Scottish Court of Session Decisions

The pursuer was driving his car westwards on The Fairway, Monifeith, Dundee on 4th April 1996 when it was struck by the defender's car. The defender who was driving his car, was approaching in the opposite direction at a speed in excess of 50 m.p.h. He lost control of his car. The pursuer drove his car over the kerb on his nearside in an attempt to avoid collision but the defender's car skidded across on to the opposite carriageway, struck the pursuer's car along its offside causing it to jump into the air and damaging the offside of the car from the front wing to the rear door. At the time of the collision the pursuer was wearing a seat belt. The defender was subsequently convicted of reckless driving in Arbroath Sheriff Court.

The pursuer was born on 5 July 1953. At the time of the accident he was a serving police officer with Tayside Police. He had entered the police force as a police cadet in 1970 and was appointed a police constable with the Tayside Police in July 1972. At the date of his accident he was employed as a beat constable. He was off duty at the time of his accident.

Immediately after the collision the pursuer was able to get out of his car, but after a couple of minutes he described himself as feeling very shaky and shocked. He was able to take the defender's particulars and then to drive in his car to the house of his mother-in-law which was nearby. While there he began to feel sick. He left and drove home. He went to bed and slept through the night. When he woke up in the morning he was suffering from pain in his lower back which radiated down both legs as far as the knee. He had difficulty in getting out of bed and had to be assisted by his wife. He felt severe pain in his lower back and shooting pain down the backs of both legs. The pain in the lower back has remained constantly with him but about a month after the accident the pain in his legs extended down to the ankle joints and has remained so since then.

The pursuer was unable to return to his police duties after the accident because of the pain from which he was suffering. He was placed on half pay with effect from 11 September 1996. At various times from June 1996 until January 1997 the pursuer was examined by Dr. Malcolm for the police authority. On 21 April 1997 a case conference was held with senior members of the police authority to determine the pursuer's future. At that time the pursuer was anxious to retain employment with Tayside Police and was willing to move to an administrative job. Following a further medical examination on 29 May 1997 by Dr. Malcolm, a certificate of permanent disablement was issued by him. This stated that Dr. Malcolm had decided that the pursuer was suffering from chronic back pain, that he was disabled from performing the ordinary duties of a member of the police force and that the disablement was likely to be permanent. The pursuer was thereafter retired on health grounds on 4 July 1997. He was granted an ill health pension in terms of the Police Pensions Regulations 1987. In terms of these regulations the pursuer would have become entitled to retire with a full retirement pension at the age of 49 on completing not less that 30 years' service. In ordinary course he would have been able to serve until the age of 55 at which age he would be compulsorily retired if he was then holding the rank of sergeant or constable. The pursuer stated that his intention had been to remain in the police force until attaining the age of 55.

At the date of his retirement the pursuer had completed 25 years' service in Tayside Police. In 1978 he had passed the promotion examination which entitled him to be considered thereafter for promotion to the rank of sergeant and thereafter of inspector. He had taken but failed examination for promotion above the rank of inspector on several occasions between 1980 and 1986. Annual assessments of the pursuer for the year from July 1994 to July 1995 indicated that he was regarded by his senior officers as a hardworking, conscientious and able officer who had the potential to achieve the rank of sergeant. A similar annual appraisal for the following year completed by two senior officers indicated that though he was regarded as a very diligent beat officer, he was at a stage in his career with the police when he would benefit from a change from beat policing.

The pursuer described the effect of his disability upon his everyday life. He requires to be assisted by his wife to get up in the morning and to bath, shower and to put on his clothes as well as to undress him at night. His sleep is broken and he wakes up on occasions at night with pain which his wife eases with a gel rubbed onto his back. He is not able to get up and down stairs without assistance. If he sat in a chair for any length of time, he had to be helped out of it. He was able to walk and to drive a car but only for short distances. He could not lift or carry any substantial weights. He was no longer able to enjoy sports such as golf, hill walking and swimming which he had pursued before the accident. He now led a restricted home life. He had attempted to obtain a part-time job with the Scottish Parole Board in 1997 but had not been accepted. His disability prevented him from contemplating any employment where he required to travel distances or sit down for lengthy periods. He had had various treatments for his disability including osteopathy, but none provided any substantial relief. He had been provided with a TENS machine which he wore during the day. This tended to dry his skin at the points where the four terminals were placed at back and hip. This caused his skin to break down with a rash and cracked skin. He then had to give up use of the machine until the skin healed. He required to take painkillers, particularly at night. He was also prescribed the gel for application to relieve pain which had to be applied by his wife at times during the day as well as at night.

