FENRIR THORVALDSEN AGAINST DUNDEE CITY COUNCIL [2021] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2021] CSOH 120

PD329/20

OPINION OF LORD HARROWER

In the cause

FENRIR THORVALDSEN

Pursuer

against

DUNDEE CITY COUNCIL

Defenders

Pursuer: Galbraith QC; Drummond Miller LLP

Defenders: J Nicholson; Gillespie Macandrew LLP

2 December 2021

Introduction

[1]

The pursuer is employed by the defenders as a teacher at Craigie High School in

Dundee. On 22 August 2017, while in the classroom, he was struck on the head by a

wooden partition, knocking him to the floor and rendering him briefly unconscious. In this

action, in which the pursuer seeks to recover damages from his employer, liability is

admitted, and the sole issue is the extent to which the pursuer's injuries were caused by the

accident. The pursuer claims to have suffered a concussive head injury, followed by

dizziness and confusion, debilitating headaches, and ultimately an exacerbation of his poor

mental health, characterised by him in these proceedings as a recurrent depressive disorder

and a somatic symptom disorder, from which he continues to suffer. The defenders say that

the pursuer's injuries were limited to a concussive head injury and associated post -

concussion symptoms, all of which resolved themselves within a period of about 7 weeks

following the accident.

[2]

The proof had been set down for 4 days, to proceed entirely by means of the Webex

platform. In the event, as a result of frequent interruptions caused by technical difficulties,

the proof required to be split over 7 days, with the evidence concluding on 10 June 2021. I

am grateful to both parties and all the witnesses, for their forbearance. Having regard to the

extent of the overrun, parties invited me to dispense with oral argument and to require

written submissions. I agreed to that on the understanding that each party would include in

their assessment of damages an estimate of what, alternatively, the appropriate award

should be, were I to uphold the hypothesis of fact put forward by the other. Parties'

submissions were lodged on 18 June 2021.

The evidence

[3]

Senior counsel for the pursuer led the following witnesses, in addition to the pursuer

himself: Ewa Bieniecka, the pursuer's partner at the time of the accident; Craig Robertson,

the pursuer's colleague at a charitable organisation he set up to promote the pursuit of

mixed martial arts; and the pursuer's GP, Dr John Kennedy. Counsel for the defenders led

evidence from members of the teaching staff at Craigie High School: Jim Gill, Depute Head

Teacher; Ellen Smith, Principal Support for Learning Teacher; and Andrena Waghorn,

Head Teacher. Except where I have specifically noted reservations regarding their evidence

in this opinion, I am prepared to treat all the witnesses as generally credible and reliable, at

least as regards those issues which were relevant to my decision.

[4]

My principal difficulty related to the evidence of the pursuer, whose persistent

headaches, if they had an organic basis at all, could not be traced to any neurological injury

sustained as a result of the accident. As a result, there was no objective clinical basis, such as

might be provided by an X-ray or a scan, to determine the basis for the existence of his pain,

its origins or its extent. This is not to cast doubt on the pursuer's own experience of pain,

but it does mean that it becomes all the more important to test the pursuer's evidence

against the contemporary records, including the medical records, particularly where, as in

this case, the question of timing is all important.

[5]

With that in mind, I did not find the pursuer an altogether reliable historian. For

example, the A&E notes recorded the pursuer as presenting with pain at the "point of

impact", whereas the pursuer in evidence described the initial pain as throbbing pulses from

the base of his neck to the front of his head, gesturing with his hand from the back of the

right hand side of his head to the front. I also found the pursuer, who kept himself fit, to be

rather vague about how often he went to the gym after the accident: "I don't know how

frequently I was going", he said in evidence, "there were one or two occasions I went back,

just to test out if I could do it". But in the GP notes for 25 September 2017, he was described

as going to the gym two nights per week. Following his interview with the defenders'

expert psychiatrist, Dr Cockayne, she noted that the pursuer was unable to describe when

his headaches first appeared after the accident. That issue was not clarified in evidence.

Moreover, when examined in relation to various points in time at which he attended his GP

but made no complaint of headaches, he frequently stated that he was "still having

headaches every day", almost as if he considered it should be taken as given that headaches

had become a more or less constant feature of his everyday life after the accident.

[6]

I accept that the pursuer would not necessarily be motivated to attend his GP, just

because he had a headache, even a severe headache. Indeed, there are GP records for the

pursuer going back as far as 2007 which indicate that the pursuer had simply learned to

cope with his headaches as no obvious answer to them had emerged. However, where he

was attending his GP's surgery in any event, in connection with other matters, I would have

expected headaches to have been mentioned and noted, if those were something from which

he was suffering at the time. Instead, I found that the medical records, and the evidence of

the pursuer's GP, Dr Kennedy, did not reveal someone consistently presenting with intense

headaches in the days and weeks, or even months following the accident. The records do

however show that the pursuer began consistently to present with headaches from about

March 2018, some 6 months after the accident.

