Scottish Court of Session Decisions

In this action, brought under Optional Procedure, the pursuer claimed damages for the effects upon her back of an incident which occurred while she was in the defenders' employment as a student nurse at St. Michael's Hospital, Linlithgow. At a date which the pursuer has variously attributed but which on examination of the relevant records would appear to be 24 July 1995, she was engaged in a small geriatric unit consisting of two wings, separated by a corridor. In that corridor there were provided two SARA hoists for the assistance of staff lifting geriatric patients. Such hoists are simple and easy to operate using both hands on a rotating handle placed on the vertical pillar on the side away from the patient, and do not, normally, involve any particularly strenuous activity on the part of the operator. It was not established which of the two hoists there on that day the pursuer was using.

The summons in the present action was signetted on 11 April 1997. It was brought under Optional Procedure. Notwithstanding that the pleadings were amended on three separate occasions viz on 12 June and on 30 June 1998, when there was to have been a proof which could not proceed, it was further amended, obviously after the preparations for that proof had been made and, in particular after Miss McQueen, the consultant surgeon called at the proof to give evidence for the pursuer had given evidence on commission; and further amended on 12 January 1999. Despite these opportunities to correct the factual narration, if that was in error, the averments made on behalf of the pursuer and on which the case proceeded read "Using both hands, the pursuer attempted to turn the handle of said hoist. Said handle did not move as a result of which the pursuer jerked her back". The court can only assume that the pursuer had persisted in that account until she gave evidence.

The account she gave in the witness box, without objection, was that she had turned the handle of the hoist, but that it had jammed. She then returned the handle to its starting position and completed the lift without difficulty and with no jamming. She claimed in evidence that the jamming of the handle caused a jerk to her back which gave rise to her injury. In the report compiled the day following the event by Sister Paterson (who said she wrote down what the pursuer said), (14/2 at p.75) the pursuer is recorded as giving the following information, transcribed as follows:

Nurse Peters did not recall such a report to her and, indeed, after Nurse Peters had been sworn as a witness for the pursuer the pursuer's counsel intervened to state that he had been informed by the pursuer that she did not recollect Nurse Peters as the person to whom she had reported the accident.

I did not find the pursuer a reliable witness. I am not prepared to go so far as defenders' counsel in relation to her incredibility, when he submitted she was lying, because I was not persuaded that she was deliberately telling untruths. I am, however, not able to accept her evidence unless it is supported from independent sources. She was admitted by her counsel to be unreliable in the matter of dates, she was unable even to give her age accurately, and plainly had not given the correct date of the accident to her solicitors. The date she originally gave for the event when litigation commenced was a date prior to a repair to one of the said hoists because of a report of stiffness by Sister Peters. In her application for her present post she narrated (51/2) that she had sustained a back injury in June 1992 and also that she had had a back injury and was off for four weeks "during the past three years". She signed and dated that form on 13/12/96 and was unable satisfactorily to explain why she gave the date of June 1992 for an accident which had occurred some fifteen months prior to her signature on the form, unless she had meant to say 1991. The significance of that date emerges later.

The major problem, however, which arises from the pursuer's unreliability, concerns the evidence about the condition of her back before the incident in July 1995 and the consequent importance to be attached to the events in relation to which the action was brought. It might have been a comparatively simple matter had the pursuer sustained injury to a normal back while operating a hoist to infer that there was more likely than not to have been some defect in the hoist which caused that injury. It was only when the circumstances of the incident were explored in depth by Mr James Christie, the orthopaedic surgeon who was led by the defenders, that it emerged that the pursuer had had previous back problems. The pursuer, in particular, did not mention any previous back problem to Miss McQueen when examined by her on several occasions and Miss McQueen's views had proceeded upon the assumption that this was the first back injury the pursuer had sustained at the time when the case first appeared for proof. Mr Christie's reports (34/2 and 47/1) were the result of diligent enquiry on his part. He had at first, 20 May 1998, the general impression that the claimed injury was quite disproportionate to the event described to him and on the second occasion on 14 January 1999, the pursuer's mother being present, he elicited that she had suffered over a period of several months in 1991 from a sore back and had been attending her general practitioner for treatment for this. This attendance was from 26 June 1991 until October 1991. She was at that time treated with pain relieving tablets, coproximol and ibuprofen, but claimed in court to have forgotten this incident. It was said that not only had she forgotten this incident at the time of her consultation with Miss McQueen, but that she had also forgotten it by the date of her application for employment as a trainee nurse (51/1 of process), a document she signed on 12 October 1993. In that application she denied any back trouble at any time and denied any absence from work. With regard to the latter matter it did not appear from the G.P. records that she had been supplied with any medical certificate, and so may well have attended at her employment.

Utilisation of the G.P. records was objected to by counsel for the pursuer on the basis that the doctor, Dr Sargent, led (by him) in evidence, did not make all the entries therein, and that the statement in the record had not been made the subject of the procedure prescribed in Rule of Court 36.8.

That objection was not sustained. The records which were spoken to by Dr Sargent one of the practice doctors were the records of the practice relating to the pursuer. The doctors who made the entries were identified by him. This is acceptable written hearsay evidence and is admissible in terms of section 2 of the Civil Evidence (Scotland) Act 1988 having been spoken to by a witness. It does not accordingly require the procedure prescribed in Rule of Court 36.8 to set it up. In relation to that matter, however, the evidence of the pursuer's mother was of itself sufficient to establish the fact of a previous back problem in 1991 and the matter was admitted to Mr Christie when the pursuer's mother was present at his consultation. The pursuer's mother also gave evidence that there was backache when the pursuer was about 16 years of age, the suggestion being that this had something to do with high heels and a stoop. The G.P. records also confirm that there was such a period of back pain in 1987 lasting some three months or so in which she was x-rayed and given brufen tablets. I accept the evidence of the records although hearsay. It was thus clear, and was ultimately accepted by both consultant surgeons who gave evidence, that the pursuer had a vulnerable back. I find on that evidence that both previous back incidents were established and proved.