Mrs. Grassie described the aftermath of the collision in terms which substantially corroborated the account of the pursuer. In particular she recounted that the pursuer had gone to bed early the same evening complaining of feeling sick and shaken by the accident. The following morning he had been unable to get up because of pain in his back and she had had to help him to do so. She said that from then on until the present the pursuer has suffered from constant back pain which has affected his legs also. This had meant that she required to help him in many ways in the course of a day. This extended from helping him out of bed, from part dressing him in the morning and undressing him in the evening, in bathing or showering, in getting up from a seat, in moving up and down stairs and in applying pain relieving gel and a cream prescribed for use in repairing the skin where the terminals of the TENS machine are placed. On occasions she would have to apply the gel during the night. She also described the restrictions on the pursuer's mobility in walking and driving and more particularly the need for her to undertake tasks in the house and garden which the pursuer had been accustomed to take on prior to the accident.

The substantial issue at the proof was the question of whether and to what extent the pursuer's disability is the consequence of the accident and therefore to what extent he had established his claims for loss and damage.

Much of the medical evidence was concerned with an examination of the extent to which the pursuer had been suffering from disabling conditions prior to the accident and whether and to what extent they have continued to play a part in his medical history since the accident and would have affected his employment had the accident not occurred.

The evidence of the pursuer's general practitioner, Dr. Dick, satisfies me that within a very short period of the accident he became concerned that the pursuer's complaint of back pain which had followed on the accident, was not responding to treatment. He had noted on the day after the accident that there were no definite injuries. He could not recollect precisely what he had been told at that time by the pursuer about any symptoms. However the pursuer had been undergoing a course of ultrasound treatment with the clinic's physiotherapist for stiffness of the neck and shoulders. This had begun shortly before the accident. The course continued after the accident and the pursuer had then received ultrasound treatment both to the cervical and to the lumbar areas but without relief to the back pain.

In May 1996 Dr. Dick referred him to Mr. Valentine, the consultant orthopaedic surgeon at Strathcathro Hospital, who examined the pursuer on 26 June 1996. Mr. Valentine initially considered that the cause of the pursuer's complaint of pain in the low back area radiating into the back of both thighs appeared to point to a facet joint source of his pain which should respond to appropriate mechanical measures. At the same time he made arrangements for the pursuer to be x-rayed. He also agreed that the pursuer should go to see an osteopath at his own expense. The pursuer spoke to undertaking treatment from an osteopath but said that this had not provided more than limited relief. At the same time an x-ray examination of the pursuer's lumbar spine in July 1996 had indicated some osteo-arthritic lipping of the middle back at the junction between the thoracic and lumbar spine, but otherwise normal disc spaces and no defects. This report was described by Mr. Valentine as not clinically relevant to the symptoms of low back pain with which he was concerned. In August 1996 Mr. Valentine examined the pursuer again. He arranged for the pursuer to attend for facet joint injections in the lumbar spine, which were to serve as both a diagnostic and therapeutic manoeuvre. Following the injections Mr. Valentine concluded that because the pursuer had no response at all to the facet joint injections, not even as a temporary response to the local anaesthetic component, the facet joints were not the pursuer's pain source. He described the picture as being very unclear, the pursuer having an intractable back ache without any diagnostic features and without any indication of a surgically remediable lesion. He decided that there was a small possibility of demonstrating a pain source on an MRI scan of the pursuer's lumbar spine. This was carried out on 21 October 1996. The scan was described by Mr. Valentine as normal for a man of the pursuer's age. It showed no clinical evidence of any pressure on or compression of the nerve roots in the lumbar spine or of nerve entrapment or dysfunction. In a report dated 21 November 1996 Mr. Valentine noted that the pursuer had had physiotherapy, osteopathy, rehabilitation treatment, facet joint injections and an MRI scan, none of which had provided a diagnosis or had been particularly helpful in terms of treatment. His opinion at that date was that the pursuer had sustained some sort of soft tissue injury in the accident, which may have been a ligament, tendon or muscle or some combination of these factors. There was no evidence of structural damage to the vertebrae or discs and his symptoms had proved intractable to treatment. He expressed the opinion that the pursuer had by then an established syndrome of pain and disability. In evidence Mr. Valentine stated that he was satisfied that the symptoms were genuine and that the pursuer was in no sense malingering. Mr. Valentine saw the pursuer again in April 1997 at the pursuer's request because of increasing pain. At that time Mr. Valentine examined the pursuer but found no clinical evidence of any true sciatica or neurological deficit. He advised the pursuer that he would look again at the MRI scan to see if there was something like an annular tear or some such that he might have missed. Having done so he subsequently reported to the pursuer by telephone that he had found nothing. At the same time the pursuer was being seen by Dr. Houston in the Pain Clinic at Strathcathro. In May 1997 the pursuer was supplied with a TENS machine for relief of his back and hip pain. In July 1997 Dr. Houston reported to Mr. Valentine that the pursuer had been discharged from further attendance at the Pain Clinic but that there was nothing further, in his opinion, that the medical profession could do for the pursuer's problem. Mr. Valentine saw the pursuer again in November 1997 for the purpose of examining him and preparing a report. In his