[7]

The pursuer also struck me as having a tendency, perhaps understandably, to

attribute all his present difficulties to the accident, and to minimise the difficulties he was

having, including his experience of headaches, prior to the accident. So, for example, in the

GP records for 4 September 2017 he was described as stating that his last episode of

migraine had been 10 years previously. In his evidence, however, while initially confirming

that this entry was correct, he later conceded in cross-examination that it was incorrect, and

that he would have had two or three migraines a year. The pursuer also said in evidence

that the first Botox injection he had received for his headaches was in 2020, whereas the

evidence of Ellen Smith, which I accept, was that he had informed her, before the accident,

that he was already at that time receiving Botox for his headaches. Again, the pursuer stated

on record that he had run a charity gym in Dundee, but had had to give that up because of

the accident (p8A-B of the record). However, elsewhere he has stated that he had "handed

over the reigns [sic]" of the charity to a committee, as he had "got very little from it

[him]self" (7/1/49 of process). He was happy to concede that, in the period after the

accident, he "wasn't very good" at his job and lacked the patience necessary to deal with

difficult pupils, attributing that to his headaches. However, he was more reluctant to accept

that this might also have been true prior to the accident when he had experienced difficulties

at work. Already in January 2017, he was considering a change in career (GP records for

16 January 2017).

[8]

In my understanding of the medical records, I was greatly assisted by the evidence of

Dr Kennedy, the pursuer's GP. Senior counsel for the pursuer submitted that his evidence

was only of limited assistance, since it was "restricted to considering documentation

provided by others". Given that Dr Kennedy was most acquainted with the pursuer's

medical history, based on many face-to-face consultations dating back to 2011, I found this a

rather startling submission. The pursuer himself acknowledged that Dr Kennedy knew him

well, and he trusted Dr Kennedy's opinion. Senior counsel went so far as to describe

Dr Kennedy as "relatively evasive and unwilling to accept basic propositions". She

criticised his lack of specialist qualifications in the diagnosis of headaches "as an organic

condition", and, in her examination in chief, she directed a whole line of questioning at his

lack of specialist qualifications in psychiatry which, she contended, would be necessary for

the diagnosis and treatment of "functional" headaches. However, as Dr Kennedy pointed

out, patients frequently attended at his surgery complaining of headaches; headaches do

not present themselves already classified as "organic" or "functional"; and it is the job of

the GP in the first instance to provide a diagnosis and treatment: 25-50% of Dr Kennedy's

training had a psychiatric component. In summary, I was not persuaded by any of these

criticisms, and I accepted Dr Kennedy's evidence in its entirety.

[9]

I acknowledge that the pursuer's account was supported to some extent by his

former partner, Ewa Bieniecka. But while I had no reservations about her credibility, I

found that she too was vague on matters of timing, perhaps understandably so, since during

much of the relevant period, she was working intensively on completing a doctoral

dissertation in mathematics, sometimes up to 12 hours a day, until it was finally submitted

in November 2017. Perhaps as a result, and by way of illustration, she was unable to

recollect the pursuer's prolonged absence from work between September 2016 and

February 2017, despite the fact that their relationship had started, she said, in August 2016,

and she was living with him for at least part of that period. She herself conceded in her

evidence that she couldn't be relied on as regards the timeline. And she also conceded that

the pursuer had a tendency not to be frank with her about the pain he was experiencing.

She thought he underestimated it, which in one sense might be regarded as in his favour,

but it did cause me to have doubts about the extent to which I could rely on her evidence,

particularly in relation to his pre-accident headaches and the extent to which they could be

said to have been made worse by the accident.

[10]

In addition to these witnesses to fact, I heard expert psychiatric evidence from

Dr Deepa Tilak, consultant psychiatrist and psychotherapist at Perth Royal Infirmary, and

Dr Lucinda Cockayne, consultant psychiatrist at St John's Hospital, Livingston.

Dr Cockayne had expertise as a "liaison" psychiatrist, that is, a psychiatrist specialising at

the interface between physical and mental health, and as an addiction psychiatrist. In

addition, she had been a GP for 5 years at an earlier stage in her career. For the reasons I

have given below, I preferred the evidence of Dr Cockayne, and accepted her evidence

rather than that of Dr Tilak, where their opinions diverged.

Objections

[11]

A number of objections were taken during the course of the proof. In each case I

allowed evidence to be elicited subject to relevancy and competency. In the event, the only

objection insisted upon in submissions was one taken by senior counsel for the pu rsuer.

