Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 151

 

PD1172/15

OPINION OF LORD ARMSTRONG

In the cause

SD

Pursuer

against

GRAHAM’S DAIRIES LTD

Defenders

Pursuer:  Milligan QC, Nicholson;  Digby Brown LLP

Defenders:  MacKay QC, MacDougall (sol adv);  BLM

 

2 November 2016

Introduction
[1]        The pursuer is 43 years of age.  On 24 August 2014, he was injured in an accident at work (“the index accident”), in respect of which liability is admitted by the defenders.  The principal issue in the action is whether the accident had the effect of accelerating the onset of symptoms referable to the pre‑existing condition of his spine by a period of about 18 months, or whether it caused an exacerbation, for a period limited to about three months, of symptoms that were already present arising from his pre‑existing condition.

The Accident
[2]        The circumstances of the index accident were largely admitted.  On 24 August 2014, in the normal course of his employment with the defenders, the pursuer was delivering milk to a supermarket.  He was driving a lorry loaded with wheeled cages which were loaded with cartons of milk.  The wheeled cages each weighed approximately 20 stones but were not fitted with brakes.  On arrival at his delivery address, it was apparent that the cages to be delivered there were located in the back of the lorry behind the cages destined for other deliveries.  As he was moving the wheeled cages to access those for the delivery address, a number of the wheeled cages, which were not secured with separation bars, moved into space created and trapped him against the side wall of the lorry.  He felt immediate pain in his back.  He was trapped by the weight of some nine or ten cages for a period of about 10 to 15 minutes, during which time he attempted to extricate himself by pushing, pulling and, in particular, twisting his body in order to free himself.  While trapped he had felt significant pressure on his chest.  Having freed himself, he was unable to obtain assistance.  After 45 minutes, he found himself in such significant pain that he was unable to stand.  By the time help arrived, he was in a great deal of pain, was hardly able to move, was finding breathing painful and was suffering sharp pains in his back and chest.

[3]        He was taken initially to Stirling Community Hospital Minor Injuries Unit, from where, because of concern as to the extent of his injuries, he was transferred by ambulance, his back having been immobilised, to Forth Valley Royal Hospital, Falkirk.  On admission to that hospital, he was suffering severe pain in his back and around his ribcage, was having difficulty breathing and was experiencing pain between his shoulder blades and in his legs.  He also felt dizzy.  He felt pins and needles in both feet.  His injuries were assessed, and pain relief was administered in the form of intravenous morphine.  He was kept in hospital overnight and discharged the following day.  Subsequently, in November 2014, an MRI scan of his spine was conducted.  Since the index accident, he has suffered a major depressive episode of moderate severity (DSM 5) as a result of continuing back pain.  Following the accident, with effect from 23 April 2015, his employment with the defenders was terminated on the ground of incapacity.  He has not worked since. 

[4]        In cross-examination, it was put to the pursuer that when interviewed for the purposes of the action, he had, on several occasions, been less than forthcoming in revealing details of episodes of back pain prior to the index accident.  His response was that he had not been suffering from back pain immediately before the index accident, that he had never before suffered back pain comparable to the severity of that experienced after it, and that he was unable to remember the details of particular past attendances with his general practitioner.  On the whole, I assessed the pursuer as a credible witness.  The criticisms made of him in this respect were not sufficient to cause me to doubt his reliability on matters of substance.

 

The Pursuer’s Past Medical History
[5]        In the years prior to the index accident, the pursuer suffered several episodes of back pain.  He had consulted his general practitioner in 1995 in relation to right-sided back pain, in 1998 in relation to right lumbar pains, and in 1999 in relation to “muscular strain neck, back …”.  In about the first half of 2006, he suffered pain in the upper lumbar spine which continued for some five to six months.  In about October 2006, he suffered back pain as a result of an accident at work in which his lorry collided with another vehicle.  The pain resulting from that accident had lasted a matter of weeks.  In early August 2014, he suffered back pain again as the result of an accident at work.  He had not consulted his general practitioner specifically in relation to that incident, but had mentioned the back pain resulting from it, in passing, in the course of a consultation just over a week later, in relation to a separate matter.  None of these previous incidents had caused him to be absent from work.

[6]        His general practitioner medical records reflected the progress of the pursuer’s condition following the index accident.  From then to the end of 2014, he attended at his general practitioner on some ten occasions.  Acute back pain was noted throughout, together with sciatic pain, right achilles tendonitis and low mood.  He was referred for physiotherapy.  In the course of 2015, he attended his general practitioner on some 23 occasions.  His acute back pain persisted throughout.  He was referred to a pain clinic and for counselling.  He was referred to a psychiatrist, and had further physiotherapy.  He was noted as suffering from anxiety, stress headaches and depression.  He was described as having significant psychosocial upset.  Acupuncture proved unsuccessful.  Since then, his symptoms have remained unchanged. 