The evidence of Dr. Jamal, a consultant physician who specialised in diagnostic neurology as well as clinical neurophysiology, related to an examination which he carried out on the pursuer on 21 November 1998. He was an impressive witness. He had the benefit of perusing the records both of Dr. Dick's practice and of Strathcathro Hospital relating to the pursuer as well as taking a history from the pursuer. In his report produced after the examination, he described the complaints from the pursuer as being of continuous severe pain in the low back region which went down both legs down the back of both thighs to the knee level and sometimes to the ankle level, the pain being slightly more on the right than left side. Dr. Jamal carried out EMG testing of muscle and nerve conduction studies upon the pursuer. These studies showed evidence of low grade, as opposed to aggressive, chronic residual damage of the lumbosacral nerve roots at the L5 level and to a lesser extent at S1 level both sides of the spine, but more on the right than left side. There were no acute denervation changes to be seen, that is to say, nothing in the sense of spontaneous compensatory activity in the nervous system to compensate for recent damage. Nor was anything observed to suggest acute, i.e. recent, or continuing entrapment or compression of these nerve roots. From the description of the accident given to Dr. Jamal by the pursuer, which equiparated with that given by the pursuer and his wife, Dr. Jamal concluded that in the course of the collision and because of the constraints of a three point seat belt, the pursuer had sustained stretch injuries to the lower part of the lumbosacral nerve roots on both sides of the spine as part of the soft tissue injury sustained in the accident. Whereas frequently the forces exerted on the body of an individual who was involved in a collision, caused whiplash injuries to the cervical spine, in certain cases these forces could be come to be applied at the lumbosacral level and result in soft tissue injury at that level. This was consistent with the development of pain shortly thereafter and the other symptoms and their evolution which had been noted in the medical notes. In particular Dr. Jamal noted that the pursuer's complaint of pain radiating down the back of the thigh to the knee and thereafter from the knee to the ankle was entirely consistent with the track of one part of the sciatic nerve from the spine to the ankle. Furthermore the objective neurophysiological studies showed evidence of a residual neurological damage of a chronic or long standing nature affecting the nerve roots at L5 and S1 level consistent with its occurrence at the time of the accident. The presence of these changes in the absence of any major anatomical findings by x-ray and MRI was again suggestive of a stretch injury of the nerve roots. It was notorious that nerve root pain was resistant to treatment. The development of the pain in the manner described by the pursuer together with its resistance to treatment noted by Mr. Valentine and Dr. Houston, was again consistent with such nerve root pain. He was of the opinion that there will be no significant improvement in the future. Dr. Jamal was clear that any complaints by the pursuer of neck, shoulder or back pain predating the accident were wholly unrelated to the symptoms of pain in the low back first exhibited after the accident to the pursuer. These latter symptoms constituted a new syndrome in his opinion. Likewise he was clear that the pre-existing condition of ME or chronic fatigue syndrome was wholly unrelated to the symptoms of low back pain first exhibited after the accident.