That was to the relevance of evidence led by the defenders of pre-accident incidents at work

involving the pursuer. These occurred after his return to work in February 2017 following a

bout of depression. Senior counsel for the pursuer conceded that there were averments on

record at p13A-B relating to these matters. Indeed, she had explored them herself with the

pursuer in his examination in chief. However, she was concerned that the defenders might

be attempting to attribute the pursuer's post-accident absence from work to his pre-accident

"performance or behaviour", implying that the pursuer had fabricated or exaggerated the

symptoms from which he suffers. This, she said, had never been put directly to the pursuer

in cross-examination.

[12]

It is true that, in her submissions, counsel for the defenders asked me to find that the

pursuer was already in 2017 not committed to teaching and not enjoying his job. However,

as I understood her, she did not seek to imply that this was directly the reason for the

pursuer's absence from work after the accident, or even that he was not now genuinely

suffering from depression. Rather, her argument was that, by April 2018, the pursuer had

relapsed into depression, as a result of a combination primarily of renewed stress at work

and in his relationship. In my view, it would be a mistake to ignore the pursuer's pre-

accident difficulties at work when considering the stresses to which he appears to have

succumbed in April 2018. Indeed, the pursuer's evidence was that these earlier concerns

had all been discussed at a meeting he attended with Andrena Waghorn on 28 June 2017.

After that, he believed it was all over: "for me", he said, "it was done". But just because he

considered these pre-accident concerns to have been fully resolved, it would be

understandable if he found it all the more frustrating that he was not being adequately

supported at work following his return or at least that he perceived that to be the case

("Gone from 9 to 2 members of staff in a failing school", Dr Kennedy noted him as saying on

5 April 2018): it is unnecessary for me to make any findings as to whether or not that

perception was well founded. Seen in this way, what happened in 2017, before the accident,

remains highly relevant to the pursuer's state of mind in 2018, and to the issue between the

parties of whether the pursuer's depression can be said to have been caused by the accident.

On that basis, I repel the pursuer's objection.

The relevant facts

[13]

The parties agreed certain facts by joint minute and a chronology extending to some

24 pages (numbers 23 and 24 of process). Without repeating the content of these documents

here, I have taken them into account, along with the rest of the evidence, in arr iving at the

following findings in fact.

The pursuer

[14]

The pursuer was born in Rochdale on 27 April 1974. In 2000, after graduating in

marine biology from Liverpool University, and obtaining a teaching qualification from

Aberystwyth University, he moved to Scotland. He has been employed by the defenders as

a teacher since 18 October 2000 and, since 4 June 2010, as a Teacher of Learning Support at

Craigie High School, Dundee. He is a keen exponent of mixed martial arts, which he helped

to make more accessible to young people in Dundee through a charitable organisation set up

for that purpose. The pursuer has suffered from depression from time to time throughout

his adult life and probably earlier. In February 2017, he changed his name to Fenrir

Thorvaldsen. This coincided with his recovery from, and return to work following, a bout of

depression in which he had been struggling to cope with a number of stressful events.

These included breaking up with his partner of about 19 years, and the death of his mother.

This is described in more detail below. By January 2017, however, he had entered into a

new relationship, with Ewa Bieniecka. They moved in together, initially taking up rented

accommodation, before settling into his late mother's house. In June 2018, they were

married, though stresses had already appeared in their relationship by April of that year. In

January 2021, they separated. The pursuer has had no children with either Ewa Bieniecka,

or with his previous long-term partner.

2003-2006: Depression and headaches

[15]

Between 2003 and 2006, the pursuer was seen by his GP in connection with

depression and persistent headaches and was referred to a number of specialists, including a

consultant psychiatrist, a neurologist and consultant occupational health physician. The

pursuer's description of his headaches at that time was noted by his GP as being "sharp

pains behind both eyes", preceded by an aura and a feeling of stuffy head followed by

bilateral frontal headache. This is broadly consistent with the pursuer's description in

evidence of his current headaches. Medical opinion seemed to confirm that his headaches

had no organic basis, and a

n MRI report in February 2005 disclosed no injury to the

brain

. In 2005, Dr Baldacchino, a consultant psychiatrist and specialist in addiction,

expressed concerns that the level of codeine the pursuer was taking may have been

exacerbating his headaches.

[16]

The pursuer was off work for 6 months but in April 2005, he returned to work part

time, and struggled to cope with controlling a group of students.

The pursuer expressed

the view to his consultant psychiatrist that in the long run he would have to look at

an alternative career. In June 2006, his GP noted that that the pursuer's complaint of

"migraine" headaches was "[the pursuer's] diagnosis, not mine", and that he was

going to have headaches "regardless of job or hours worked". By 2007, the pursuer's

mood was reported as being "less problematic these days" and he is said to be

learning to cope with his headaches "as no obvious answer to these [had] emerged".