 

The Expert Evidence
Ravindra Kulkarni
[7]        Mr Kulkarni, a consultant orthopaedic surgeon, gave evidence on behalf of the pursuer.  For the purposes of his report, dated 18 August 2015, he had examined the pursuer and had access to all relevant general practitioner and hospital medical records.  He described the mechanism of injury as involving compression which resulted in contusion of soft tissue, and also twisting of the back which produced a sprain of the spine, involving sprain of the ligaments and muscles of the spine, compromise of the vertebral discs and the possible bruising of nerves which could have accounted for the pain experienced by the pursuer in his legs, and the pins and needles felt in his feet.  He described the pursuer’s condition as being that of lower thoracic and upper lumbar spinal strain and confirmed that the mechanism of injury described by the pursuer was consistent with his presentation.  He confirmed that the pursuer had suffered no neurological deficit as a result of the accident, and that X‑rays taken at the time had disclosed that he had not suffered any skeletal fractures.  At the time when Mr Kulkarni had examined the pursuer, a year after the index accident, he had ongoing back pain and was still tender around the spine. 

[8]        Mr Kulkarni confirmed that the correlation between ongoing back pain and the incidence of depression.  It was recognised that back pain can cause depression in patients, and that patients who become depressed do not recover well from back pain. 

[9]        He considered it significant that the medical records disclosed no episodes of back pain between 2006 and 2014. 

[10]      He considered the pursuer to be a reliable witness in so far as his descriptions of the pertinent events and his ongoing symptoms were concerned. 

[11]      In the context of the pursuer’s overall condition, an injury to his left elbow, referable to the index accident, was not significant.  He would have expected recovery from that injury in a matter of some eight weeks.  In so far as an injury to the pursuer’s right achilles tendon was concerned, also referable to the index accident, he considered that too not to be significant in the general context of the pursuer’s condition, and considered that recovery from that injury would have occurred within some four months.

[12]      He considered the pursuer’s pain following the accident to be initially entirely due to strain of muscular‑ligament attachments of the spinous processes and facet joints of the lower thoracic and upper lumbar spine. 

[13]      He noted that the MRI scan conducted following the index accident indicated some degenerative change in the form of endplate disc herniation.  In that regard, however, it was important to recognise that it was not possible to predict the incidence of pain on the basis of an MRI scan alone.  It was also significant that the majority of patients with degenerative change of the spine did not develop back pain, but remained asymptomatic.  Patients with degenerative change of the spine, however, if exposed to relevant trauma, did not generally recover quickly.  In such circumstances, a patient with a healthy spine would normally be expected to recover in a period of about six months.  Where the spine was degenerate, a longer recovery period would be expected.  In the case of the pursuer, it now appeared that, some two years after the index accident, the pursuer continued to suffer chronic mechanical back pain in his lower thoracic and upper lumbar spine, with no signs of improvement.  Whereas prior to the index accident the pursuer had suffered back pain in 2006, it had not been comparable to his present condition which was constant, chronic, severe, and prevented him from working.  He considered that the effect of the index accident, which had caused strain of the lower thoracic and upper lumbar spine, had been to trigger the pursuer’s inherent susceptibility to develop chronic mechanical back pain and had thus accelerated the onset of his current condition by a period of some 18 months.  If the pursuer had been a patient with a healthy spine, he would have expected recovery within 18 months.  Where recovery had not occurred within the period of 18 months, he considered it likely that there would be no further improvement.  In his opinion, the pursuer’s current condition was being caused by the degenerative change in his spine, rather than the injury referable to the index accident.

[14]      He considered that, on the hypothesis that the accident had never happened, it would not be possible to predict with certainty how the pursuer’s condition would have progressed.  It was possible that he would have experienced intermittent back pain, of the level experienced in 2006, perhaps once or twice per year, but not such as to preclude him from working.  If the pursuer had not sustained the injury which he did as a result of the index accident, he would not have experienced the severe back pain which had in fact resulted.  In that situation, he would have experienced back pain after a period of some 18 months or so, but not pain so acute as that which he had in fact suffered during that period following the index accident.  The index accident had produced acute back pain which had then subsided to some extent.  If the accident had not occurred, the pursuer would ultimately have suffered back pain but at that lower level.  Mr Kulkarni was in no doubt that the pursuer’s inability to work for some 18 months following the accident, was entirely due to the injuries which he sustained on 24 August 2014. 

[15]      In cross‑examination, Mr Kulkarni accepted that he had not himself viewed the MRI scan imaging taken of the pursuer’s spine, but when forming his opinion had relied on the relevant radiological reports.  He agreed however that the MRI scans did show degenerative change.  Although, in his report he had not specifically mentioned the development of osteophytes in the pursuer’s thoracic spine, he had referred to degenerative change, of which osteophytes were one particular form.  The particular effect of osteophytes was to cause nerve root compression, but that was not a relevant consideration in the pursuer’s case in circumstances where he had suffered no neurological deficit.

[16]      He did not consider the accident which occurred on 5 August 2014 to be of significance to the progression of the pursuer’s back pain following the index accident.  That earlier accident had been minor in comparison to the later one.  It had resulted in a very different level of pain, a significantly lower level, in respect of which analgesia in the form of ibuprofen had been adequate treatment.  The pain from that earlier accident would have subsided relatively quickly.  The fact that the earlier accident had not resulted in a referral to an accident and emergency department was an indicator that it had not been regarded as serious.  He was firmly of the view that the accident at work on 5 August 2014 had no connection with the pursuer’s current condition.  That earlier accident, which had produced back pain, albeit caused by trauma, had simply been an isolated incident, to be taken into account in the context of the pursuer having had no back pain since 2006. 

