the Personal Incident Notification Form, part 1, the pursuer reported, in addition to the lower leg symptoms, "painful muscle spasm in lumber region" [my emphasis], which I take to be a symptom. On 19 July Dr Hamilton noted, apparently on the patient's account without examination: "Back pain easing slightly, but still very troublesome." Mr Knight noted "tenderness around the muscles on either side of the lumbar spine" when he examined the pursuer for the purpose of his medico-legal report without, apparently, finding spasm. I think that the reliability of Dr Reifenberg's finding, insofar as it might have purported to record an objective sign rather than a symptom, could have been questioned, but it was not. That is why I feel that I should accept it.

[43] The spasm was possibly - the note is ambiguous and was not clarified in evidence - centred at about L4 level, to the left. This was described by Professor Rowley as a "protective" muscle spasm by which I understood that the erector spinae muscles had swollen as if to splint an injury or potential injury site. The professor's view was that the muscle spasm might be consistent with the impending failure of the L2/3 disc and that most of the back pain experienced by the pursuer in the days following the claimed incident was attributable to muscle spasm. My own impression is that, if there were spasm, the reported settlement of symptoms might have been due to the resolution or partial resolution of the muscle spasm. The pursuer was assessed fit to return to work, though not to manual handling, for a period from mid-August 2006. Mr Craig was not asked about the muscle spasm.

[44] Against the background of non-anatomical distribution and an idiosyncratic response to therapies and interventions, the pursuer's description of the onset and development of her symptoms up to the time of her visit to the general practitioner was notably vague and challenged my comprehension. At one point she said that she became aware of symptoms the next morning. Then she said "sorry" and explained that it was late in the evening, with increasing severity the next morning (12 July). A repeated description was that she felt "physically strained" during the morning of 11 July. She also described a "huge onset of pain". She then said that she was "sore" by 11.00 (on 11 July) - "pulling, tight, throbbing"; and that when she went home at 15.00 she was in "quite a lot of pain". She also said that the pain was "not acute" (meaning "not severe") during the afternoon. At another point she said that she "was very sore" when she left the building. She thought her back was "pulled, stretched or strained", although she did not think it was "anything untoward". (I took this to mean that the pursuer recognised the symptoms and thought they were connected with her pre-existing problem). She said twice that she went three times in the afternoon to report "the injury" to Janet Seery. She wanted to tell Janet Seery that she was in pain. The pain was increasing and the pursuer was very uncomfortable. The pursuer also said, in cross-examination, that when she left work she did not think she was injured. The pursuer emphasised that she had no pain in her back "that morning" by which I think she meant before starting her shift. She said that when she got home her back was painful and she lay down with a hot water bottle. During the night when she turned over she got pain. The next day movements were painful. The pain was more "acute" (meaning "severe") than the day before. When pressed in cross-examination the pursuer said that she could not pin point the time of the injury; all that she felt was very strained and very sore; she was not in pain at the toileting and showering at 08.00; she couldn't say when the injury actually occurred. She tended at times to say that, if she were to "hazard a guess", she had hurt her back in the first transfer of AH after she, the pursuer, had expressed concerns to the manual handling trainer, Colva Peterson, signifying sometime after 09.00 on 11 July 2006. This of course would suit the pursuer's case.

[45] When did the pursuer first notice a supposed problem about AH's weight-bearing? The pursuer's first evidence in examination-in-chief was that she had noticed the problem when AH was showered that morning. Her evidence is possibly capable of being understood to mean that the whole process of toileting and showering first-thing had demonstrated a weight-bearing problem: but she did say quite clearly at one point that it was when AH was being showered that "I found she did not seem to know what was expected of her." In cross-examination the pursuer explained that in the shower, after toileting, AH "was struggling to get her balance, swaying from side to side". The pursuer denied that she had complained to Jacqueline Chiplin that her back was sore during the showering process. She did not remember "making pain noises". She told Ms Chiplin, she said, that the manoeuvre was putting a strain on her back. My attention was drawn to the fact that the pursuer's pleadings up to the amended record stage contained the following averments [8E]:

"Admitted that at about 8.00 am on 11 July [the pursuer] was assisting Jacqueline Chiplin with toileting and showering AH. Admitted that in the course of toileting and showering AH the pursuer advised Ms Chiplin that her back was sore." [my emphasis]

The record as further amended, on which the proof proceeded, contained the following account [8E-9A]:

Both versions were in response to the unchanged averment by the defenders that: "In the course of toileting and showering AH the pursuer advised Ms Chiplin that her back was sore." In oral evidence the pursuer said that she stuck by "strained" (as opposed to "sore" or "painful").

[46] The pursuer's own report in the Personal Incident Notification Form, part 1, is as follows:

"Date and Time [of incident] - Tues AM, 8 AM onwards 11.07.06... Brief description of incident and location - Client with altered judgement into capabilities and limitations stated that she could weight-bear. Did not do so on 3 occasions during the morning. No toileting sling available for hoist following difficult transfers."

Dr Reifenberg noted on 13 July:

"2/7 [two days] ago at work acute back pain onset while supporting a client and twisting at the same time..."

Dr Hamilton, who was interposed early in cross-examination of the pursuer, confirmed the meaning of "acute onset". He understood the pursuer to have attributed the onset to a particular event.

[47] At the close of the pursuer's cross-examination I sought clarification. The pursuer told me that the sudden onset of pain was during the third transfer of AH. She had earlier explained, I thought, that the third toilet transfer, that is the third transfer from the patient's room to the toilet and back again, was when the problem became apparent: but she had also said that the third transfer was the transfer of AH from the toilet to the shower in the en suite shower room. The pursuer said that AH took her shower between 08.00 and 08.15. The routine as I understood it was that the resident would be raised from bed, toileted, showered and then dressed and transferred to her wheelchair. By "transfer" I ultimately understood the pursuer to mean an assisted, standing transfer in one direction, as it were, the first transfer being from mobile shower chair to toilet, the second transfer being from toilet to shower chair and the third transfer being from the shower chair to standing position in the shower and, possibly, without changing location, back to sitting on the shower chair. Jacqueline Chiplin seemed to recollect that the transfers from bed to shower chair or wheelchair involved somehow swivelling the resident on the bed without requiring her to move or turn on her own feet. She spoke as if she alone assisted AH in transferring from bed to shower chair that morning. It was certainly something the pursuer did not talk about.

[48] Jacqueline Chiplin's evidence tended to confirm that the pursuer encountered, or perceived or indicated that she had encountered, a problem early in the shift. Ms Chiplin's recollection was that the pursuer made gestures and noises indicating a problem with her back after AH was first toileted on the day shift, at about 08.15 on 11 July. Janet Seery's recollection was that later in the morning, about 11.00, the pursuer told her that, when AH was showered earlier, AH had lost power in her legs momentarily and that the pursuer and Jacqueline Chiplin had had to support AH. In her report on the incident dated 20 July 2006 Janet Seery wrote:

"[The pursuer] said that showering [AH] that morning had been problematic. Although the information received in the [Single Shared Assessment] suggested that the client had insight into her ability to weight bear, when she stood in the shower that morning she had not been able to sustain this and she and a colleague had had to support her. Although the client used a shower chair, she liked to stand at some stage to ensure that her back was properly cleaned. Similarly she wanted to stand to clean herself at the toilet but had been unable to weight bear..."

[49] Circumstantial details support the idea that the issue for the pursuer at that time, whatever it was precisely, was something to do with AH's weight-bearing or lack of weight-bearing or perceived lack of weight-bearing in the shower. When Janet Seery came on shift she saw that the pursuer's clothing was wet. The pursuer told Janet Seery that she, the pursuer, "had been assisting [AH] in the shower and laughed and said that she had got very wet [showering AH]". Janet Seery thought this encounter with the pursuer had taken place before 09.00. She put the account in her report, the Personal Incident Notification Form, part 2, dated 20 July 2006. In evidence, the pursuer agreed with this bit of Janet Seery's report. Ms Seery's report also records that, later in the morning after the pursuer had expressed concerns about the AH's ability to weight bear, Ms Seery and Colva Peterson went to discuss transfers with AH. The conclusion was: "The client accepted that we could no longer support her to stand in the shower."

[50] Colva Peterson's recollection was that Janet Seery and the pursuer came to see her shortly after 09.00 and told her that the pursuer had hurt her back in the shower or that there had been a problem with AH's weight-bearing in the shower. Colva Peterson's evidence was clear: the pursuer had mentioned an issue about AH's weight-bearing and had indicated by words or gestures that she, the pursuer, had "felt" her back ― a "twinge" was the word Ms Peterson used more than once. At one point Colva Peterson equivocated on the question of whether the pursuer actually said that she, the pursuer, had felt her back or whether the pursuer was simply touching or holding her back to illustrate that her back had been under strain while showering AH. This encounter happened before Ms Peterson and the pursuer carried out the trial transfer of AH. The only issue raised and the only incident mentioned by the pursuer, according to Colva Peterson, was to do with the shower. She was emphatic on this point. Janet Seery was adamant that the pursuer did not tell her that she, the pursuer, had hurt herself. I believed Janet Seery. On the other hand I also believed Colva Peterson who had a clear impression that the pursuer at least indicated by gestures to her that the pursuer had felt her back strained earlier.