The pursuer's own account of the events leading up to the incident was that she had been given a hoist to use by an auxiliary nurse, that that hoist was faulty and had on it a sticker so indicating. That sticker was pointed out to her, she said, by the auxiliary nurse after the accident but it was on the side of the hoist away from the operating handle. It was however on the side where the patient would be installed. The pursuer makes no case of vicarious liability against the defenders. The pursuer led no evidence to support her contention that there was a label there then present and no evidence that the particular hoist she used was faulty. Although two auxiliary nurses were present in the ward, no evidence was led from either of them as to events of the day. There was no acceptable evidence from which I could conclude that the hoist did in fact bear a label indicating that it was faulty. If it had I fail to understand why the pursuer would not have seen it when installing the patient. No steps were taken, according to the records kept for the defenders about the maintenance of equipment, to deal with any alleged or reported defect in any hoist from the date of the incident until October 1995. Specifically, there was no evidence that the hoist was in any way faulty at the time of the incident. It had been maintained along with the other hoist by way of a complete overhaul when the new engineers charged with that duty took over the contract for maintenance in March 1995. On 17 July 1995 one hoist was reported as stiff and that report was attended to on a brief visit by an engineer. No other complaint or attendance by maintenance staff was noted and in particular the pursuer did not convey to any of the senior staff to whom she reported the accident any information which indicated a faulty hoist. Nothing was done by either of the senior staff to check the hoist or have it checked. Had it caused an accident it would have been checked. Both senior staff reported many defects in equipment as both their evidence and the Maintenance Record Book (16/8 of process) confirmed.

I find accordingly that the pursuer has failed to establish that the twist of her back from which she has suffered intermittently after the event was occasioned by faulty equipment or unmaintained equipment supplied for her use by the defenders.

Much time was spent at the proof in dealing with the question of whether or not one or other of the hoists was regularly stiff to operate. It should be noted that the pursuer's averments had proceeded on that basis but that her evidence was of an unexpected jamming. Such an occurrence had never before been noted. Mr Stewart, an engineer called to give evidence for the pursuer, was not particularly convincing. The first time he became aware that the pursuer had turned the handle back and that the hoist had worked after the event, was when he heard the matter in court. Mr Stewart's evidence at one point seemed to be that a hoist could stick without warning, it could then be cleared and stick again getting progressively stiffer. When asked in cross-examination whether such an event was a "one-off unforeseeable snag in an otherwise functioning machine" he said it "would be foreseeable if there was a handle becoming stiff. They would foresee that there might be an accident". However, there was no evidence that the handle of the hoist in question was becoming stiff before or after the incident. One hoist, according to the witness Steven Roberts, was faultless, whereas one was always so stiff to operate, according to him, that he felt that he and not a female nurse ought to use it. I was not prepared to accept that evidence nor the evidence that he gave about recalling a sticker on the hoist. That evidence about the sticker was very hesitant, was not related clearly to the time of the accident and was inconsistent with the evidence of the senior staff who gave no indication whatsoever that there was a sticker on the hoist at the date of the pursuer's incident, nor that there had been a sticker on a hoist for months nor that nothing had been done about a fault on a hoist at the time of the incident as Mr Roberts would have the court believe. It may be that Mr Roberts was either confused about time and place in relation to a stiff hoist. There was such, but not at the time of the incident.

I accept the evidence of Mr Christie that what probably happened was that the pursuer, while operating a perfectly satisfactory machine and turning a handle without exerting any great pressure on the handle sustained, as she said at the time, a twist to her back which was vulnerable and susceptible to injury from such a cause. I am not convinced on the balance of probabilities that the pursuer's damage was the result of a fault in the hoist as a result of any failure to maintain it in an efficient state in efficient working order and in good repair and shall accordingly assoilzie the defenders.

Had I been satisfied that the accident had been the result of a defective hoist, the pursuer would have been bound to succeed on her statutory case. She would not have succeeded on her common law case. The jamming was unforeseeable in all the circumstances. It had not happened before with that hoist and there was in any event a satisfactory system for dealing with any defective equipment, involving labelling it as faulty and so withdrawing it from use.

A joint minute for the parties provided the basis for calculation of the patrimonial loss sustained by the pursuer. Because of the view I have taken about the pursuer's pre-existing vulnerable back, no loss of wages has occurred it having been accepted by the pursuer that she would not start to suffer wage loss until November 2000. I hold that the effects of the pursuer's accident were merely another incident in a series of incidents affecting her back. Another such incident for no apparent cause occurred shortly after the matter with which the court is concerned which occasioned further disability. The effects of the incident with the SARA hoist accordingly had been overtaken long before November 2000. In assessing solatium for the event pursuer's counsel referred me to various illustrations from Kemp and Kemp and also in detail to Taylor v Marshalls Food Group Ltd 1998 S.L.T. 869 and Lennahan v Ayr & Arran Health Board 1994 S.L.T. 765. Putting the matter broadly, as one must in the case of one incident in a series, I am of the view that solatium would have been £3,000 to take account of the undoubted discomfort the pursuer suffered. While that discomfort was real it was not major. She completed her training and began employment as an ocular prosthesist in January 1997.

On the whole matter, however, I sustain the defenders' second and fourth pleas-in-law, repel the pursuer's pleas and grant decree of absolvitor.