Mr. Sloan, an actuary, gave evidence of loss of pension rights arising from the cessation of the pursuer's employment with Tayside Police with effect from 4 July 1997. His calculations are set out in his report dated 24 December 1998. He proceeded to calculate the estimated loss on the basis that the pursuer would have remained in the police force until the age of compulsory retirement. He also recognised that any replacement pension to put the pursuer back in the position in which he would have been if he had continued as a police officer until the age of 55, would be taxed only on the interest and not the capital element as well, unlike the police pension. He further took into account that on past historic evidence, the pursuer's earnings as a police constable would have increased at a rate which he estimated to be 2% above the rate of inflation. Lastly, he proceeded on an assumption of investment in Gilts in accordance with recent case law. Based on pensionable earnings at withdrawal from the police pension scheme of £23,480, Mr. Sloan estimated that the loss of pension rights between what he would have been entitled to if he had remained in the police force as a constable until age 55 and what he has actually received by way of the ill health pension, to be £74,600. Taking the probability of the pursuer being promoted to sergeant before he retired at age 55, he considered that chance would properly be assessed at 25%, increasing the value of lost pension rights to £84,200.

The only witness led for the defender was Professor Rowley, a consultant orthopaedic surgeon and professor of orthopaedic surgery at Ninewells Hospital. He noted from the medical records made available to him that in the period of five years prior to the accident the pursuer had suffered from a number of medical problems. In particular, the pursuer had been diagnosed in 1991 as suffering from a Coxsackie viral illness the symptoms of which had gradually improved though in May 1992 he was still getting generalised aches and pains, particularly in the limb muscles and joints. Professor Rowley noted that in a report from a consultant physician in April 1991 reference was made to complaints from the pursuer that he had some muscular pains in the back of his legs and some low back pain. In February 1992 he was diagnosed as having the myalgic encephalomyelitis. At that date the consultant physician had noted that the features suggestive of a post viral fatigue type syndrome appeared to be clearing slowly but that the pursuer was complaining of some stiffness of his joints particularly in the morning. X-rays of the sacroiliac joints and lumbar spine had shown very slight sclerosis at the margin of the joints, which were said to be probably in keeping with the pursuer's age. In October 1992 the consultant physician noted that the pursuer had recently had some problems with his neck. X-rays of his cervical spine showed only minor spondylotic changes. In June 1994 the pursuer had been referred for outpatient consultation with an urologist at Stracathro Hospital in relation to a recurring urinary tract infection. He had been referred for physiotherapy between October and December 1994 by way of ultrasound treatment in relation to his back and shoulders on four occasions, in the course of which it was noted that there was no sacral pain. Further treatment was carried out between February and April 1995 for neck and shoulder stiffness. In the latter part of 1995 the pursuer had been referred to Mr. Pickles, a clinical psychologist, for breathing difficulties thought to be associated with panic attacks from which the pursuer was then suffering. He made reference to a return of anxiety related problems at some stage in the future. I interpolate that it was subsequently determined, according to Dr. Dick, that these breathing difficulties were in fact associated with the medication which had been prescribed for the pursuer and that with a change in the regime, these difficulties disappeared. In March 1996 the pursuer was again referred by Dr. Dick for ultrasound treatment which was concentrated on the neck and shoulder region prior to the accident. Professor Rowley also made reference to the pursuer's sickness record from 1991 onwards. This indicated that for a period between January 1991 and March 1992 the pursuer had been off work due to his post-viral fatigue syndrome. Thereafter he had been absent on various occasions for short periods for various reasons, which included arthritis in September 1992, viral infections on two occasions in 1993 and back pain in February 1995. Shortly before the accident he had been absent from work for a leg injury sustained while playing football.