[51] Both Janet Seery and Colva Peterson impressed me as individuals who would not have permitted the pursuer to engage in assisted toileting of AH if there were any concern at all that toileting transfers were problematic for her. Colva Peterson made the point twice that she would not have undertaken a trial toileting transfer of AH with the pursuer if there had been any concerns that the exercise might hurt the pursuer's back. If there had been concerns, she could have carried out the trial with the other senior on duty, Jacqueline Chiplin. Equally of course the pursuer agreed to participate in the toileting trial: I cannot believe that she would have done so had she really thought that the exercise would cause pain or risk injuring her. She was someone who admittedly knew to be careful with her back. The fact that Janet Seery and Colva Peterson did not remove the pursuer from toileting duties reinforces my impression that the immediate issue was understood by all concerned on the morning of 11 July to be about showering, not about toileting. The next shower for AH would have been the following day, 12 July, between 08.00 and 09.00. That would not have been problematic either, because the pursuer was not due to come on duty on 12 July until 12.00, three hours at least after the showering had finished.

[52] There is an undated addition to the "Action" column of the care plan, "Action Plan" section, under the heading "Daily Routine". The addition is starred for insertion after the words "would like a shower daily". It states:

"Transfer AH into the shower chair from her bed so that she can be taken through to the en-suite in it. AH to be encouraged to remain seated while showering. AH can manage to wash front part herself."

The first sentence is in an unknown hand, possibly that of Janet Seery. The rest of the addition was written by Angela Thomson. Angela Thomson was the key worker for AH. Ms Thomson was on duty on 12 July. Her care log entry for the morning shift on that day includes the following:

"AH got offered a bed bath or shower or a bath this morning. Explained to AH we could not take the risk of her standing in the shower. AH still insisted she would prefer a shower. Managed with shower chair to get AH washed satisfactorily..."

The only changes to AH's first "Client Risk Assessment", as I interpret it, after 11 July are two additions, "risk of fall in shower" and "encouraged to sit on shower chair to get washed and avoid standing". I infer that these additions were made in connection with the issue of 11 July and the ablutions on 12 July. The new "Manual Handling Risk Assessment" of 20 July states: "AH does not stand in the shower as she cannot reliably weight bear." There was no criticism by the pursuer of this method of showering AH which, I find, was introduced on 12 July following the expression of concern by the pursuer.

[53] The conclusion I reach, having reviewed all the evidence, some of which I have highlighted above, is that the pursuer felt her back strained but not at that time clearly or continuously painful during the combined toileting and showering exercise between 08.00 and 09.00 on 11 July, particularly in the shower. This was the "acute back pain onset while supporting a client" that was noted by Dr Reifenberg on the pursuer's account of matters; and, as the pursuer herself clearly implied by what she wrote in the Personal Incident Notification Form, part 1, within two days of the event, the question of the availability of toileting slings did not arise until after these "difficult transfers". The sequence of events as the pursuer apparently recounted it to Mr Knight FRCS (Ed) was completely the other way round and, I am bound to say, incorrect:

"However, despite searching for [the toileting sling] none appeared to be available and so the patient was assisted to the toilet several times by Mrs Elphinstone, on at least three occasions, and during the day Mrs Elphinstone was suffering increasingly from back pain. The sequence of events was noted in the Accident Record..."

[54] The pursuer's primary case is that she should never have been required to "manually handle" AH on 11 July 2006 and that she would not have been required to do so had a compliant manual handling risk assessment been carried out. In what follows it will be seen that I reject this case. Most importantly I reject this case insofar as it relates to the events early in the shift, before 09.00, when I find, in Mr Craig's words, "the die was cast".

Reasonable practicability and patient-handling

[55] The legal principles applicable to manual handling cases generally are helpfully reviewed in Strange v Wincanton Logistics Plc [2011] CSIH 65A, referred to by both counsel. The most informative decision cited to me in relation to this kind of case is A & Ors, R (on the application of) v East Sussex Council & Anr [2003] EWHC 167 (Admin), a decision of Munby J, as he then was, on a judicial review challenge to the lawfulness of the respondent council's policy that council care staff should not lift the applicants manually. (The family carers did not want the disabled applicants to be lifted by local authority carers using hoists and slings.) I take from the East Sussex Council case that decisions about the "practicability" of risk reduction in what might be called "patient-handling" cases have to take account of the rights, best interests and wishes of patients; and that risk assessment in clinical and care settings is very much a balancing exercise where there may be no such thing as a right and a wrong answer. The East Sussex Council case was, very properly if I may say so, brought to my attention by Mr Pilkington, counsel for the pursuer. Mr Pilkington also put before me the latest and incident-current Health & Safety Executive guidance. I think it is fair to say that the guidance recognises patient handling as a special case. The guidance states: "Risk assessment for moving/handling people is a complex task requiring consideration of the medical condition of the patient and the human rights of those involved"; and it expressly excludes patient handling from the application of the manual handling assessment chart [MAC] [Manual Handling: Guidance on Regulations, HSE Books (London, 2004), § 54; Appendix 5, § 5]. There is possibly a degree of artificiality in applying the full regulatory analysis in patient-handling cases.

[56] The "balancing" approach was the approach advocated by all witnesses on both sides who spoke to standard practice. The pursuer agreed in cross-examination that during the admission that started on 3 July 2006, care staff at Nordalea encouraged AH to maintain her independence; and that maintaining resident dignity was a large part of what care staff did at Nordalea. She agreed that AH was a particularly determined lady trying to maintain her own mobility and that it is a big move to take away someone's independence. I noted the pursuer as saying that AH had previously been offered hoisting but was not comfortable with it. During the discussions about AH's manual handling requirements after 09.00 on 11 July 2006, Janet Seery reminded the pursuer that Nordalea was trying to preserve AH's independence. In the same context Colva Peterson was in favour of carrying on with assisted standing transfers "to preserve the lady's mobility". This was the pursuer's evidence.

[57] Professor Patrick Carr, who gave evidence as a patient handling expert for the pursuer, said that "one" always tries to maintain independence; that this poses problems for carers in manual handling. In a patient with declining mobility the question is: at what point should the switch be made away from handling without lifting aids? It was his view that by 11 July 2006 the "tipping point" had been reached as between preserving independence and staff safety. The professor's way of putting matters confirmed that proper practice required these factors to be balanced and required a judgement to be made.

[58] Angela Thomson, the "key worker" for AH, told me that AH was a very quiet, very private person who tried to be as independent as she could. Janet Seery explained that preserving independence is important because residents who stop using their skills very quickly become dependent. Preserving independence is important from the point of view of psychological as well as physical well-being. Patient dignity is a factor that has to be borne in mind: being hoisted in a sling "feels very strange and out of control"; and some residents find using the hoist demeaning. It is not good practice to hoist residents unnecessarily. A substantial amount of patient-handling, though not involving weight-bearing by carers, may be involved in placing and removing slings. Cost is not a factor in the balancing exercise because the equipment is or should be available and there is no material time difference between hoisting and transferring without a mechanical aid. AH was someone who was determined to preserve as much independence as she could for as long as she was able. Her independence of mind is well-documented:

"AH has consistently said she will not go to any care centre for anything other than interim care while her own house on Yell is refurbished... Her husband is supporting her choice... they recognise the immensely high/ inevitability of falls if AH is on her own, but still want to go ahead with the discharge..."

This was written about a week before AH was discharged from Gilbert Bain Hospital in Lerwick to the Nordalea Care Centre as an interim measure.

[59] The evidence instructs me that deciding how patients and residents should be handled is a matter of judgement and, on that basis, I half expected that a clinical-negligence type of test might be proposed - but it wasn't. It is for the court to assess whether, to put it shortly, the defenders have shown that it was not reasonably practicable, taking account of AH's rights, interests and wishes, to avoid manual handling when transferring her and whether the risk was reduced to the lowest level reasonably practicable. My judgment is that the defenders have shown - on the information that was or ought to have been available at the start of the pursuer's shift on 11 July 2006 - that it was not reasonably practicable at that point in time to avoid manual handling and that the risk was reduced to the lowest level reasonably practicable.

[60] The precise duty in terms of regulation 4(1)(a) is not to avoid manual handling: the duty is to avoid manual handling operations which involve a risk of employees being injured. Parties are bound by their agreement to accept that there was a risk of injury. Their joint minute of admissions provides:

"... the parties have agreed as follows... (10) that the toileting assistance provided by the pursuer and fellow care worker employee Jacqueline Chiplin of resident 'AH' within Nordalea Care Centre, Shetland on 11^th July 2006 was a manual handling operation involving a risk of injury within the meaning of the Manual Handling Operations 1992 (as amended)."