2016: Adjustment reaction and anxious mood

[17]

Between the beginning of September 2016 and the end of January 2017, the pursuer

attended his GP complaining of low mood. A number of stressful events had occurred: his

mother had been diagnosed with terminal cancer and died in December 2016; a sibling was

diagnosed with a serious illness; he had also split up with his partner of 19 years. Noting

that he was bearing a "heavy mental health work load", Dr Kennedy diagnosed the pursuer

as having an "adjustment reaction with anxious mood", and signed him off from work. By

January 2017, Dr Kennedy reported that he "[seemed] to be adjusting", with the pursuer

himself stating he was "more in control"; he had a "new girlfriend" (probably

Ewa Bieniecka, though neither she nor the pursuer were very clear in their evidence as to

when precisely that relationship started). Dr Kennedy's notes for 16 January 2017 described

the pursuer as worried about his level of patience when working with children with

behavioural issues. However, the pursuer was well enough to begin a phased return to

work from February 2017, albeit that Dr Kennedy had noted that a "change of job" was

something to be considered by the pursuer "over coming months". By March 2017,

Dr Kennedy recorded that the pursuer was "back in school" and his "mood OK".

2017: Return to work and the months immediately preceding the accident

[18]

Following his return to work in February 2017, the pursuer experienced a number of

difficulties: he was confronted with complaints about his arriving late for class, being

disengaged and interacting little with pupils, writing in a notebook or using his phone in

class, refusing to take a class when another teacher was absent, and speaking

inappropriately about fighting in front of pupils. It is not necessary for me to make any

findings as to the rights and wrongs of these matters, but I do find that they were a source of

stress for the pursuer between February and June 2017, and themselves contributed to, even

if they were not themselves symptomatic of, a decline in the pursuer's commitment and

morale. During this period, the pursuer was taking painkillers, which he kept in his car. He

told Ellen Smith he was having Botox injections to deal with his headaches.

[19]

Between 10 March 2017 and the accident, the pursuer did not attend Dr Kennedy's

surgery again with any complaints of low or anxious mood. His anti-depressant

medication was reviewed on 2 June 2017, with Dr Kennedy noting, "hopes to wean in due

course". A doctor would not be planning to wean a patient off anti-depressant drugs if the

patient were still actively depressed, but a prescription will usually be continued to

minimise the risk of a relapse. Typically, the first episode of low mood would be treated

with anti-depressants for 6-9 months; a second episode, for 2 years; and a third, for 5 years.

In the pursuer's case, since he had already suffered a significant period of depression

between 2003 and 2006, it was reasonable for him to be prescribed anti-depressants for

between 2 and 5 years. The pursuer himself considered he was not depressed prior to the

accident.

[20]

In the summer of 2017, the pursuer visited the GP surgery on several occasions

regarding hypertension. During a review of his hypertension on 2 June 2017, the pursuer

took the opportunity of mentioning his headaches.

22 August 2017: The accident

[21]

On 22 August 2017, while in a classroom, the pursuer was struck on the head by a

wooden partition. The pursuer fell off his chair on to the floor. He was rendered

unconscious for 5-10 seconds. He experienced nausea, vomiting and dizziness. Paramedics

attended and assessed the pursuer. His Glasgow Coma Score ("GCS") was 15/15 indicating

no head injury. The pursuer was advised not to drive that day, to rest over the weekend and

to go to hospital if he felt worse. The pursuer was collected from school and taken home.

Later that day, the pursuer attended A&E at Ninewells Hospital, Dundee. He was assessed

(his GCS again being 15/15) and discharged home with advice to rest. The A&E consultant

advised the pursuer he was likely suffering from concussion, and advised him to take

Paracetamol and Ibuprofen instead of Co-codamol.

Post-concussion syndrome and recovery

[22]

In the days and weeks immediately following the accident, the pursuer was off work

and attending regularly at his GP's surgery. Between the date of the accident and 6 October

2017, eight visits were recorded, in which the pursuer presented with a variety of

complaints, including dizziness, particularly in the morning, nausea, vomiting, and

tiredness. On 29 August 2017, he reported "no chronic daily headache". But by 4 September

2017, he was having migrainous headaches "on and off", "up to 3 times per day". The

pursuer had previously suffered from migraine but stated that he had not had an episode

for 10 years, although this was untrue. He now felt "as though he [was] having these

again". On 15 September 2017, he was still reporting a "morning headache", and had

continuing problems with his balance. But by 25 September 2017, 6 weeks after the accident,

though he was still complaining of feeling "sea sick" and being tired, he was not reporting

any headache. He was well enough to be going to the gym "2 nights per week", and had

even coached a martial arts session on 12 September 2017. By 6 October 2017, 7 weeks after

the accident, the pursuer was "at last feeling normal". His balance had returned.