[17]      In that regard, he accepted that the incident of back pain recorded in April 2006 which had lasted for some five to six months, ought to be regarded as a significant episode.  He also accepted that the part of the back then concerned was the same area as was affected in the pursuer’s present complaint.

[18]      He disagreed with the suggestion that the degenerative change in the pursuer’s spine was significant in that it was present to a greater degree than was average.  Rather, as set out in the hospital report, he noted the alignment of the pursuer’s spine to be normal with no evidence of scoliosis.  What was apparent was wear and tear of the disc structures which would be normal for a somewhat overweight manual worker, such as the pursuer.  Such degenerative change would not necessarily be symptomatic.  He accepted that it would be appropriate to describe the pursuer’s condition as being that of the general degenerative condition of spondylosis, but he disagreed that the pursuer’s condition was due to the previous work related accident on 5 August 2014 and pre‑existing degenerative change.  The degenerative change of the pursuer’s spine had probably been present for many years, but had been largely asymptomatic.  If the incident of 5 August 2014 had been significant, it would have been expected that the pursuer would have consulted his general practitioner on the day of the injury.  In fact that had not happened.  He had mentioned his back to his general practitioner only incidentally, eight days later, when consulting him in relation to something else.  There had been no medical intervention in relation to that back pain and it was therefore not significant.

[19]      When the pursuer had consulted his general practitioner after the index accident his pain level had been significantly higher than previously, and had been consistent with having sustained a serious injury.

[20]      He attached importance to the fact that the pursuer’s back pain prior to the index accident had not been continuous, whereas after it, he had suffered severe and constant pain which had prevented him from working.  The pain which he had suffered after the index accident had been partly due to the injury caused by it and partly due to the degenerative condition of his spine.  In that context, the period of acceleration of 18 months in relation to the onset of chronic mechanical back pain was relatively short.

[21]      He disagreed with the suggestion that the index accident had the effect only of exacerbating the pursuer’s degenerative back pain for a period of three months.  He did so for the reason that, as a result of the index accident, the pursuer had suffered a significant injury of the type which would not normally be expected to resolve within three months, especially in a situation where there was already degenerative change.  In that context, the period of three months was a very, very short period where severe injury was concerned.

[22]      He accepted that in patients who have degenerative change in the spine, as indicated in the X‑rays of the pursuer’s spine, a small event such as a sneeze could cause a previously asymptomatic condition to become symptomatic.  Against that, he commented that, in the pursuer’s case, nothing of that sort had occurred in the eight years following 2006.  Throughout that period the pursuer had been able to work.  Although he accepted that degenerative change of the spine would progress with age, his view was that the degenerative change evident in the pursuer’s spine indicated that his back was very far from being on the brink of collapse. 

 

Mr Christopher Adams
[23]      Mr Adams, a consultant spinal surgeon, gave evidence on behalf of the defenders, under reference to his report dated 27 February 2016.  On a review of the pursuer’s medical records, he considered that the pursuer had a history of back pain extending from 1995 with recent change in his back symptoms.  General practitioner records disclosed consultations concerning back pain in 1995, 1996, 1998, 1999 and 2006.  In 2006, prior to the accident at work in October, the pursuer had complained of back pain over some five to six months, in about April 2006, in circumstances which did not involve trauma.  In circumstances where the average episode resolved within four to six weeks, he considered a period of five to six months, in the context of back pain, to be one of prolonged duration.  Where such a lengthy episode had occurred, it was more likely that there would be a recurrence in the future.  In that context, he considered the likelihood of a further episode of back pain to be almost certain;  in the pursuer’s case, the extreme degeneration of his spine would have made him susceptible to injury caused by twisting of the torso, affecting the thoracic and lumbar spine.

[24]      The available X-rays indicated that in so far as the pursuer’s lumbar spine was concerned there was no abnormality and no degenerative change.  X‑rays of his thoracic spine, however, indicated degenerative change in the form of osteophytes at levels T7 ‑ T11 and in particular at levels T8 ‑ T10.  Such change occurred over years.  It was atypical to find such general degenerative spondylosis of the thoracic spine in circumstances where the lumbar spine was normal.  In the light of these X‑ray findings and having also viewed enhanced MRI scans, Mr Adams concluded that as a result of the index accident the pursuer had suffered no neurological injury, but that the index accident had caused an exacerbation of symptomatic pre-existing multi-level degenerative thoracic spondylosis.  He agreed with Mr Kulkarni that the accident had caused a strain of muscular‑ligament attachments of the spinous processes and facet joints of the lower thoracic and upper lumbar spine, but considered that the discs and other anatomical structures around vertebrae T8 ‑ 9 and T9 ‑ 10 had also been affected. 

[25]      The mechanism of the accident of 5 August 2014, which had involved twisting actions, was consistent with the injury which it had produced since such movement would impact on the thoracic lumbar junction of the spine in a manner which would have exacerbated vulnerability to injury caused by the existing degenerative change. 

[26]      In so far as the index accident had been concerned, the attempts by the pursuer to extricate himself from the direct pressure causing him to be trapped, by pushing and twisting over some 10 to 15 minutes, had caused greater force to be applied to that part of his spine already vulnerable to exacerbation of symptoms. 