The evidence leaves the terms of the admission open to a degree of interpretation. I take "toileting assistance" to include showering; the question of avoidability or otherwise is kept open; and, in the event that I find manual handling to have been unavoidable, the risk falls to be quantified for regulation 4(1)(b)(ii) purposes having regard to the measures which were actually in place. As regards the judgement element implicit in the question of avoidability, I have to give some weight to the fact that AH was repeatedly assessed by the care workers, nurses, occupational therapists and physiotherapists who knew and looked after her. She was continually assessed as suitable for assisted standing and even walking transfers. For example, at the Gilbert Bain Hospital, during the admission prior to the transfer to Nordalea, AH was assessed on 15 May, 26 May, 2 June, 9 June, 16 June and 25 June 2006 and on all occasions assessed as suitable for assisted transfers. AH was assessed as requiring to be hoisted by all care workers on all occasions, as I understand it, only after the incident involving the pursuer was reported, and then only for about a week.

[61] On 23 August 2006, six weeks after the pursuer's incident and after a stay of seven weeks at Nordalea, AH was re-admitted to Gilbert Bain Hospital. The Nordalea discharge summary stated: "Can weight bear with two walking. No hoist or manual handling belt". This document is important because it records weight-bearing, because it clearly signals a wholesale retreat from the mandatory hoisting and handling-belt regime put in place after the pursuer's incident and because it was completed and signed by the pursuer herself [6/10/Z14-15]. There was a passing reference in the evidence to a manual handling risk assessment carried out at Gilbert Bain Hospital on the day of admission, 23 August 2006. The assessment stated: "Transfers with 2 manages a few steps." A section of this agreed document that was not, according to my notes, put for comment in oral evidence states: "Occasionally requires hoist." The actual experience in hospital seems to have been that no hoisting was required. Three weeks later, on 12 September 2006, a case conference was held to discuss options for AH's discharge. One of the options was re-admission to Nordalea. The pursuer was present as the Nordalea representative and contributed to the discussion. The handling assessment by hospital nursing staff was that:

"AH required two carers to help her walk through to the toilet. She rose to the toilet usually 2 or 3 times a night. She did not require hoisting..."

The pursuer is not recorded as having raised concerns about handling issues. It might be argued that if the pursuer were not personally involved in handling she had no interest to question the method proposed: but it was part of the pursuer's case in evidence that not using a hoist constituted a risk not just for care staff but for AH as well, so that I should have expected an intervention by her if she really thought that what was being proposed put AH at risk.

[62] As stated above there were hundreds if not thousands of incident-free transfers of AH from May to October 2006. In the absence of convincing evidence to the contrary I would have to conclude that the defenders have established their case, namely that it was not reasonably practicable to avoid manual handling of AH; that the admitted risk of injury was reduced to the lowest level reasonably practicable by the two-person, assisted transfer method; and that the actual risk was as slight as it could be without being negligible. Was there convincing contrary evidence? I do not think so, certainly not factual evidence. Opinion evidence that was no doubt intended to persuade me that AH should have been hoisted was adduced by the pursuer from the general practitioner Dr Andrew Hamilton and from the lifting expert Professor Patrick Carr.

The opinion evidence

[63] I have no hesitation in rejecting Dr Hamilton's evidence for the reason that there are unanswered questions about the reliability of his recollection and because he gave the appearance of lacking objectivity. Dr Hamilton (54) was the sole principal of the general medical practice on the island of Unst: he knew the pursuer, who was his patient; and he knew the Nordalea Care Centre because many if not all of the residents were registered as his patients. His recollection was that AH was registered as his patient during her stay beginning on 3 July 2006 and this is confirmed by an entry in the daily care log on 11 July: but Dr Hamilton thought he had no reason to attend her during that stay. He thought that AH had been admitted to Nordalea on an occasional basis previously for respite, to allow her family carers a break, and that this had happened at least twice and possibly more often. He had seen AH on previous occasions; he had never seen AH out of bed or standing; and his impression was that AH was suffering quite severely. (Curiously, in the light of all that follows, the pursuer's evidence was that Dr Hamilton knew AH as a patient.)

[64] Dr Hamilton clearly remembered, he said, a telephone call with the pursuer on 3 July 2006, the day of admission, when the pursuer raised with him her concerns about the ability of Nordalea staff to look after AH. The pursuer told him that she was particularly worried because the hoist had been removed for servicing. Dr Hamilton's recollection was that the pursuer told him that she had raised the issue of hoisting before AH arrived and that management was unsympathetic. In cross-examination Dr Hamilton said that he clearly recollected the conversation. It took place on the afternoon of the day that AH arrived at Nordalea, in the car park. He learned that AH was coming back to Nordalea for a period of time and the pursuer was very concerned because the hoist was away and had not been replaced. The concerns that the pursuer had expressed to management had been rejected. The pursuer was working that day. She was certainly there, according to Dr Hamilton's recollection. Dr Hamilton could recall AH being at Nordalea once before, probably a few months before, during the respite admission prior to 3 July 2006. The strong impression Dr Hamilton had gained during the previous admission was that AH was not capable of weight bearing or had great difficulty in doing so. He had not examined AH. He had seen her lying in bed. AH appeared to him to have had great difficulty in moving.

[65] Dr Hamilton's impression was that AH's condition predisposed AH to fall and that it would have been "cavalier and irresponsible" not to have lifting aids available for transferring AH. He envisaged that, when AH was in Gilbert Bain Hospital, she would have been transferred for toileting and showers using a hoist. He would have thought that a hoist was essential. If an appropriate assessment had been carried out, AH would have been hoisted at Nordalea too, according to Dr Hamilton. He would disagree with assessments which stated that AH did not require to be hoisted. The doctor conceded that he had never been involved in manual handling assessments; that he had "little knowledge of that sort of thing"; and that he had no experience or qualifications in relation to manual handling. Dr Hamilton's note of the pursuer's surgery visit on 19 July 2006 is in the following terms:

"Back pain easing slightly, but still very troublesome. Work related injury - having to lift a heavy patient with no hoist - Hoist is away for servicing at present! Inform HSE. Pain centred round L sacro-iliac joint. Manipulated to good effect - still sore but got a definite "pop" from joint, which may help... for repeat manipulation as needed..."

In cross-examination Dr Hamilton explained that it was his suggestion that the pursuer should inform the Health & Safety Executive [HSE] because of the lack of proper equipment. He had put an exclamation mark in the note because the hoist was away for repair and had not been replaced. He felt it was within the remit of the HSE to "take sanctions" against the employers.

[66] The problem with Dr Hamilton's factual evidence is that it was not part of the pursuer's case, was contradicted by other witnesses including the pursuer and was barely relied on in submissions by pursuer's counsel. Part of the mystery is that the pursuer's absence record contradicts her evidence that she was off work on 3 September 2006. I cannot say that Dr Hamilton's memory of a discussion with the pursuer about AH on 3 September 2006 was faulty: but the pursuer's case in evidence was that she had no knowledge of AH before 10 or 11 July 2006. Janet Seery was reasonably clear that AH had never previously stayed at Nordalea. The medical records of AH, so far as produced, show no sign of her having been admitted to Nordalea in the almost twelve months prior to 3 July 2006. AH's home address was on the island of Fetlar and she and her husband had another house on the island of Yell. She was registered with a general medical practitioner on Fetlar. It is not clear why she would have had respite care at Nordalea rather than at her local care centre at Isleshaven on Yell. Her general practitioner's referral letter to the consultant at Gilbert Bain Hospital dated 3 May 2006 implies that AH had been admitted to what is called "the local care centre" for one week's period of respite since the end of 2005. At that stage AH was not bed-bound. She was mobilising with a zimmer frame and did so either unaided or with the supervision of only one person. If Dr Hamilton's opinion about AH's manual handling requirements were based on his recollection of a different patient or of AH at a later date, it has no value. He clearly did not understand that Gilbert Bain Hospital did not assess AH as requiring to be hoisted while a patient there in 2006, both before and after the stay at Nordalea. He was in any event too ready to volunteer his opinion on a matter, namely the assessment of AH's manual handling requirements, which was outwith his own expertise; and - proceeding, as I find, on a misunderstanding to the effect that the pursuer had sustained injury "having to lift a heavy patient" -he strayed into an advocacy role. Dr Hamilton denied that he had refused to give a statement to the defenders' lawyers. His excuse or explanation was that the statement request took two to three weeks to reach him and that he did not have an internet connection until about three weeks before he was due to give evidence.