Professor Rowley spoke to a report which he prepared following an examination of the pursuer on 12 January 1999. From this it appeared that he had also examined the pursuer in June 1997. He noted the pursuer's general condition as being unchanged at the second examination. He described the pursuer's condition in the course of examination as being stiff and uncomfortable at certain moments, of his resisting various movements of body and legs at one time and then voluntarily carrying out movements which had previously been resisted, as with straight leg raising. He was unable to detect any change in muscle tone. There was what he termed a non-anatomical jack knife weakness of all lower limb myotomes which he could not interpret in any meaningful way while sensation was surprisingly normal and reflexes were full. His opinion was that the pursuer fitted into what he termed Waddell's fear avoidance category reinforced by his behaviour of accepting a sedentary and passive lifestyle. He found a number of classical overlay features from light touch pain, head compression and a gross paradox of straight leg raising with non anatomical weakness, all of which were behavioural features. He concluded that it was difficult to ascribe the pursuer's underlying disorder, whatever it is, directly to the accident. He considered that there had been an established pattern in a change of behaviour which began with the episode of probably coccyx b myalgic encephalopathy in about 1991 and a continuing pattern of diminishing sedentary activity in which his problems are now principally focussed around his low back pain perceived by him as genuine and causing major modifications of his behaviour. From his experience of observing many patients with low back pain, the pursuer's condition fitted into a category defined as illness behaviour, possibly associated with fear avoidance. Professor Rowley however indicated that such terms were better discussed with a psychologist and a psychiatrist, he not being qualified to comment on them further. He had however little doubt that the pursuer would never work again and that as he put it in his report, unless the pursuer had major insight into his back problems, he would continue on long term medication and a sedentary lifestyle.

The substantial issue in this case is a medical one. The pursuer's case is that the material cause of his present condition is derived from a soft tissue injury with damage to his nerve roots in the lumbo-sacral region of his back. The defender on the other hand has maintained that at best the pursuer sustained a very minor injury as a consequence of the accident which has had no lasting effect. In his pleadings it is asserted that any symptoms referable to the accident amounted to no more than an exacerbation of pre-existing back and neck pain. However this assertion was not supported by any evidence to that effect. Rather it was accepted by Professor Rowley that there was probably some distinct soft tissue injury to the lumbo-sacral area suffered as a result of the accident but that this and any associated pain had been relieved within a short period of the accident. On the other hand it was submitted that his present symptoms derive from his pre-existing condition of a post-viral fatigue syndrome and that the effects of the injury suffered in the accident had ceased after a period of months after the accident. Furthermore apart from the continued existence of the post-viral fatigue syndrome, it was likely that in the future the pursuer will be subject to deterioration of the osteo-arthritic condition of his back which was present prior to the accident and also to further changes in the condition of cervical spondylosis which also ante-dated his accident.

In determining this issue, it is pertinent in the first place to note that none of the medical witnesses suggested that the pursuer's complaints of pain were not genuine. Moreover I consider that the evidence of both Dr. Dick and Mr. Valentine is important in that each witness clearly regarded the pursuer's complaints of low back pain made to him a short time after the accident as being acute and of a nature different from any complaint made or recorded prior to the accident. While it is the case that neither Mr. Valentine nor Professor Rowley as orthopaedic surgeons, were able to determine any underlying pathology on clinical examination, Dr. Jamal gave evidence as a neurologist exercising a skill which neither Mr. Valentine nor Professor Rowley professed, which appeared to me to be cogent in providing an explanation for a form of neural injury which fitted the description of the accident given by the pursuer and his wife and was consistent with the complaints of pain of the kind which were noted following the accident but which had not been noted and were absent from the medical records made prior to the accident. Professor Rowley appeared to be critical of Dr. Jamal's findings by reference to certain medical writings which were not produced and which had not been put to Dr. Jamal. Professor Rowley's scepticism appeared to be derived from the fact that there was no apparent clinical pathology to explain the pursuer's complaints of pain which were otherwise accepted as genuine. More particularly it appeared to be derived from the fact that at examination the pursuer had reacted to various movements and other tests in an inconsistent manner. Because of these findings Professor Rowley had concluded that the pursuer's complaints were behavioural in character rather than related to any structural or neural damage. But it is a matter of admission by both surgeons that such behavioural reactions are, in their respective experience, reactions which have been described by other medical authorities as reactions to chronic pain in which the patient's perception of pain and disability cannot be clinically diagnosed. Both surgeons agreed that in a certain proportion of back injuries such a pattern was to be observed. It was their experience that if the patient suffered from chronic pain without any relief after two years or so, that pattern was likely to be permanent. Both surgeons were agreed that in the pursuer's case it was unlikely that he would be able to resume employment again. In my opinion, the balance of the evidence supports the pursuer's case that his present condition of chronic low back pain has its origins in the injury to the low back which he received as a result of the accident. This conclusion is not at odds with Professor Rowley's evidence except to the extent that he related the present symptoms of which the pursuer complains, to spinal degeneration and the post-viral fatigue symptoms from which the pursuer undoubtedly suffered prior to the accident, both of which conditions have remained in existence since the accident. Indeed so far as the latter condition was concerned, the pursuer has continued to be prescribed the same treatment, the drug co-proxamol, as before. However I found the evidence of Mr. Valentine and Dr. Jamal which distinguished these conditions from the effects of the injury suffered in the accident to be more compelling. Their evidence in relation to the difference between the pursuer's complaints prior to the accident and subsequent to it was consistent with a proper reading of the medical records made prior to the accident. In particular it was not suggested that the minor spondylitic changes observed in the cervical spine x-ray taken in 1992 could give rise to back pain. Nor was there any note of low back pain with radiation of pain to the legs recorded prior to April 1996. Although back pain is noted in the general practitioner's records early in 1995, this was related to p