[27]      Against that background, on the basis of statistical data in relation to average recovery times, given the mechanism of the index accident and the pursuer’s past medical history, he considered the appropriate period of exacerbation to be in the range between ten days and three months, that being the period, but for any pre-existing degenerative issues, within which he would have expected the soft tissue injury, caused by the index accident, to resolve. 

[28]      He disagreed with the concept that the index accident had accelerated the onset of symptoms.  He considered that, at the time of the index accident, the pursuer would have been still suffering residual symptoms from the accident of 5 August 2014.

In his view, the index accident had exacerbated symptoms that were already present due to the combination of the accident on 5 August 2014 and his pre-existing spinal degenerative change.  The symptoms from which the pursuer was suffering after a period of three months from the index accident were the very symptoms which would in any event have become evident if the index accident had never happened. 

[29]      In cross‑examination, he accepted the following propositions taken from an authoritative text by Professor Waddell, a highly respect expert in the field of back pain: 

“1.       There is a poor correlation between degenerative change shown on X-rays, MRI and CT scans, and symptoms.

 

2.         It is impossible to predict whether someone will suffer back pain just from evidence of degeneration on X-rays, MRI or CT scans.

 

3.         Most people will have some degeneration in their lumbar spines by their 40s.

 

4.         Most people who suffer back pain sufficient to cause them to see their general practitioner will still have some symptoms after three months.

 

5.         Those who attend a healthcare provider complaining of constant pain have worse outcomes than those who complain of intermittent pain.

 

6.         70 ‑ 80% of people who suffer back pain sufficient to cause them to see their general practitioner will still have symptoms after 12 months.

 

7.         Those who complain of nerve root pain (sciatica or leg pain) have a worse outcome than those with low back pain alone.

 

8.         Blue collar workers have a slower recovery than white collar workers.

 

9.         The longer a patient is off work, the lower the chance they will return to work.

 

10.       Once off work for six months, there is only a 50% chance of ever returning to a previous job.

 

11.       Any patient who has been off work for more than two to three months with back pain is at serious risk of long term incapacity.

 

12.       Where patients also develop psychological problems, that can lead to a vicious circle of pain and depression.

13.       Psychosocial factors are very important in predicting prospects of recovery from back pain.

 

14.       Table 7.8, at page 128 of ‘The Back Pain Revolution’ (2^nd Edition), by Professor Waddell, is an accurate summary of social demographic and clinical and psychological factors as predictors of chronic pain and disability.

 

15.       Everyone responds to back pain differently.”

 

[30]      Although he accepted that, typically, people with degenerative change do not suffer back pain, he considered the degenerative change in the pursuer’s thoracic spine to be particularly abnormal.  He accepted that the condition of the pursuer’s spine, as shown on MRI scan and X‑ray was likely to have been present for a number of years before the index accident, but considered that the level of degeneration would have been increasing with time.

[31]      He accepted that before 2006 the pursuer had been free of back pain for some seven years since 1999.

[32]      He accepted that the back pain experienced by the pursuer around April 2006 had not been severe and had not been sufficient to cause him to be absent from work.

[33]      He accepted that the symptoms experienced by the pursuer in the period after 24 August 2014 were far more severe than those experienced by him before that date.

[34]      He accepted that the pain caused by the accident at work in October 2006 was associated with trauma and had not lasted long that, and that the pursuer had not again consulted his general practitioner in relation to back pain until 2014.

[35]      He accepted that prior to the index accident, when the pursuer had attended his general practitioner in early August 2014 he had attended for a reason other than back pain and had simply mentioned the accident at work on 5 April 2014 in passing.  Notwithstanding that, Mr Adams considered that, at that time, his prognosis would have been that, although it was likely that the pursuer’s symptoms would reduce to the level pre‑existing prior to the accident, he was nevertheless at risk of multiple future recurrences of back pain, with a chance of severe persisting back pain developing in a short space of time.

[36]      He accepted that on his analysis, there was an implicit assumption that immediately before the index accident the pursuer was still suffering from the symptoms of back pain brought on by the accident of 5 August 2014.

[37]      In his view, the injury suffered by the pursuer as the result of the index accident, which included damage to discs, endplates, vertebrae, facet joints, with associated contingent muscle spasm and some consequential referred pain, would all have resolved within three months.

[38]      He considered the onset of back pain at 5 August 2014 to be an example of exacerbation.  He considered that even if the pursuer had been free of symptoms immediately prior to the index accident, he would have been at a high risk of recurrence of back pain.

[39]      He accepted that the index accident would have triggered symptoms which were subsequently perpetuated by psychosocial factors impacting on the pursuer, but maintained that, normally, he would expect such symptoms to resolve within three months at the most. 

[40]      In his view, the index accident had exacerbated the effect of the accident of 5 April 2014 and accordingly, even if the pursuer had been free of symptoms immediately prior to the index accident, it was unlikely that he would have remained free of symptoms for any period of time because of the resulting enhanced level of risk of recurrence.  He considered that if the index accident had not occurred, a recurrence of back pain would have been likely.  At that time it would not have been possible to predict exactly when that would have occurred, or whether it would have been sufficiently severe to prevent the pursuer from working, but the risk was high, as in Mr Adams’ view the pursuer had been approaching an unstable phase which would have been likely to develop into instability and create a situation where the pursuer was unable to work.  It was entirely possible that a recurrence would have occurred within the next six months. 