[67] Unlike Dr Hamilton, Professor Patrick Carr RMN, RGN, BA, PhD, RNT etc (74), was apparently qualified to give a technical opinion on patient handling. He had worked as a nurse for 20 years to 1975 with, he told me, equal experience in general and psychiatric nursing, although his curriculum vitae emphasises psychiatric nursing. In 1972 he was in charge of a neurological ward at Addenbrookes Hospital. The patients' disorders included Parkinson's disease, multiple sclerosis and motor neurone disease. For ten years to 1986 he was head of nursing studies at Manchester Polytechnic. Since 1979 he has been "continuously involved in" the management of care homes often, I gathered, as a trouble-shooter. He has twice been appointed by the Registered Homes Tribunal to take over the management of troubled registered homes. From 1986 to 1994 he was chief executive of the Registered Nursing Home Association, a trade body. He edited, with Sue Benson, The Care Assistant's Guide to working with Elderly Mentally Infirm People (Hawker, 1991). He has a law degree (unspecified). He has been preparing expert witness reports since 1986. He was a founding member of the Society of Expert Witnesses and a founding member of the Expert Witness Institute. Professor Carr produced a report in this case.

[68] Notwithstanding his experience Professor Carr committed what for an expert is the cardinal error of offering a judgment on the issue, or if not the precise issue, an issue, reserved for the determination of the court. The conclusion section of his report states:

"Based on the evidence which I have to hand, and given Shetland Islands Council's failings as set out above, I have no hesitation in coming to the view that, on the balance of probabilities, these represented a dereliction of a duty of care to their employee [the pursuer]... as a direct result of which she suffered loss, injury and damage as set out in statement 5 of the Summons."

The "evidence" which Professor Carr's report narrates that he had to hand consisted of (1) "the summons" - the report also quotes from the defences, answer 4, but this might have been lifted from his letter of instruction, (2) the medical report by Mr David Knight dated 17 April 2009, (3) the accident report (Personal Incident Notification Form, part 1, presumably) dated 13 [sic] July 2006 and (4) the "Log Sheet/ Daily Recording", 4 pages, in relation to AH. (More than four pages of the last-mentioned document were put in evidence and Professor Carr was uncertain as to which pages he had for his report, although his report does quote entries for 11, 12, 15 and 18 July 2006.) When writing his report Professor Carr had no information "in regard to the modus operandi used by the Pursuer and her colleague Jacqueline Colvin [sic]". The professor heard a small part of the pursuer's actual evidence in Court. He did not hear any other evidence. The report states that Professor Carr did not have the Nordalea manual handling risk assessment. He did not have the care plan either. A selection of documents was put to the witness for his comments in examination-in-chief including the manual handling risk assessments dated 3 July and 20 July 2006, the care plan, excerpts from the daily care log and half a dozen entries in the medical records of AH from October 2005 to June 2006. This was effectively leading the witness by using the documents to prompt him. He said that he had not been through AH's medical records; that he had not seen them at all until the day before; and that it might have been helpful to have seen them earlier. (Both sides used the technique of leading with selected documents: the danger was illustrated in the cross-examination of Professor Carr when the witness disagreed that AH's disorder had, by July 2006, been diagnosed as "supranuclear palsy": he insisted that the diagnosis was Parkinson's disease; and he said that he had never come across supranuclear palsy.)

[69] At the close of his evidence in chief Professor Carr adopted his report.

The thrust of Professor Carr's report is that the pursuer's employers should not have instructed the pursuer to continue carrying out manual handling transfers without the aid of a hoist once the pursuer had raised concerns. On the account of events that I have accepted above, the injury occurred before the pursuer raised concerns and, to that extent, Professor Carr's evidence is beside the point. In oral evidence the professor developed another theme namely that the manual handling risk assessment "should have" specified the use of a hoist by, at latest, the start of the pursuer's shift on 11 July 2006. The professor's evidence offered some insight into the challenges that neurological patients present for carers but, beyond that, I am not convinced that it had value. There is a general question as to the assistance that the court can derive from expert opinion in a case of this sort where it is for the court to make the determination of reasonable practicability and the issue, as defined by the professor himself, is substantially about the judgements that care staff on the spot have to make. As the witness said: "The most important thing is for carers is to assess the patient at the time of transfer: there is no one way to transfer."

[70] Professor Carr made his assessment on the documents. His assessment was that AH could not weight bear or was at clear risk of not weight bearing while being transferred. He drew this conclusion from two main sources, namely (1) the selection of documents from AH's medical records that was put to him in examination-in-chief and (2) the record of events at Nordalea in AH's daily care log on 11 July 2006 and for the few days following.

[71] The selection of medical records presented a picture of the risk of falls when AH had tried to manage at home before her admission to hospital on 8 May 2006 and the difficulties that would face her if she were to return home from hospital rather than to a residential care setting [GP referral letters dated 15 February, 3 May 2006; report by senior house officer to GP dated 5 May 2006; occupational therapy home assessments dated 28 October 2005 and 7 June 2006 - the questioner mixed up the home assessment reports, putting the conclusion of the earlier report to the witness as the conclusion of the later report]. These records were not of course available to the defenders and it was not suggested that they knew or ought to have known of their contents. In any event, it became clear from the records relating to the hospital admissions of 8 May and 23 August 2006 that were subsequently put in evidence that the professor had not compared like with like.

[72] Up to her hospital admission for assessment on 8 May 2006 AH had mobilised, or tried to mobilise, independently in the two storey-house on Fetlar, latterly with a zimmer frame. That house had a spiral staircase. She had fallen repeatedly and had suffered a number of injuries. During and after the hospital admission starting on 8 May 2006 AH tended to mobilise using a wheelchair; she was discouraged from walking unaided, for example from the bedroom to the toilet or shower; and when using the wheelchair she tended to weight bear only for short, assisted transfers. Janet Seery made the distinction: it was quite common for residents to be admitted with a history of falls at home; and if she had known of the history of falls at home it would have made no difference to the assessment at Nordalea (which recorded a high risk of falls).

[73] Ms Seery referred to the physiotherapy discharge note of 3 July 2006, the day AH was admitted to Nordalea: "She is at risk of falling if attempting to walk or transfer unaided" [my emphasis]. Ms Seery said that the hospital physiotherapist was specific about AH's handling needs and that the physiotherapist was in the best position to know. It became apparent, from the records that Ms Seery was asked to look at, that the situation had evolved during the hospital admission and that for at least part of that time AH was assisted by one person only. It was also apparent that, at least on occasions, AH walked to the toilet with two persons assisting, even after her stay at Nordalea. I was offered no evidence - apart from the pursuer's evidence and the contested entry in the daily care log purporting to have been made by Heyddir Johnson - that AH had fallen or caused difficulty for the carers and nurses who assisted her transfers at Nordalea or in hospital. When the minute of the Gilbert Bain Hospital case conference of 12 September 2006, to the effect "no hoist required", was put to Professor Carr, all he could say was that he could not agree with it. In saying that, Professor Carr rejected the assessment of the nurses and therapists who by that stage had looked after AH with the benefit of specialist medical input for a total of almost three months.

The risk assessments and the care plan

[74] Professor Carr criticised the Nordalea manual handling risk assessment current, as he understood it, at the time of the pursuer's incident on the ground that it did not have a section containing information gleaned from relatives and previous carers. He stated that "they" had "telescoped two documents into one", the "risk assessment" and the "manual handling risk assessment". The professor was mistaken on this point: there were two kinds of risk assessment at Nordalea, the "Client Risk Assessment" and the "Manual Handling Risk Assessment"; and the risk assessment documentation as a whole did contain the information that the professor thought was missing. The risk assessments were kept in the care plan file.

[75] The care plan for AH was initiated by her key worker Angela Thomson, on 4 July 2006, the day after AH's admission and backdated to 3 July, the day of admission. Section 3 of the care plan, completed in Ms Thomson's handwriting, contains the "Relevant Medical History" box. It is clearly filled in: "AH has progressive supranuclear palsy...". Section 3 also contains the "Short Term Care Plan Guide" with a dozen boxes. The boxes relevant to the present inquiry are "Mobilising", "Risk Taking and Restraint", "Use of Toilet" and "Personal Hygiene". These boxes were completed by Ms Thomson as follows:

"... needs wheelchair to mobilise, which she can self propel at times... is at high risk of falls... has agreed 2 members of staff assist at all transfers... needs 2 staff for transfer from wheelchair to toilet... likes to clean herself whenever possible... prefers a shower daily needs assistance of 2 staff... needs assistance to dress."