Damages

Since the accident the pursuer has suffered and continues to suffer from chronic low back pain. The balance of the evidence is that this pain will be a permanent feature of his life. It is alleviated to some extent by use of the TENS machine and also kept under control by use of painkillers. It has substantially reduced his mobility as was evidenced by his own and his wife's evidence and with it his enjoyment of life. It has also meant the loss of employment and the frustration of being unable to look to a reasonable working future. On the other hand, I consider that some account must be taken of two features of his medical condition which were present at the time of his accident and which on the medical evidence would in their own way have continued to have some effect upon him and his enjoyment of life even if the accident had not occurred. It is clear from the evidence of the medical records prior to the accident that the aches and pains which were associated with the post-viral fatigue syndrome did affect his life. They were plainly intrusive and to an extent disruptive of his life. In addition, the presence of degenerative changes of the lumbar and cervical spine were likely to have an increasing effect upon him as he grew older. Both spinal conditions were likely in due course to reduce the pursuer's mobility and to cause some increase in pain at times. Furthermore although the police assessment reports indicated that the pursuer remained well regarded by his superior officers, counsel accepted that it would be reasonable to assume that he would not have been promoted to sergeant prior to his retirement even if his career had not been interrupted by the injury sustained in the accident. Moreover although I accept that the pursuer has now a chronic condition of low back pain, it is pertinent to take into account that in April 1997 he was endeavouring to persuade the police authorities that he remained sufficiently fit to work on administrative duties. Accordingly while I am satisfied that his chronic low back pain is now permanent although, as Professor Rowley demonstrated, not related to any particular movements of the spine but rather to what he termed inappropriate behaviour, essentially a reaction to fear of pain, I consider that some part of the pursuer's present predicament is also due to a reaction arising from his prior post-viral fatigue syndrome. I find no basis in the evidence which I accept for the defender's contention that the pursuer was recovered completely from the effects of the accident within a few months thereafter. I therefore reject it.

For the pursuer, under reference to McWhinnie v. British Coal Corporation 1993 SLT 467, Stark v. Lothian & Borders Fire Board 1993 SLT 652, McNulty v. Marshall's Food Group Ltd (unreported 23 October 1998) and cases cited in Judicial Studies Board Publication (3rd ed) p.22 sub nom. Back Injuries, counsel suggested a sum of £30,000 as an appropriate award for solatium with one half of that sum apportioned to the past. Counsel for the defender referred to Fallan v. Lanarkshire Health Board 1997 SLT 902 in suggesting that an award of £12,000 would be appropriate. In that case where the pursuer's back pain was likely to be lifelong, it was held to be of moderate degree and was also accompanied by other degenerative changes not associated with the accident which also caused the back pain. I consider that the present is a case in which the effects of the accident are of a more material character than in Fallan. Making due allowance for the existence of other medical conditions from which the pursuer suffers which are not associated with the accident and which either affect him now or are likely to do so in the future and would have done so even if the accident had not occurred, I consider that an appropriate award is £20,000. Of that sum as invited by counsel for the pursuer, I would apportion one-half of that sum to past solatium, which sum will bear interest at the rate of 4% per annum from the date of the accident until the date of decree.