"Difference in a day was remarkable", recorded Dr Kennedy. The pursuer was allowed to

return to work and exercise. Dr Kennedy's "clear memory" of this consultation was of a

feeling of "relief and progress". He said the pursuer had "no hesitation about going back to

work". Ewa Bieniecka had been supporting the pursuer's recovery during this 7 week

period.

[23]

Between 6 October and 4 December 2017, the pursuer made no visits to his GP. He

returned to work. He got back into mixed martial arts. On 4 December 2017 he was seen by

Dr Kennedy. The headings in the GP records indicate that the "head injury" was being

reviewed at this time, but Dr Kennedy explained that this consultation was about the

pursuer's overuse of Co-codamol. "Headache" would have been a more accurate

description for this entry, as the pursuer had more than one reason for his headaches.

[24]

In the beginning of January 2018, the pursuer visited Dr Kennedy after his partner

had noted he was slurring his speech. The pursuer had been "pretty exhausted", having

driven back to the UK from Poland. Dr Kennedy referred the pursuer to Ninewells Hospital

for a TIA scan, which revealed no abnormality.

[25]

On 12 March 2018, the pursuer complained to Dr Kennedy that he couldn't "shake

these headaches". They affected the right side of his head and his speech. He had "visual

flashes". They could be incapacitating and could occur once or twice a week.

Recurrence of depression

[26]

On 5 April 2018, Dr Kennedy noted the following: "Lack of enjoyment. Relationship

pressured. Less active. Gone from 9 to 2 members of staff in a failing school. Given up on

fighting. Has done counselling. Not sleeping. Relapse of mood." This was the first time

the pursuer had complained to his GP of low mood or depression since 10 March 2017.

Dr Kennedy noted no increase in frequency of the pursuer's headaches.

[27]

On 23 April 2018, Dr Kennedy signed the pursuer off work, noting that he was

"[s]truggling with his work" and complaining of a "[l]oss of patience". The pursuer's

headaches were now occurring "most days".

[28]

On 10 May 2018, Dr Kennedy noted the pursuer was now "focused on his

headaches" and that he recognised that there may be a "functional component" to them.

Dr Kennedy referred the pursuer to a specialist in mental health to "help him develop

strategies to optimise his mood for the longer term, particularly given his recurrent

disposition [to low] mood and anxiety". In the letter of referral, Dr Kennedy summarised

his understanding of the pursuer's relevant medical history as at that date. He noted that

the pursuer suffered a head injury in September 2017 "which took a number of months to

fully recover [from] though ultimately he did".

[29]

At the end of May 2018, the pursuer went on a yoga retreat with his partner, but

reported a feeling of "guilt", since this was during the exam season, when his colleagues

would likely be very busy. On 14 June 2018 the pursuer attended his GP "feeling a bit

better", and asked for a phased return to work to take him up to the end of term. He was

once again "[t]hinking about his long term career in teaching". The pursuer returned to

work on 16 June 2018. He married Ewa Bieniecka on 21 June 2018 but, even on what should

have been a happy day, his mood was low. Over the summer the pursuer continued to

present with migrainous headaches, noted to be causing him "pain from back of neck to

face/loss of vision/sometimes [affecting] speech/altered taste". On 16 August 2018, he

reported to Dr Kennedy that he was "not able to focus on the [a]utistic children with his

migraine", and that he was "speaking to Union re possible alternative role". On that date he

was signed off from work by Dr Kennedy. He has not returned.

[30]

The pursuer has continued to suffer from migrainous headaches, low mood and

depression.

Expert evidence

[31]

Dr Tilak used the 5th edition of the Diagnostic and Statistical Manual of Mental

Disorders, published by the American Psychiatric Association (DSM-5). In her opinion, the

pursuer suffered from both a recurrent depressive disorder and a somatic symptom disorder

with predominant pain. Somatic symptom disorder is diagnosed when a person has one or

more somatic symptoms that are distressing or result in significant obstruction of daily life,

and has excessive or disproportionate thoughts about the seriousness of one's symptoms,

persistently high levels of anxiety about health or symptoms, or devotes excessive time and

energy to health concerns.

[32]

Dr Tilak maintained that the pursuer was in a state of depression prior to the

accident. Although she acknowledged that his mood had improved earlier that year, by the

summer of 2017, it had deteriorated again and there were "associated" concerns about his

blood pressure, persistent visual difficulties and migraines. In her oral evidence, she

explained that she did not consider the pursuer was ever in remission, remission being

defined as a sustained period of at least 2 months of being symptom-free. Cross-examined

specifically about the GP records from June 2017, she asked rhetorically why, if the pursuer

was in remission, he was still at that stage on anti-depressants.