[76] Section 6 of the care plan contains the "Action Plan - Residential" which Ms Thomson and other, unidentified carers completed under the following headings, namely "Daily Routine", "Night Routine", "Eating Routine", "Toileting", "Personal Hygiene", "Mobility and [illegible]", "Meals". The action plan evolved during the period of residence. Not all entries are dated and not all the dates can be read (because of poor photocopying and punch holes). The legible dates are 3 July, 9 July (interpreted by the pursuer in evidence as 7 July), 21 July, 2 August. Of the entries apparently made by Ms Thomson before 11 July the relevant ones are:

"... staff to encourage AH to remain as independent as possible... needs 2 carers for transfer from wheelchair to toilet... likes to be as independent as possible, likes to clean herself after using toilet... likes to wash her hands in the sink after toileting... prefers a shower and would like one daily... needs 2 carers to transfer from bed to shower chair... likes to remain as independent as possible and can manage top half herself... likes to stand and hold on to shower rail with assistance of 2 carers to get bottom half washed... has pulmonary [sic] supranuclear palsy which is a degenerative disease which causes lack of balance and unexpected falls... to use lap strap in wheel chair at all times..."

(There is also an addition by insertion into the "Daily Routine" section dated 3 July made, I deduce, on 11-12 July as described above.) The care plan file, as produced, also contains the "Client Risk Assessment", a typewritten document bearing to have been completed on 3 July 2006 with two handwritten additions by Angela Thomson and signed by Angela Thomson [6/5/29-30].

[77] The relevant entries in the client risk assessment [handwritten additions in italics] are:

"1. Problems identified: High risk of falls... altered judgement in her own capabilities... risk of falls in shower; 2. Information from other agencies..: Information from Gilbert Bain on discharge: AH spends her time in a wheelchair which she 'pads' along short distances. She has been in danger of falls when trying to transfer herself from other chairs. She needs two to transfer from chairs, toilet, chair bed, etc. She has had incresing [sic] difficulty this week with eating, both in taking food to mouth and in chewing and swallowing... From 01/07/06 her legs where [sic] noticed to swell as the day progressed, elevated on stool; 3. Information from client/ relative/ carer: On interview with AH's husband and daughter, her husband [redacted] stated AH's balance had deteriorated. She was prone to falling in any direction of [sic] not well supported; Action proposed: AH is supported by two carers at all transfers. AH wears lapstrap at all times... encouraged to sit on shower chair to get washed and avoid standing."

In the absence of clear instruction to the contrary from the witnesses I feel entitled to deduce that all of the information in this risk assessment except the handwritten additions was available to the pursuer at the start of her shift on 11 July 2006. The references to "this week", "last week" and "from 01/07/06" date the information; and the phrase "altered judgement of her own capabilities" is similar to the phrase "altered judgement into capabilities and limitations" used by the pursuer in her Personal Incident Notification Form, part 1, submitted on 13 July 2006. I accept Colva Peterson's evidence that on the morning of 11 July the pursuer knew - the pursuer said from information supplied by the hospital - that AH had an unrealistic view of her capabilities: the pursuer "was the one who talked most about it" according to Ms Peterson.

[78] For reasons not explained the documents lodged on behalf of the pursuer following recovery from the defenders did not include the "Manual Handling Risk Assessment". A copy was produced by the defenders [7/1]. This is a pro forma with tick boxes and text boxes completed in typescript. The tick boxes are filled in by marking "X" rather than by ticking. The relevant contents are as follows:

"Date of Assessment: 03/07/2006 - 1. General Information - Risk of falls High X - Physical contstraints, e.g. disability, weakness, pain. Neurological Disorder leading to balance problems and inability to weight bear without two carers. Uses wheelchair with lapstrap... Difficulties - comprehension, behaviour, co-operation Chooses to be as independent as possible. Expressive speech is quiet and at times in-audible. Mood is low. - 2. Mobility - Walking No Walking X - Assistance with 2 X - Distance walked/ Additional Information. Can stand with help of two carers. Limited movement in her lower legs, unable to walk. Movement In Chair X - Additional Information. Limited to upper body movement only in arms. Prefers to sit on white cushion on wheelchair. Move up/down bed - Additional Information. With assistance of two carers. Sit Up Over Side of Bed - Additional Information. With assistance of two carers. Requires constant support. Move on/off Bed Pan - Additional Information Slipper Bedpan Transfer to/from Bed - Staffing Constraints / Client Needs Requires the support of two carers at all times. Transfers: Chair, wheelchair, shower chair, toilet, commode. - Additional Information Requires the support of two carers at all times. Assistance: People - 2 X - Into Bath or Shower Shower Chair X - Additional Information Requires the support of two carers at all times..."

None of the boxes for hoists and slings is ticked. There is no "Assessor's Signature" in the space provided.

[79] Angela Thomson was not sure that she was responsible for the typewritten manual handling risk assessment. She was not at work on 3 July 2006. She thought one of the senior social care workers had typed it up. She stated that there would have been a report from Gilbert Bain Hospital. She thought she would have had the Shetland Welfare Trust pro forma admission/ discharge summary for hospital use [6/10/X93-94]. It was likely that she had the Gilbert Bain Hospital manual handling risk assessment [6/10/X50-51]. She thought she had the Shetland Health Board discharge summary dated 3 July 2006 but she could not say for sure [6/10/X59-63]. Janet Seery thought that Ms Thomson would have had available something called the "Single Shared Assessment" [SSA] apparently containing input from all health and social care specialties involved with the patient or resident: but there was no evidence in the hospital records or the Nordalea records produced in Court that such a document existed for AH. It may be that SSAs were used for admissions to Nordalea from the community. Ms Seery said it was unusual for patients to be admitted direct from hospital.

[80] Professor Carr stated that when carers come on duty they should receive a "hand-over" or read the nursing log and "the documents". The pursuer and Colva Peterson confirmed that "the manual handling risk assessment" was kept in the care plan file. In cross-examination the pursuer said that she read the care plan at the start of the evening shift on 10 July, the first day, she said, that she had been back at work since AH's admission. (The "evening" or "late" shift was from 14.30 to 22.20.). She had no recollection of toileting AH before 11 July although, if AH had a urinary tract infection, she, the pursuer might have been involved in toileting her on 10 July. In evidence-in-chief the pursuer said that she had read the manual handling risk assessment at the start of her morning shift on 11 July 2006. Then, referring to the client risk assessment, she said there was not as much detail in the document when she saw it on the morning of 11 July as when she saw it in the witness box [6/5/29-30]. There was not as much detail as she would have expected. In this connection she referred specifically to the handwritten note "... encouraged to sit on shower chair to get washed and avoid standing" which she implied was a later addition.

[81] The pursuer did not recollect the version of the manual handling risk assessment dated 3 July 2006 produced by the defenders [7/1]. She stated that the document she saw was in Angela Thomson's handwriting. There was a lot of handwriting. The document she saw did not have the hoist and sling boxes ticked (like the typed document, 7/1). The pursuer initially said that the manual handling risk assessment she saw did not have the "additional information" inserted in the "Movement", "Walking" and "Transfer" boxes (unlike the typed document, 7/1). Since the "additional information" refers to two carers helping in each case, the pursuer's recollection paints an unlikely picture; and the pursuer herself appeared to recollect in cross-examination that the assessment specified transfer with two carers and that the version produced was consistent, in terms of content, with what she had seen. In cross-examination the pursuer agreed that when she filled in the Personal Incident Notification Form, part 1, she had answered the question "Risk assessment available?" by ticking the "Yes" box. She stated that, to the best of her recollection, the risk assessment she saw on the morning of 11 July was dated 7 July 2006. These issues were not put to Angela Thomson for her comment.

[82] Ms Thomson thought that she had not prepared the version of the manual handling risk assessment produced in Court, because it was typed [7/1]. She thought one of her seniors would have done it and that she, Ms Thomson, would have signed it off. The pursuer said that the care workers did not have the facilities to produce typed documents. Their documents would be handwritten until processed by the secretarial staff. Janet Seery did not think that she had been involved personally in the manual handling risk assessment or the update: if she had prepared the manual handling risk assessment, she would have signed it. The persons in the team who were involved in preparing manual handling risk assessments for patients were Colva Peterson, any one of the seniors on duty and the key worker for the patient in question. Colva Peterson stated that she was asked by Janet Seery to check the manual handling risk assessment as updated in handwriting by Janet Seery on 11 July. She identified the version produced [7/1] as the same as what she checked but without the manuscript additions.

[83] I agree with the submission for the pursuer that the authorship of the particular typed version of the manual handling risk assessment dated 3 July 2006 lodged by the defenders remains uncertain [7/1]. However, I am also bound to accept the admission in the pleadings, so far as consistent with the acceptable oral evidence, that "AH was assessed by key worker Angela Thomson on 3 July 2006"; and that "Ms Thomson concluded that AH required the assistance of two care staff for transfers." The typed version has a proposed review date of 10 July 2006 and none of the information in the typed version, except the date "03/07/2006" is at odds with the other evidence about when and how AH was assessed, mobilised and transferred by the defenders up to 11 July. The conclusion I have reached is that the typed version is based on an assessment in which Angela Thomson was involved on 4 July 2006 and which was available in some form on 11 July 2006.