[41]      He considered the period of 18 months, suggested by Mr Kulkarni, to be too long.  Although the process of degeneration of the spine was gradual in so far as most people were concerned, for those who were symptomatic, there was the potential for sudden change.  In that regard, it was the relevant pathology which required to be taken into account, assessed historically, rather than the symptoms which were presented.  In the pursuer’s case his pathology was indicated by the X-rays and MRI scan.  On that basis, Mr Adams considered it possible that the pursuer would have developed his present symptoms, in any event, within six months, even without the occurrence of the index accident.  He maintained that if the index accident had never happened, then taking account of the relevant variable factors, he would have expected the pursuer, after a period of three months from 24 August 2014, to have been exhibiting the symptoms which at that time he in fact did, as a result of the natural progression of the effect of the pathology of his spine, following the triggering of symptoms by the accident of 5 August 2014.  In that context, he accepted that such an analysis meant that at the point three months after the index accident, whether the accident had happened or whether it had not, the pursuer’s symptoms would have been the same notwithstanding that on each scenario the cause of the onset of symptoms would have been different.  His view was that the index accident had not triggered the pursuer’s subsequent symptoms, but rather had exacerbated existing symptoms. He also maintained that, even without the index accident, the pursuer subsequently, three months from its date, would have been experiencing the symptoms which at that time he in fact did.

 

The Causative Effect of the Accident

[42]      In relation to the principal issues arising in the case, namely causation and the quantification of damages, counsel for both parties tendered written submissions, the terms of which, together with the oral submissions made at the bar, are reflected in what follows.  [43]  Unsurprisingly, given the clear conflict in the opinion evidence, senior council for both parties emphasised what is well‑established as the role of an expert witness.  Bare ipse dixit, without an explanation of the basis of the evidence given, carries little weight;  the expert witness cannot usurp the function of the court.  In that regard, I was referred to the recent case of Kennedy v Cordia (Services) LLP 2016 SLT 209.

[44]      For the defenders, it was stressed that, unlike Mr Adams, Mr Kulkarni was not currently a practicing spinal surgeon.  In the circumstances of this case, however, I attach little weight to the distinction.  Both men were clear that the majority of patients with back pain do not require surgery, and, in the event, following the index accident the pursuer has never been a surgical patient, but rather has been treated conservatively throughout.  In these circumstances, I conclude that the fact that Mr Adams currently practices as a spinal surgeon confers no particular advantage.

[45]      The hospital report on the X‑rays of the pursuer’s spine, taken on 24 August 2014, stated as findings:  “Normal vertebral body height and alignment”.  Mr Adams had taken the opportunity personally to view the available X‑rays, using a system which provided improved image quality and functionality.  His findings were that the pursuer’s lumbar spine showed no evidence of degenerative change.  In marked contrast to that, however, the X‑rays showed the thoracic spine having degenerative change at multiple levels with bone forming (osteophytes) on the right side.  The vertebral levels most affected were T7/8 to T10/11, particularly levels T8/9 and T9/10.

[46]      An MRI scan of the pursuer’s lower thoracic and lumbar spine was carried out in November 2014.  The recorded findings of the consultant neurologist who viewed the X‑rays were:

“The lumber intervertebral discs appear healthy with no significant disc bulging or prolapse.  There is no evidence of nerve root compression or spinal canal narrowing.  There are a few small endplate disc herniations in the lower thoracic and upper lumbar spine which are probably incidental findings.  There is no evidence of vertebral collapse.  Marrow signal is normal with no evidence of oedema.  There are single small incidental fat containing haemangiomata within the T10 and S2 vertebra.  Vertebral alignment is preserved.  Appearances of the lower spinal cord conus and cauda equina are normal.  The paravertebral soft tissues appear unremarkable. Conclusion:  no evidence of nerve root compression or any significant disc abnormality”.

 

Again, Mr Adams viewed the images with the benefit of improved image quality and functionality.  He found degenerative changes in the intervertebral discs at T10/11 and T11/12. 

[47]      Against that background, Mr Adams had reached his view on the effect of the index accident on the basis of the existing evident degenerative change to the pursuer’s spine, his own experience, and statistical material bearing on the timing of return to work following comparable injuries (Health and Safety Executive, 2015). 

[48]      In reaching his view, Mr Kulkarni took into account the findings set out in the hospital reports of the relevant imaging of the pursuer’s spine, including degenerative change evident from the MRI scan.  However, he also attached particular significance to the pursuer’s past medical history as an indicator of the development of the pursuer’s spinal condition.  In that regard, although I appreciate, of course, that the development of the particular pathology of the pursuer’s spine has been an incremental process, it is appropriate to take into account the frequency and pattern of his past episodes of back pain.  That analysis discloses that between 1999 and 2006 he suffered no back pain for a period of some seven years, or, at least, none sufficient to cause him to attend his general practitioner.  In early 2006, he experienced back pain for some five to six months, and later that year he suffered back pain following an accident at work.  None of these episodes caused him to be absent from work.  After 2006, there were no recorded episodes for some eight years, until 13 August 2014 when he disclosed back pain, incidentally, following an accident at work on 5 August 2014.  At that time, in respect of that back pain, which had been caused by trauma, he was self‑medicating successfully, using only ibuprofen.