[33]

Dr Tilak was of the view that, "since [the accident], [the pursuer] had been even

more troubled with migraines", adding that "[t]here is a note of poor concentration, low

mood, low motivation and a general loss of interest in things that had previously energised

and motivated him such as keeping fit, his charity and teaching at school" (paragraph 7.7 of

Dr Tilak's report). When she interviewed the pursuer, for approximately two hours in

November 2019, 18 months after the accident, he was anxious and depressed. This marked a

change from his previous pattern of "bouncing back" from adversities. Instead, "the trauma

of the accident at work has led to a deterioration in his mental and physical health, now

preventing him from returning to work over a much more prolonged period of time"

(paragraph 7.12 of Dr Tilak's report). In addition, the lack of any adequate medical

explanation for his migraines, together with his preoccupation with his symptoms and the

degree of distress experienced by him suggested the likelihood that he was suffering from

somatic symptom disorder. In Dr Tilak's opinion, looking back at the pursuer's medical

history, he should properly be regarded as already suffering from both a recurrent

depressive disorder and somatic symptom disorder prior to the accident, but the accident

exacerbated both of these conditions.

[34]

Dr Cockayne preferred to use Chapter V of the tenth revision of the International

Classification of Diseases (ICD-10), dealing with mental and behavioural disorders, as her

diagnostic tool, but she and Dr Tilak were agreed that nothing turned on this for the

purposes of the proof, since for each of the diagnostic categories referred to by Dr Tilak there

were directly analogous categories within the ICD classification system: recurrent

depressive disorder and somatoform disorder. (I note in passing that there are several

versions of ICD-10, Chapter V, published for different purposes, and that Dr Cockayne was

working from the so-called "Blue Book", titled "Clinical Descriptions and Diagnostic

Guidelines", intended specifically for "general clinical, educational and service use".)

[35]

Dr Cockayne examined the pursuer on 23 September 2020, and made a diagnosis of

relapse of recurrent depressive disorder with current (ie at the time of examination)

moderate depressive episode with somatic syndrome. In her opinion, the pursuer had "by

April 2018" suffered a relapse of his depressive mood disorder. The pursuer himself had

described a return to full function, following the bout of depression in 2016/2017, with no

significant symptoms immediately prior to the accident. It was not a case of the accident

having exacerbated pre-existing symptoms. Further, given the significant period of time

elapsing between the accident and the onset of his depression in April 2018, during which

period his GP had supported a phased return to work, the pursuer's relapse into depression

could not be attributed to the accident with any degree of certainty.

[36]

There was no basis for a diagnosis of somatoform disorder, the ICD equivalent of

somatic symptom disorder. ICD-10 defined this as "repeated presentation of physical

symptoms, together with persistent requests for medical investigations, in spite of repeated

negative findings and reassurances by doctors that the symptoms have no physical basis".

In Dr Cockayne's opinion, the pursuer had not pressured for unnecessary investigations and

was very open to psychological treatment if recommended.

Submissions

[37]

I was favoured with detailed written submissions from counsel for both parties.

These are numbered 26 and 27 of process. I will only provide brief summaries here.

[38]

Senior counsel for the pursuer submitted that the clear and unchallenged evidence

from the pursuer was that he had developed and continued to suffer from headaches since

the accident. They deteriorated over time, and he has become preoccupied with them to the

extent that they dominate his life. She asked me to accept the opinion of Dr Tilak, and

certainly to prefer it over the opinion of Dr Cockayne. Senior counsel offered many

criticisms of Dr Cockayne. She lacked expertise in medico-legal work. She made little if any

reference to the pursuer's documented medical history. Her report lacked precision and

clarity in relation to the all-important timeline of his depression. She had misread the GP

records, failing to pick up an increase in the pursuer's prescribed dose of anti-depressants in

March 2017. Although Dr Cockayne accepted in her evidence that the pursuer had

persistent thoughts and high levels of anxiety about his headaches, she insisted on the need

for the pursuer to have been pressing for "unnecessary" investigations, even though this

was not a diagnostic criterion for somatoform disorders.

[39]

Counsel for the defenders submitted that the pursuer had made a full recovery from

his head injury by 6 October 2017 at the latest. He had not been depressed for some months

prior to the accident. He suffered a relapse of his depression in April 2018 as a result of

relationship pressures and stress at work. He had already had difficulties at work in 2017,

and these resurfaced in April 2018, following his return to full time work after the accident.

Counsel criticised Dr Tilak's evidence for relying too heavily on the pursuer's own account

and not testing it against the pursuer's documented medical history. Her analysis of the GP

records, such as it was, made no reference whatsoever to the entry for 6 October 2017, when

Dr Kennedy considered the pursuer had recovered from the head injury. She had been

selective in her use of the occupational health records. She referred to the pursuer having

had an absence from work in September 2016, apparently unaware of his prolonged absence

from September 2016 until February 2017. Dr Tilak's opinions tended to be overly

speculative, for example, her suggestion that it was "entirely possible" that the pursuer

carried a "sense of vulnerability" which had been exacerbated by the head injury. Dr Tilak

maintained that the lack of an adequate medical explanation for the pursuer's migraines was

an important factor in diagnosing somatic symptom disorder, but also appeared to indicate

that she would stand by that diagnosis even if it turned out that there was an adequate

medical explanation for his migraines. Counsel urged me to accept Dr Cockayne's evidence

and to reject the diagnosis of somatic symptom disorder, as not being supported by the

medical records. Even if the pursuer had such a disorder prior to the accident, it was not

exacerbated by the accident.