[84] In any event, I am satisfied that a suitable and sufficient manual handling operation assessment was available when the pursuer started her shift on 11 July 2006. This consisted of at least all the information admitted by the pursuer to have been available in the client risk assessment, the manual handling risk assessment and the care plan. The inference I draw to this effect from the pursuer's evidence in the light of the documents was emphatically supported by Janet Seery in re-examination. The pursuer knew or should have known that there was a high risk of falls without support, that AH had unreliable judgement as to her own capabilities, that she had balance problems, that she mobilised in a wheelchair or in a shower chair, as appropriate, that she required two persons to assist for all standing transfers and that there was no requirement for hoisting subject, of course, to any on-the-spot assessment. When I say that the assessment was "suitable and sufficient" I mean among other things that, taking account of the information that was or ought to have been available, it highlighted the risks and identified the measures for reducing the risks to the lowest level reasonably practicable.

[85] I reject the suggestions made by Professor Carr and the pursuer that the assessment should have included a reference to the fact that AH suffered from urinary frequency. On the evidence of these witnesses, urinary frequency had a possible twofold relevance. The professor emphasised that frequent toileting over the course of the day would lead to a patient like AH tiring and becoming less able to weight bear. The pursuer told me that the ability to bear weight is affected where elderly patients are taking antibiotics for urinary tract infections: "they go off their feet", she said. Urinary tract infection was the only potential cause of urinary frequency mentioned in the evidence.

[86] Clearly AH had suffered from problematic urinary frequency and was apparently suffering when she was admitted to hospital in May: but there was no acceptable evidence that she was suffering at the material time in July. There is no mention in the hospital nursing notes during the pursuer's last few days in hospital of urinary frequency. The notes record that AH was toileted overnight once on 30 June-1 July, once on 1-2 July, and twice on 2-3 July. The discharge information makes no reference to frequency. In particular, the pro forma admission/ discharge summary for 3 July makes no reference to frequency in the "Personal Care" box opposite "Toileting", in the "Continence" box or in the "Any Additional Problems" box. The "Continence" box is filled with the words: "No specific continence problems." Although the pursuer claimed in Court that AH was "on antibiotics", the medication box has no mention of antibiotics. The Nordalea daily care log contains no reference to problematic frequency. The fact that the pursuer had no recollection of toileting AH during the late shift on 10 July tends, on her own account in oral evidence, to negative the idea that AH was then suffering from an infection that caused her to be toileted frequently. The general practitioner's recollection was that he had no cause to see AH during her stay at Nordalea from 3 July to 23 August 2006.

[87] The overnight daily care log note on 10-11 July states: "Rang x 3 to PU [pass urine]." When she came on duty the pursuer was told that AH had passed a comfortable night. There are five entries for 11 July: none refers to frequency. The mid-morning note by Jacqueline Chiplin records:

"AH was very alert and sociable this morning. Lots of interactions with staff. She managed to eat her breakfast without assistance & later took herself to her room in her wheelchair."

The pursuer, who now complains about AH's problematic urinary frequency on 11 July 2006, made no note in the daily care log about the problem for the attention of the staff following her in the next shift. The pursuer's own discharge summary for the re-admission to Gilbert Bain Hospital on 23 August makes no reference to frequency in any of the three relevant boxes. In the "Any Additional Problems" box it refers to: "Poor Fluid Intake - Signs of Dehydration." Looking ahead to the case conference at Gilbert Bain Hospital on 12 September 2006, after the insertion of the feeding tube, the minute makes no reference to urinary frequency; and it records that AH rose to the toilet two or three times a night and did not require hoisting. I have concluded that the pursuer's claim that she had to undertake 20 toileting transfers of AH during 11 July is exaggerated, greatly exaggerated if it is taken to mean that she made 20 transfers to and from the toilet. Ultimately I think the pursuer may have indicated that what she meant was ten journeys to the toilet and ten journeys back again, with a transfer on to the toilet and a transfer off the toilet on each occasion. Even so, I prefer the evidence of Jacqueline Chiplin that AH went to the toilet on average six times during a seven hour daytime shift. Ms Chiplin would not be persuaded by counsel for the pursuer that this was a low estimate.

[88] I cannot exclude the possibility that the pursuer had a minor, transient and self-curing infection at the material time but I am satisfied that there was no problematic frequency. Professor Carr's view that urinary frequency should have been mentioned in the risk and care documentation was based on a misunderstanding. The assessment was suitable and sufficient without such a mention. In any event, given my understanding of when and how the pursuer experienced back symptoms, there was and is no causal connection between the supposed omission of a reference to urinary frequency and the pursuer's back problem.

[89] Professor Carr's final position was that if the manual handling risk assessment had been reviewed on 10 July, as was apparently originally intended, the use of a hoist and sling for all transfers of AH would have been instructed then, that is before the pursuer came on duty on 11 July. The evidence for a proposed review date one week after admission comes from the "Client Risk Assessment", in the care plan file, where Angela Thomson filled in the "Date(s) assessed" as 3 July 2006 and "Proposed Review Dates" as 10 July 2006 in handwriting and then signed her name under the heading "Assessor Signature". The same assessment and proposed review dates were typed onto the "Manual Handling Risk Assessment" pro forma without an assessor's name or signature. Someone other than Ms Thomson-someone who crossed her figure 7s continental-style - filled in the "Specialist Services Record" in the care plan to show that occupational therapy services were requested on 10 July and that AH was seen by the occupational therapist on 20 July 2006. The visit was for re-assessment of the manual handling risks. When Janet Seery made her report, attached to the Personal Incident Notification Form, part 2, dated 20 July 2006, she wrote:

"On 10^th July I spoke to the hospital OT Elaine Smith about AH's needs and prognosis. She had assessed the client at the hospital but felt her assessment might not now be relevant. I rang the OT department to refer the client for a new assessment requesting advice on seating, transfers and assisted feeding..."

I am satisfied that Ms Seery did telephone to request a re-assessment on 10 July as recorded. The outcome was the new "Manual Handling Risk Assessment" dated 20 July, authored by Elaine Smith, occupational therapist, and signed "pp" by Janet Seery.

[90] Professor Carr deduced that a proposed review one week after admission reflected concern on the part of Nordalea staff that AH's condition was deteriorating. Another idea advanced by him was that the request for assessment by the occupational therapist arose, separately, out of an incident on 7 July when a friend of AH arrived to take AH for an outing in her car. Ms Seery conceded that this was possibly the case, although on the reported facts the connection between the car incident and the specialist assessment is not obvious to me. The car was low to the ground and the care workers were unhappy about the transfer into the car. Janet Seery felt the transfer was too difficult for staff and the outing did not take place.

[91] No evidence was offered by the defenders as to why a review assessment was proposed for one week after admission; or as to why there was no in-house review assessment on 10 July; or as to whether the referral to the occupational therapist on 10 July was meant to be, or took the place of the proposed review assessment. To be fair, I suppose, no notice of this line was given in the pursuer's pleadings: but Professor Carr's evidence on the matter was led without objection relatively early in the proof. Equally Professor Carr's theory about the reason for the proposed review assessment was not put to the defenders' witnesses Janet Seery or Angela Thomson in cross-examination by pursuer's counsel. If these matters had been clearly in issue at the start of the proof, the pursuer might have been asked by someone to explain why she, as a senior on duty, did not undertake the review assessment flagged up in the care plan for 10 July during the afternoon shift that day. The pursuer said that she read the care plan when she came on duty.

[92] Professor Carr's conclusion, as I say, was that a review assessment on 10 July would have led to a new hoisting regime being put in place before the pursuer came on duty on 11 July. The professor arrived at this conclusion by assuming that the re-assessment which was made after the pursuer voiced her concerns would have reached the same conclusion if conducted the day before when no concerns had yet been voiced by the pursuer. The professor's reasoning is not supported, indeed is contradicted by the facts. In the light of all the evidence it is clear that the re-assessment which was certainly made on 11 July was a concession to the pursuer's unique susceptibility or concerns. There was no reason to have arrived at the same conclusion on 10 July when the pursuer was on duty but, for some reason, on her account, not involved in transferring AH; and the evidence of Colva Peterson, who conducted the reassessment on 11 July was that it was appropriate to update the risk assessment because of changed circumstances, namely the "alleged incident" involving the pursuer - it was possibly nothing to do with AH but to do with the pursuer, she said. The outcome was that carers would do an on-the-spot assessment for each transfer and that a hoist would be used if deemed appropriate. The pursuer herself conceded that it was difficult to say that a re-assessment before 11 July would have concluded that hoisting was necessary. She said: "Assessments are usually better if you have a few bad transfers and say, 'Oh dear! Better do something about it.'"