[49]      Mr Adams’ view was that, by that stage, there was an immediate and imminent likelihood of the pursuer developing severe chronic and disabling back pain within a very short time.  Against that, the last episode prior to the index accident, properly contextualised, was the first such episode in some eight years, was not spontaneous but rather was caused by trauma, and was not something which caused the pursuer to consult his general practitioner.  It was treated apparently successfully with ibuprofen and appears to have resolved by the date of the index accident.  Significantly, there was no evidence that the pursuer was suffering any symptoms of back pain immediately prior to the index accident.  On such an analysis, the accident of 5 August 2014 could legitimately be regarded as having been a relatively minor episode in the medical history of a manual worker.

[50]      In contrast, the index accident was much more extensive, involving significant trauma and immediate and subsequent symptoms different from any previously suffered by the pursuer.

[51]      Against that background, on the evidence taken as a whole, I am not persuaded by Mr Adams’ analysis that the effect of the accident was to exacerbate symptoms already in place through the combined effect of the developing pathology of the pursuer’s thoracic spine and the accident of 5 August 2014 operating as a precipitating catalyst.  Absent evidence of continuing symptoms caused by the accident of 5 August 2014, as at the time of the index accident, Mr Adams’ approach would appear to require recognition of a coincidence that the index accident, said to have exacerbated the symptoms existing at that time, occurred at the same time as the spontaneous onset of what were to become the pursuer’s now continuing symptoms.

[52]      I accept that the imaging of the pursuer’s spine shows osteophytes in the areas identified by Mr Adams and that they are associated with degenerative change at the vertebral joints affected, with the effect that movement of the affected area may be restricted by pain and stiffness.  As Mr Adams put it, their presence is often indicative of a specific underlying condition, but in the pursuer’s case there are no specific diagnostic criteria present.  His condition is more general degenerative spondylosis.  Such changes may impinge on proximal nerves to create neurological symptoms, but again those are absent in the pursuer’s case.  The particular characteristic of the pursuer’s degenerative change is that although his thoracic spine is clearly affected, the lumbar vertebrae are not.  Mr Adams’ evidence was that such a marked contrast between these two areas of the spine was markedly abnormal.  While these changes may well be greater than those to be expected in the average person of the pursuer’s age, I attach weight to the evidence that, until 4 August 2014, they had been asymptomatic for some eight years.

[53]      Mr Kulkarni was the subject of criticism because of a suggestion made by him that pain in the area of the pursuer’s right ankle might be sciatic pain.  Mr Adams accepted that in this context the term “sciatic pain” was often used loosely and that there was scope for imprecision in the use of the terms “sciatic pain” on the one hand and “sciatica” on the other.  Thus, the term “sciatic pain” appeared in the pursuer’s general practitioner records in circumstances where, on the basis of the imaging available, there was no evident neurological cause for sciatica.  On my note of the evidence, Mr Kulkarni was only raising the possibility of such a diagnosis, as something which might reasonably be inferred, not least because amitriptyline a drug routinely used to combat sciatic pain, had been prescribed.

[54]      It was also brought out in the evidence that those with asymptomatic degenerative back conditions may be susceptible to the onset of symptoms by an apparently insignificant physical event, such as a sneeze, and that such patients were, in that sense, at risk.  While on the evidence that is no doubt true, such outcomes must necessarily depend on the extent and nature of the degenerative condition concerned.  It was not suggested that in every such case, where such minimal physical episodes occur, chronic back pain will inevitably ensue.

[55]      In fairness to both expert witnesses, it is to be recognised that the task required of them in the context of this action, that is to say the exercise of attempting to predict when an asymptomatic patient would begin to exhibit symptoms, is not one which would be required in normal clinical practice.

[56]      Having regard to the whole evidence, in circumstances where it is not clear that the particular facts and circumstances of the pursuer’s case are appropriately reflected in statistical averages, but where, rather, there are multifarious factors at play, demonstrated by the particular past medical history under examination, the nature of the trauma involved in the index accident and the resulting injury, his previous work record and the loss of his employment, and his depression and related domestic issues, I favour the more holistic approach adopted by Mr Kulkarni.  While it could no doubt be said that the extent of accelerated onset suggested by Mr Kulkarni might be impressionistic, I approach it on the basis that the exercise is not an exact science.  Having regard to the nature of the element of risk brought out in the evidence, viewed in context, I consider that a period of 18 months appears to be proportionate to the pre‑accident period of asymptomatic life, during which the pursuer’s activities were consistent with those of a manual worker and where at the time of the index accident, under reference to the third of Professor Waddell’s propositions, the pursuer was aged only 41 years.  In the whole circumstances, I see no basis to consider a lesser period other than for the purposes of identifying a compromise between the two differing periods suggested.  On my assessment of the evidence available, I see no reason to do that.  Accordingly, I find that the effect of the index accident was to accelerate, by a period of 18 months, the onset of a condition which the pursuer would in due course, in any event, have come to suffer.