Decision

Loss, injury and damage

[40]

I accept that the pursuer suffered, for some weeks following the accident, from

symptoms such as concussion, dizziness, nausea and vomiting, sometimes referred to as

"post-concussion syndrome". Dr Kennedy distinguished helpfully between primary and

secondary brain injury. The symptoms experienced by the pursuer were consistent with the

shaking and displacement of neurons that were typical of primary brain inju ry. It was not

unusual for the consequences of a primary brain injury not to resolve themselves for several

weeks. There was no evidence of any secondary injuries, such as bleeding to the brain.

[41]

While it is difficult to be precise about when this period of post-concussion

syndrome came to an end, Dr Kennedy had been carrying out careful reviews of the

pursuer's condition in the weeks immediately following the initial head injury. It is

inherently unlikely that he would have allowed the pursuer, on 6 October 2017, to return to

work and exercise, had there been any significant residual symptoms of post-concussion

syndrome.

[42]

None of the pursuer's other complaints, including his headaches, have been proved

on a balance of probabilities to have been caused or exacerbated by the accident. The

pursuer was already suffering from headaches prior to the accident, and was taking

painkillers in relation to these. He would have been aware from concerns that had been

expressed in 2005, that codeine could have exacerbated his headaches. These concerns were

repeated to him when he attended A&E shortly after the accident, and again, in

December 2017 by his pharmacist (see the GP notes for 4 December 2017).

[43]

Nor do I find it proved on a balance of probabilities that the pursuer was consistently

suffering from debilitating headaches during the period when he was suffering post -

concussion syndrome, or in the months immediately following his recovery from that

syndrome. By 6 October 2017 he was "at last feeling normal", and whatever his experience

of headaches at this point, they were not so debilitating as to prevent his return to work or

his return to training. In the pursuer's own words, he was at this time "very busy, running

his charity, doing related things, working, and discussing future plans with his partner".

[44]

In summary, the pursuer suffered from headaches before and after the accident; he

has not established that his headaches were worse after the accident; and, to the extent that

they were worse, he has not established that they were made worse by the accident, as

distinct from some other cause, such as his use of codeine contrary to medical advice.

[45]

So far as the pursuer's depression is concerned, it is highly likely that he suffers from

bouts of depression on a recurrent basis. He had experienced a sustained period of low

mood and anxiety in 2016-2017, from which he had recovered a considerable time prior to

the accident. It was not until April 2018 that he suffered a relapse, as a result of a

combination of stresses, primarily the resurfacing of pressures at work, and pressures in his

relationship with his partner. He had already succumbed to similar pressures in 2017, and

indeed in 2005. Even applying Dr Tilak's own test for remission, which required a period of

at least two months of being symptom-free, I consider that the pursuer was "in remission"

both prior to the accident and for a sustained period after the accident. It cannot be said that

the accident exacerbated a condition from which the pursuer was not even suffering at the

time the accident occurred. Nor has the accident, from which Dr Kennedy noted he had

made a full recovery, been proved to have caused or made any material contribution t o his

eventual relapse in April 2018. However, I do accept that his relapse into depression at that

time may have become connected with his headaches, in what Dr Cockayne referred to as a

"vicious circle" (at paragraph 3.50 of her report).

[46]

With regard to the diagnosis of somatic symptom disorder (DSM-5) or somatoform

disorder (ICD-10), I preferred the evidence of Dr Cockayne to that of Dr Tilak. I found

Dr Cockayne's evidence more compelling in matters of detail. Dr Tilak's comment - "we see

that the trauma of the accident at work has led to a deterioration in his mental and physical

health" does not appear to be based on any detailed analysis of the medical records (she

seems inexplicably to have ignored the GP record of 6 October 2017), and does not

acknowledge the several other potential causes of that deterioration. Further, the contrast

she portrayed between the pursuer's situation post-accident and the "previous pattern of

bouncing back from adversities" appeared not to have been made with full awareness of the

prolonged period during which the pursuer was off work with depression between 2016

and 2017 ("his GP records note time off only in September 2016, following which he was

able to make a return to work", paragraph 7.11 of her report). I am prepared to accept the

submission made by senior counsel for the pursuer that a single interview would be far from

unusual in medico-legal practice, at least in the field of personal injuries. However, my

strong impression was that Dr Tilak would have been able to carry out a more forensic

assessment, relying less heavily on the pursuer's own account, had she spent more time with

him.