Events after 09.00 on 11 July 2006

[93] The timeline offered by the pursuer for events after 09.00 on 11 July was that she raised concerns with Colva Peterson at about 09.00; that she and Colva Peterson did a trial transfer with AH and looked for a suitable hoist sling between 09.00 and 10.00; that there was a discussion involving the pursuer, Colva Peterson and Janet Seery at 11.00; and that when Janet Seery and the pursuer were alone together at the end of the meeting the pursuer told Ms Seery that her back was feeling sore and strained and that she needed help. At that point, according to the pursuer, Janet Seery instructed the pursuer to carry on with her work as normal.

[94] The main sources of evidence as to what happened after 09.00 on 11 July are the pursuer, Colva Peterson and Janet Seery, with reference to the contemporary daily care log entries and to Janet Seery's incident report dated 20 July. I have left out of account the evidence of Fiona Johnson, health and safety manager for Shetland Islands Council based on her RIDDOR [Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995] report dated 27 July 2006: her report was garbled, consisted of second-hand information from unidentified sources and was essentially valueless as an account and analysis of what happened on 11 July.

[95] Of the witnesses that I do accept to a greater or lesser extent, I found Colva Peterson to be credible and the most reliable in terms of content if not always in relation to the sequence of events. I found the pursuer's evidence to be incredible in certain respects but largely acceptable as to the sequence of events. Some of Janet Seery's account I found convincing: but I am unable to accept her evidence without qualification because her testimony and, indeed, her incident report had the flavour of self-justification. The incident report was compiled when it was known that the pursuer had gone off work sick with a bad back and at a time when the matter had become notifiable to the Health and Safety Executive. As Ms Seery said: "My report was a response to the pursuer's accident report claiming that the accident was caused by the fact that no hoist or sling was available." On the other hand I think it would be incorrect to draw inferences adverse to the defenders simply from the fact that changes were made to handling procedures from and after 11 July. As Ms Seery stated or at least clearly implied, new measures were instituted on a precautionary even defensive basis. By 15 July staff were tending to go back to "toileting AH in the usual way." Having reviewed all the evidence I find that the likeliest version of events is as follows.

[96] At some point between 09.00 and 10.00 the pursuer expressed concern to Janet Seery about the ability of AH to weight bear and about the fact that she, the pursuer, felt that AH was putting a strain on care workers. Janet Seery decided that AH's manual handling requirements should be re-assessed. She went with the pursuer to ask Colva Peterson if Ms Peterson would re-assess AH in light of the pursuer's concerns. This is partly vouched by the entry in the daily care log expressed to have been made by Janet Seery at 10.30: "I asked Colva to reassess AH's manual handling needs today." At this time of the morning AH was in her wheelchair. Colva Peterson and the pursuer undertook a trial transfer which involved actual toileting of AH, transferring her from wheelchair to toilet and back from the toilet to wheelchair. Colva Peterson was well satisfied that AH remained suited for two-person, assisted standing transfers. The pursuer conceded that the manoeuvre had gone well: but insisted that earlier transfers had been different. The pursuer was keen for AH to be hoisted. The pursuer testified that Ms Peterson did not feel the strain that the pursuer was feeling and told the pursuer: "It was down to me if I wanted to use the sling."

[97] Prompted by the pursuer, Ms Peterson and the pursuer went to check that the Wispa mobile hoist was working and to look for the slings for the hoist. The object at that stage was to find out whether there were slings of the right size for AH. The slings were rolled out on the floor. There was a full bodied sling of the right size that could have been used: but a toileting sling would have been more comfortable for toileting transfers. Ms Peterson and the pursuer discovered that there was no toileting sling. The pursuer said: "That's not very good." At 11.00 Janet Seery, Colva Peterson and the pursuer met to discuss AH's manual handling requirements. Janet Seery learned from Ms Peterson that there was no toileting sling for the Wispa hoist. Ms Peterson suggested that a toileting sling should be obtained. Ms Seery was "shocked" to discover that there was no toileting sling. She immediately telephoned the occupational therapy department in Lerwick to request a sling. For completeness, I reject the pursuer's evidence that she had looked for hoisting slings before she and Colva Peterson undertook the trial transfer. I also reject Janet Seery's evidence insofar as suggesting that the re-assessment was instructed before and independently of the concerns raised by the pursuer; and I reject Ms Seery's evidence insofar as suggesting that she made the request for the toileting sling before and independently of Colva Peterson's report that no toileting sling had been supplied.

[98] The outcome of the meeting was that, assuming she consented, AH would be hoisted on an "as-and-when" basis -- staff would do an on-the-spot assessment and would use a hoist as and when they deemed it necessary. Until the toileting sling for the Wispa hoist arrived, staff could use either the tracking hoist in the bathroom with a toileting sling or the mobile Wispa hoist with a full-body sling and the toileting chair. (Ms Peterson's explanations satisfied me that it would have been reasonably practicable, with some improvisation, to use either of these measures and that it was not a problem that the toileting sling was not immediately available.) Janet Seery and Ms Peterson went to see AH to explain the concern that she was sometimes putting a strain on care workers. AH accepted that she could no longer be supported to stand in the shower. She was open to being hoisted for toileting. AH was very amenable to doing what was perceived to be necessary for staff safety. Janet Seery told me: "We were probably more concerned about wanting to maintain her skills than she was." The meeting with AH was noted in the daily care log entry made by Janet Seery at 12.25.

[99] According to the pursuer she was told to carry on as normal at the end of the three-way meeting. According to Janet Seery's report, she and Colva Peterson returned to the pursuer and her colleagues on duty to explain the outcome. In oral evidence Ms Seery said that she didn't specifically remember explaining the outcome to pursuer and colleagues but that it was something she would certainly have done. Ms Peterson had no recollection of this. She had some memory of going back to the pursuer. She had no memory of telling the pursuer to use the tracking hoist or the Wispa full body sling and toileting chair. If an instruction were to have been given, it would have been given by Janet Seery. Ms Peterson had a very clear recollection, she said, that Janet Seery updated the typed risk assessment dated 3 July in handwriting: in the "Transfers" section, on my understanding of Ms Peterson's evidence, Ms Seery checked one of the boxes in the "Hoist" sub-section and checked the "full-bodied" box in the "Sling" sub-section; and Ms Seery also included instructions in the "Transfers - Additional Information" section for care workers to make an on-the-spot assessment and to use the hoist if in doubt. Janet Seery, according to Ms Peterson, asked this witness to look over Ms Seery's entries in the daily care log and to check the updated manual handling risk assessment.

[100] Ms Seery was emphatic that the manual handling risk assessment had been updated following the three-way meeting between 11.00 and 12.00 on 11 July: but she said that Ms Peterson had undertaken that task, something that Ms Peterson denied. If there were an updated risk assessment, it has not been produced and spoken to in evidence. The only explicit evidence of the existence of an updated document in the care plan file is the entry in the daily care log by Janet Seery herself referring to the updated assessment.

[101] Angela Thomson's entry in the care log on 12 July and her handwritten addition to the client risk assessment confirm that from 12 July AH was showered while seated on the shower chair. Later on the same day Ms Thomson noted that the tracking hoist in the bathroom was tried and found to be unsuitable (because of the spreader bar problem). The toileting sling for the Wispa mobile hoist arrived on 14 July. On 15 July Jacqueline Chiplin noted in the daily care log:

"Toileting sling arrived yesterday but will only fit mobile hoist & not tracking hoist. Therefore have been toileting AH in the usual way."

It might be possible to read this as a response to the terms of the updated manual handling risk assessment. This was the entry which prompted Jacqueline Seery's comment. Ms Seery commented: "Please ensure that the mobile hoist is used for toileting AH in the big bathroom as per risk assessment." On 18 July Jacqueline Chiplin noted:

"[AH] was toileted using hoist with partial success - carers found it difficult to pull trousers up far enough prior to putting her on sling. We also felt that the bar on the hoist pressed against AH's head, particularly when lowering."

The evidence left unanswered the question whether Ms Chiplin was referring to the suitability of the tracking hoist toileting sling or the Wispa hoist toileting sling or even the Arjo Opera toileting sling. No further daily care log sheets were produced in evidence.

[102] By the time of the specialist occupational therapy re-assessment on 20 July it seems that the replacement Opera Encore hoist had been delivered and was in service. The new assessment instructed: "Use Opera hoist and large sling for all transfers" with two persons assisting, specifying both toileting and full-bodied slings. The new assessment also instructed: "... if workers feel able and confident they can assist AH in a sit to stand movement using the belt to support her." Care workers were to use a handling belt. On 27 July Janet Seery qualified the instructions by adding handwritten notes to the effect that the standing-transfer, handling-belt method should be used for simple transfers only and could be used, "if both workers are confident and able", to support AH for cleaning after the toilet. As has been seen (above) there was then a reversion to the previous arrangements whereby the default method was assisted standing transfers.