 

The Evidence Relating to Quantum

The Pursuer
[57]      Since the index accident the pursuer’s symptoms have not resolved to any significant degree.  He is married, but separated from his wife.  He has a young son from that relationship.  Prior to the index accident, he had been an active parent who had engaged with his son by playing football with him, swimming, cycling, and sharing other activities in parks and playgrounds.  As a consequence of the accident he was unable to do any of that.  He found himself unable to interact physically with the boy to any extent.  In those circumstances, his partner, SH, had taken on that role.  As a consequence, his wife had stopped contact between the pursuer and his son.  Unsurprisingly, perhaps, the pursuer became and continues to be upset about that, and suffered and continues to suffer from low mood.  He had become prone to outbursts of temper through frustration.  He suffered insomnia as a result of pain experienced during the night.  At times he experienced suicidal thoughts, brought on by his inability to support his family financially.  He had previously always worked and had derived satisfaction from that.  He considered the actions of his wife, in preventing contact with his son, now aged 11 years, to be hurtful and that had contributed to his anger.  He had experienced guilt and had become upset when he found himself being irritable with the children in the care of himself and his partner.  He had attended pain clinics in the past and was conscious that his back was not getting better.  He had received counselling but had experienced periods of frustration and had been tearful in the past.  He had experienced anxiety headaches and ongoing depression.

[58]      Within the period of 18 months from the index accident, SH had helped him financially.  He has been in a relationship with her for almost four years and they have a daughter.  SH did not live with the pursuer on account of the preference of her daughter, from a previous relationship, to continue to live with her grandparents.  Nevertheless the pursuer’s relationship with SH was a very strong one, and he considered her to be the stabilising force in his life.  She had stood by him throughout. He had named her, formally, as his next of kin on his admission to Forth Valley Royal Hospital.  She assisted him physically, helping him to bathe and dress and by carrying out the necessary housework every day, and by cooking, shopping and gardening.  As the pursuer put it:  “she does almost everything”.  He felt that she had assisted him twice as much as she had done prior to the index accident.  In that regard, the pursuer indicated that he personally could not have done the things which SH had done for him. 

SH
[59]      SH, whom I found to be both credible and reliable as a witness, and who gave the clear impression that she was doing her best to assist the court, confirmed that she is the pursuer’s partner.  She confirmed that they have been in a relationship together for some three and a half years, and have a daughter who was born in February 2013.  They had been together in the relationship at the time of the index accident.

[60]      She described their relationship, prior to the index accident as being family oriented.  They had taken holidays together as a family and “everything had been really good”.  She had not lived with the pursuer under the same roof in order to accommodate the wishes of her daughter from a previous relationship, but the long term plan was that they would eventually live together.  That had been the subject of discussion between them.  Meantime, she felt that the wishes of her daughter, now aged 10 years, ought to be taken into account.

[61]      After the index accident, she had helped the pursuer financially by paying his rent.  She had assisted with his attendance at appointments, with his medication, and had supported him in his times of low mood.  As a result of the pursuer’s physical disability she had assumed full responsibility for the care of their daughter.  She had given up her own job in order to ensure that she was able to care for the pursuer, in addition to her own parents who were infirm.  She had provided financial and emotional support.  She confirmed that she assisted the pursuer with dressing, bathing, and with his general care.  She did all of the housework, which prior to the accident had been shared between them, and all of the gardening which prior to the accident had been shared.  She estimated that, on average, the time she expended assisting the pursuer amounted to some four to five hours per day over and above what would have been the case prior to the index accident when each had contributed to the household.

Quantification of Damages

Solatium

[62]      Consistent with my decision on the issue of causation, I assess the pursuer as having suffered, for a period of 18 months, the significant, severe, painful and disabling consequences of the index accident in the form of chronic back pain, restricted movement and an associated decline in his mental health. 

[63]      I was referred to the Judicial College Guidelines (13^th edition) and, in relation to back pain, to Lyons v Wm Morrison Supermarkets Plc 2010 Rep LR 90;  Fraser v Greater Glasgow Health Board 1997 SLT 554;  Gallacher v Lanarkshire Health Board 1999 SLT 166;  and Moohan v City of Glasgow Council 2003 SLT 745.  The figure suggested on behalf of the pursuer in respect of solatium was £12,000.  Taking a broad axe approach and assessing the effect of the pursuer’s back pain, depression and the more minor injuries involving his heel and elbow, in the round, but moderating the quantification proportionately to account for the limited period involved, I consider that figure to be an appropriate one.  Interest to date on that figure amounts to £1,051.

 

Past Wage Loss
[64]      It was agreed that the pursuer’s average net weekly wage prior to the index accident was £369, that with effect from 1 October 2014 his basic weekly wage was increased by the rate of 4% to £384 net, that with effect from 17 November 2014 it was further increased by the rate of 3.5% to £397 net, and that he received £3,626 from the defenders as sick pay during his period of absence from his employment with them. 

[65]      The calculation submitted by the pursuer in respect of the referable period of 18 months appears to indicate an arithmetical error, arising from a misstated date in respect of the second of the pursuer’s wage increases, and does not take into account the figure in respect of sick pay received by him, whereas the calculation submitted on behalf of the defenders does appear to reflect accurately the terms of the agreed Joint Minute in these regards.  On that basis, I adopt the defenders’ calculation which brings out a figure of £26,655.  I calculate interest on that figure to be £2,335.

 

Pension Loss
[66]      It was agreed that the pursuer’s loss of pension as a result of the index accident was £680. 

 

Necessary Services Rendered to the Pursuer:  The Administration of Justice Act 1982, Section 8.