[47]

By contrast, Dr Cockayne was closely examined in relation to the pursuer's medical

history, but could find nothing indicating the presence at any stage of a somato form

disorder. For example, it was suggested to Dr Cockayne that the pursuer's presentation at

his GP in January 2013, complaining of urinary symptoms in circumstances where his urine

had never grown any bacteria, might be indicative of someone pressing for "unnecessary

investigations". But, as Dr Cockayne pointed out, he had a slight temperature on

examination, and his presentation was therefore appropriate. Whether such presentations

were taken in isolation or together, she was able to explain, to my mind entirely

convincingly, that the pursuer was appropriately concerned, rather than someone having

excessive or disproportionate thoughts about the seriousness of his symptoms, or pressing

for unnecessary investigations. The pursuer had "healthy responses" to his symptoms, with

no psychological overlay. Insofar as any criticism was levelled at Dr Cockayne in respect of

her use of ICD-10, I reject it: as I have indicated, neither expert considered anything turned

on the choice of diagnostic tool. In principle, therefore, if Dr Tilak were right, the pursuer's

case ought to have been capable of being made out on the basis that he had a somatoform

disorder (ICD-10).

Quantification

[48]

In the result, therefore, and in broad agreement with the defenders, I have

approached quantum on the basis that the pursuer suffered a minor head injury followed by

post-concussion syndrome lasting at most 7 weeks. There having been no wage loss during

this period, damages are restricted to solatium and necessary services provided by

Ewa Bieniecka. Inevitably, senior counsel for the pursuer's submissions on solatium were

made on a quite different basis. In particular, she submitted that the pursuer's pain and

suffering did not end seven weeks after the accident, but were a continuing loss. Moreover,

the appropriate Judicial College Guidelines were those governing "moderately severe

psychiatric damage", not minor head injuries. On that basis, she submitted that £45,000

would be a reasonable award for solatium, with two thirds of that amount being attributable

to the past.

[49]

Unfortunately, senior counsel for the pursuer's submissions did not include an

alternative assessment of what she considered would be an appropriate award of solatium

in the event that I agreed with the defenders. However, on the basis that two thirds of what

the pursuer seeks was said to be attributable to the past, then, on the pursuer's own

approach, pain and suffering from the date of the accident to the date submissions were

lodged can be quantified at £30,000. Further, since submissions were lodged roughly

200 weeks after the accident, this equates to £150 per week, or £1,050 for the first 7 weeks

following the accident. Of course, this would be to assume the same straight line basis of

assessment used by the pursuer for his interest calculation, but even allowing for a higher

than average amount of pain and suffering in the weeks immediately following impact, the

defenders' assessment of solatium at £5,000 does not seem ungenerous. It is roughly in the

middle of the bracket of the Judicial College Guidelines for "minor brain or head injuries",

the bottom of which is said to reflect "full recovery within a few weeks". I would therefore

make an award of solatium, upon which interest falls to be calculated, of £5,000.

[50]

Before leaving this aspect of the pursuer's calculations, it may be worth briefly

exploring what is entailed in attributing £15,000, or one third of the £45,000 he seeks, to the

future. As already noted, the pursuer has calculated interest on pain and suffering incurred

in the past by using a straight line method of assessment. Extending that line into the future,

it is implicit in the pursuer's calculations that he will suffer pain and suffering for a further

100 weeks (£15,000 ÷ £150/week). However, this sits rather awkwardly with the pursuer's

claim, elsewhere in his schedule of damages, for 5 years of future loss of earnings, where this

choice of multiplier will already have been discounted to reflect "uncertainties" and the

impossibility of "accurate calculation".

[51]

Turning to necessary services, the pursuer claims only for services provided by

Ewa Bieniecka from 16 August 2018 when the pursuer became absent from work, until

15 January 2021, when she and the pursuer separated. This is to ignore altogether whatever

services Ewa Bieniecka provided in the weeks immediately after the accident, when the

pursuer was also absent from work. The defenders' counsel has assessed the pursuer's

services claim at £250, based on Ewa Bieniecka taking him to hospital and supporting his

recovery during the 7 week post-accident period. This is a more generous amount than

would result from applying the pursuer's own basis of assessment (£8.50/hour ×

3.5 hours/week £30/week) to the 7 week period. In any event, I am prepared to allow,

prior to any calculation of interest, £250 in respect of necessary services.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> FENRIR THORVALDSEN AGAINST DUNDEE CITY COUNCIL [2021] ScotCS CSOH_120 (02 December 2021) URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_120.html Cite as: [2021] CSOH 120, [2021] ScotCS CSOH_120

Scottish Court of Session Decisions