Review of the risk assessment at 11.00 on 11 July 2006

[103] Regulation 4(2) of the Manual Handling Regulations 1992 (as amended) requires risk assessments to be reviewed in the sort of changed circumstances that emerged after 09.00 on 11 July 2006 in this case. The pursuer does not found on the review obligation in terms: but defenders' counsel made submissions to the effect that the defenders had complied with the obligation. The defenders' written submissions state [at 56]: "Regulation 4(2)... Ms [Seery] fulfilled the duty on the defender's [sic] under 4(3) [sic] by carrying out just such a review of AH's manual handling assessment in response to the pursuer's concerns that AH was having difficulty carrying out the transfer."

[104] I think it is questionable whether the defenders have discharged the onus on them of showing that the risk of injury was reduced to the lowest level reasonably practicable in the new circumstances that existed from and after 11.00 on 11 July. The defenders all along understood that the pursuer had a vulnerable back even if they did not know that she had an emergent problem at the L2/3 level of her spine; they knew sometime after 09.00 of the pursuer's concern about the possibility, at least, of undue strain to her and perhaps others using the two person assisted standing method to transfer AH; and they knew sometime after 11.00 that AH would consent to being hoisted. As part of the requisite risk reduction the defenders were bound in my view to update the manual handling risk assessment, to provide suitable equipment for "as-and-when" hoisting, and to give instruction as to how the equipment available should be used. I cannot be satisfied that they did these things comprehensively. For the purpose of discharging the onus they ought to have produced the supposed updated risk assessment in court, failing which they ought to have explained its non-production, led solid evidence of its existence and offered a detailed account of its contents. The pursuer said: "I was never instructed to use the tracking hoist and the toileting chair." I have no note that this evidence was challenged. In any event it was not clearly contradicted. In the event I conclude that the defenders failed to comply with the regulations sometime after 09.00 and at latest by 13.00 on 11 July 2006.

[105] However I am also satisfied that any failure by the defenders to comply with the regulations in the new circumstances did not cause the pursuer's injury. As explained above, the "injury" the pursuer complained about was probably not caused by manual handling and happened before 09.00 on 11 July 2006 at a point in time when, in my opinion, the defenders were in compliance with the regulations. Separately, there is no evidence, or at least no acceptable evidence that the pursuer was faced with "difficult" transfers that caused or contributed to her injury after 09.00. The important questions as to whether the pursuer would have used a hoist and whether she would have avoided injury by using a hoist were left unanswered.

[106] It is important to state clearly that I reject the pursuer's evidence that she had a confidential discussion with Janet Seery sometime after 11.00 and that Janet Seery, in the knowledge that the pursuer was injured or at least was actually feeling ongoing strain in her back as opposed to merely expressing concern, told the pursuer to carry on. I simply do not believe the pursuer. Janet Seery adamantly and indignantly rejected the pursuer's account. The impression I formed while Ms Seery was giving her evidence on this point was that I believed her. That remains my assessment. The pursuer's evidence was that she waited to tell Ms Seery privately because she was "embarrassed to go into details in front of others" (meaning Colva Peterson and Jacqueline Chiplin) on account of her previous back injury. This struck me, and strikes me as implausible. Further, on the consistent and unchallenged evidence about what happened at the close of the three-way discussion involving Ms Seery, Colva Peterson and the pursuer, there was apparently no opportunity for the pursuer to have had a confidential talk with Janet Seery. Colva Peterson, Janet Seery and the pursuer herself testified that the outcome of the meeting was that Ms Seery and Ms Peterson went, immediately as I understand it, to talk with AH about handling options. The pursuer said: "I saw them going into [AH's] room."

[107] As I listened to Janet Seery's evidence she struck me as being the sort of manager who would not wish to find herself in the position of doing something, or of having done something "inappropriate", to use her own word. Ms Seery was the sort of manager who would not allow her care staff to transfer AH to a motor car on 7 July because Ms Seery assessed that the transfer would cause the care workers undue strain; and Ms Seery was described by Colva Peterson as having been "shocked" to discover on 11 July that the occupational therapy department had omitted to supply a toileting sling for the replacement Wispa hoist. Ms Seery said that it would have been "totally inappropriate" on her part to have instructed the pursuer to continue handling AH had the pursuer reported feeling physically strained. If she had given such an instruction in the circumstances alleged by the pursuer she would have expected the pursuer to take the matter up immediately with Ms Seery's manager. Janet Seery denied giving the pursuer instructions to continue handling AH knowing that the pursuer complained of feeling physically strained. I accept Ms Seery's evidence.

[108] Part of my reason for accepting Ms Seery's evidence is because I also accept Ms Peterson's evidence that there was no logistical need to give the pursuer such an instruction in the circumstances alleged by the pursuer. If there had been a problem for the pursuer in continuing to toilet AH using standing assisted transfers to and from the wheelchair for the rest of the pursuer's shift on 11 July, there were alternatives that could have been deployed immediately: the fixed tracking hoist in the bathroom could have been used with a toileting sling; or the mobile Wispa hoist could have been used with a full body sling and the commode chair; or either Ms Seery or Ms Peterson could have substituted for the pursuer when it came to toileting AH. The tracking hoist with toileting sling was not tried until the afternoon of 12 July when Angela Thomson noted that "it was not suitable as it was going to come into contact with AH's head". By inference neither the pursuer nor any other care worker tried to use the tracking hoist on 11 July or the problem would have been discovered sooner; and something could have been done about it. Ms Peterson explained that, if it were a question of staff safety, a pillow could have been used to cushion AH's head against the spreader bar. Clearly this would have been a temporary measure in the first instance, until the toileting sling for the Wispa hoist arrived, as it did on 14 July.

[109] It was common ground that after lunch on 11 July, Janet Seery was "in supervision" meaning, as I understand it, that she was discussing their performance with individual members of staff in her office, one at a time. She had a "do not disturb" sign on the office door. According to the pursuer, the pursuer went to speak to Ms Seery three times that afternoon and each time found the "do not disturb" sign on the office door. The pursuer said twice that she went three times to report her "injury". The pursuer explained that she did not feel "acute" (meaning "severe") pain at that stage and that she did not feel justified in disturbing Janet Seery when Ms Seery did not want to be disturbed. I do not understand why the pursuer should have wanted to report her claimed injury if she had, as she says, already reported it at the close of the earlier meeting.

[110] Janet Seery's evidence was that the sign could make people hesitate: but if the pursuer had ongoing concerns and was in pain she would hope that the pursuer would have knocked on the door or phoned when she got home (after the end of her shift). If the pursuer had suffered injury, said Ms Seery, she, Janet Seery, would have wanted to know immediately. Again, I do not believe the pursuer on this matter without supporting evidence, of which there is none. There is no evidence from colleagues about how the pursuer coped with her duties after 11.00 on 11 July; and there is no daily care log entry by the pursuer or anyone else that throws light on the question.

Contributory negligence

[111] The defenders plead sole fault and contributory negligence on the part of the pursuer. The primary submission made was based on the hypothesis that the pursuer's injury was sustained while the pursuer was "lifting" AH as described in the medical reports. Social care workers were prohibited from lifting patients, as the pursuer knew, and it was the pursuer's duty not to lift AH. Further, in the event of AH becoming unable to weight bear during a transfer, it was the pursuer's duty to use the assisted fall technique in which the pursuer had been trained. Since there was no eye-witness evidence of lifting and I have concluded that the pursuer did not lift AH and since I have also concluded that AH did not fail to weight bear at the time when the pursuer experienced the onset of symptoms, I must also conclude that the pursuer was not in breach of these particular duties.

[112] Additionally, the defenders aver that the pursuer had a duty not to continue to undertake transfers on the hypothesis that AH was unable to weight bear. The pursuer accepted that she had been instructed on her return to work in 2005 to report immediately if she were suffering pain and discomfort. She contended that she had reported her injury at the end of the late morning meeting and had tried three times to report her injury during the afternoon of 11 July. I do not believe her. If she had reported an injury I find that she would probably have been removed from manual handling duties with AH. On the hypothesis that the pursuer's involvement with AH after 09.00 caused or contributed to her injury I find that her injury was attributable in part to her own fault. I would assess her contribution at 50 per cent. All this is hypothetical of course. My primary conclusion is that the claimed injury was not caused by manual handling; and that, up to a certain point in time, by which time the claimed injury had been sustained, there was no breach of the regulations.

Disposal

[113] For the foregoing reasons I shall assoilzie the defenders from the conclusions of the summons and grant decree of absolvitor.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> JANE ELPHINSTONE v. SHETLAND ISLANDS COUNCIL [2013] ScotCS CSOH_96 (18 June 2013) URL: http://www.bailii.org/scot/cases/ScotCS/2013/2013CSOH96.html Cite as: [2013] ScotCS CSOH_96

Scottish Court of Session Decisions