[67]      The pursuer claimed damages in respect of the services rendered to him by SH, his partner.  The terms of the section concern services rendered by “a relative”, a term which is defined in section 13(1)(b) of the Act as: 

“any person, not being the spouse of the injured person, who was, at the time of the act or omission giving rise to liability in the responsible person, living with the injured person as husband or wife”

 

An issue in the case was whether SH fell within that definition.

[68]      In the course of submissions for the defenders, it was maintained that since the pursuer’s pleadings included no reference to the basis on which it could be said that she did fall within that definition, his claim in this respect was both irrelevant and incompetent.  Against that, the evidence as to SH’s involvement and the extent of her relationship with the pursuer was elicited without objection, and she was described in the pursuer’s averments as “his partner”, which, according that term in context its ordinary and commonplace meaning in contemporary language, I consider to provide sufficient notice to establish, in this respect, a relevant case. 

[69]      As to the matter of competency, I was referred to several authorities.  Significant matters to be taken into account in determining whether a couple are living as man and wife include:  the manner in which the couple lived together and their reason for doing so;  the extent to which the couple were committed to the relationship and the extent of the time they spent together;  whether assistance was provided in intimate respects;  and whether, where relevant, there was assistance in building up self‑esteem (Paterson v Paterson 2013 Rep LR 13, at paragraphs 44, 45.  Where the relationship is no more than provisional, the requirement of living as man and wife will not be met (McPake v SRCL Limited 2014 Rep LR 41, at paragraphs 77, 78).  The hallmarks of a family unit are “a degree of mutual interdependence, the sharing of lives, of caring and love, of commitment and support” and the term “family” connotes essentially “some grouping, usually of persons who were connected with each other, by some particular bond” (Telfer v Kellock 2004 SLT 1290, 1294 B).  In the context of whether people are or were living together as husband and wife: 

“working out whether a particular couple are or were in such a relationship is not always easy.  It is a matter of judgment in which several factors are taken into account … What matters most is the essential quality of the relationship, its marriage‑like intimacy, social and financial interdependence … the presence of children is a relevant factor in deciding whether a relationship is marriage‑like …” (Ghaiden v Godim‑Mendoza [2004] 2 AC 557, per Lady Hale, at paragraphs 139, 141).

 

[70]      For the defenders, reference was made to observations by Lord Stewart in McPake, at paragraph 78, to the effect that, in that case, it had been significant that there had been no evidence of an exchange of rings, nor any evidence about financial support, shared bank accounts, shared hire purchase commitments, or anything of that kind.  That could also be said of the pursuer’s case.  I was also referred to Lawrie v Lanarkshire Health Board 1994 SLT 633, in which a claim under section 8 was excluded on the basis that the pursuer’s girlfriend, notwithstanding that she had provided the bulk of the assistance rendered, had lived apart from him at the time. 

[71]      In this context, the evidence in the case which I accept is that the pursuer and SH had been in a relationship since about November 2012;  their daughter was born on 27 November 2013;  although at the material time, the date of the index accident, the pursuer and SH did not reside under the same roof, the reason for that was her decision to accommodate the wishes of her daughter, aged 10 years, from her previous relationship;  that her daughter had a strong relationship with the pursuer and regularly spent time at his home;  that the long term intention of both the pursuer and SH is that they will reside together;  that the pursuer named SH as his next of kin on the day of the index accident;  that she visited his home daily, and contributed to the household by assisting him in bathing and dressing, and attending to housework, cooking, gardening and shopping;  that she supported him emotionally and financially;  and that the relationship was committed and stable.  Although the increase in her contribution to the household occurred after the index accident, the fact that it happened gives rise to a legitimate inference to be drawn as to the nature and depth of their relationship prior to that time. 

[72]      In these whole circumstances, I am satisfied that, as it was put by Lord Woolman in Paterson:  “The quality of the relationship (is) such that it could … properly be characterised as being akin to marriage”.  On that basis, having assessed the matter against the background of the social norms of contemporary modern life, I find that SH falls within the definition of section 13(1)(b) of the 1982 Act.

[73]      As to quantification, I was referred to Farrelly v Yarrow Shipbuilders Limited 1994 SLT 1349, for the proposition that the rendering of emotional support is a necessary service within the meaning of section 8, and, in relation to the computation of hours and appropriate hourly rates, to Facts and Figures, Tables for the Calculation of Damages (2015/16 Edition), Chapter K1:  Care and Attendance, The National Joint Council Payscales ‑ Spinal Column Part 8, and the decision in the case of Wylie v Omniasig SA (2012) CSOH 128. 

[74]      Having regard to these materials, I regard the approach submitted on behalf of the pursuer as being reasonable in the circumstances.  I therefore allow two hours per day in respect of the services rendered by SH, at the rate of £7 per hour, over 78.5 weeks, bringing out a total of £7,686, with interest accrued of £673. 

 

Decision
[75]      In the result, for the reasons I have stated, I shall award the following amounts in respect of the various heads of damages: 

Solatium:  £12,000, plus interest of £1,051;

Past wage loss:  £26,655, plus interest of £2,335;

Pension loss:  £680;

Section 8 services:  £7,686, plus interest of £673.

I therefore award total damages in the sum of £51,080.

[76]      I have reserved all questions of expenses.