So far as past wage loss is concerned, parties are agreed that the loss to date amounts to £41,964.16p and that that sum should bear interest at the rate of 4% per annum from 11 September 1996, when the pursuer went on half-pay.

The issue of future loss of earnings depends upon whether on the evidence it can be said that the pursuer would have continued in police service until he reached the age of 55. It was the case that he would have been able to retire on full pension at an earlier date, namely when he had completed thirty years' service in July 2002 . My impression of his evidence was that he attempted to present himself as an officer with a strong possibility of being promoted from constable and therefore as eager to remain in the police force until he was 55. However I consider that there were already signs that he was disenchanted with police service, notwithstanding such protestations, which appeared in his references to stress of service when seen by Mr. Pickles in 1996. Moreover the aches and pains of which he complained to his general practitioner and which were the subject of at least three periods of physiotherapy even before his accident, appeared to me to indicate that it was more probable than not that the pursuer would decide that the physical demands of policing were such that in the absence of any promotion, he should retire earlier than 55 and that he was unlikely to continue in service very much beyond completion of thirty years' service. It is agreed that if he had been in service now as a police constable, his net annual earnings would amount to £19,483.51p. Counsel for the pursuer argued for a figure based upon the premise that the pursuer would have continued up to age 55 before retiring. He suggested in these circumstances a multiplier of 8.5 to bring out a figure of £165,609.83p. Counsel for the defenders suggested that the probability was that the pursuer would have retired on completing 30 years' service, in which event the award would be £68,192,28. I do not consider that there can be any exactitude in the assessment of future loss of earnings. On any view as a police officer, there are other exigencies of service that might have affected his future in the police force. Taking a broad view, and applying a multiplier of the order of 4.5 to take account of all the imponderables, including my assessment of the likelihood of the pursuer electing to retire earlier than age 55, I would award £90,000 for future loss of earnings.

The next matter to consider relates to the claim for loss of pension. In his closing submissions, counsel for the pursuer had submitted that the appropriate sum by way of pension loss was £84,200 based upon the evidence of Mr. Sloan. This was calculated upon the basis of assessing the difference between the discounted actuarial value of what the pursuer would have received by way of a retirement pension if he had retired at the normal retirement age and the similar value of the benefits he will actually receive by way of the ill-health pension from the same date. For his part counsel for the defender argued that no award fell to be made. The pursuer had retired in July 1997. He then became entitled to a pension. This was an accelerated pension. On the basis that between July 1997 and the age of 55 the pursuer would receive 11 years of pension on an annual figure of £10,639, he would thus have received more than his future pension loss. However after the case was taken to avizandum, I heard further argument from parties in relation of authorities which had not been cited when submissions were made at the close of the proof. In particular while the defender had made passing reference to section 10(a) of the Administration of Justice Act 1972 in the course of citing the decision of Lord Eassie in Logan v. Strathclyde Fire Board (12 January 1999 unreported), no reference had been made to Longden v. British Coal Corporation 1997 3 WLR 1336. Having had the advantage of full argument on the matter, I am satisfied that the defender is not entitled to set off against any award for pension loss, any sums received by the pursuer by way of the ill-health pension up to the date when the pursuer would have become entitled to a full retirement pension and would have elected to take it. This is in accord with the provisions of section 10(a) of the 1972 Act which on a proper construction is designed to ensure that an employee retains contractual benefits unless they can truly be regarded as remuneration or earnings (Lewicki v. Brown & Root Wimpey Highland Fabricators Ltd. 1996 SLT 1283 at 1996L). The defender argued at the further hearing that while that might be so in relation to set off against damages in respect of loss of earnings, such set off was not prohibited in relation to an assessment of loss of pension. But in my opinion that argument, which appears to have found favour with Lord Eassie in Logan, is ill-founded for the very reason that by doing so one is taking into account a contractual pension so as to reduce the amount of damages which would otherwise be payable to the injured person in respect of personal injuries. I note that in his speech in the case of Longden, Lord Hope of Craighead at p. 1349 made specific reference to section 10 of the 1972 Act which he found to be consistent with what was decided in Parry v Cleaver. In Longden the House of Lords were also concerned to determine whether a lump sum received by the plaintiff on his resignation should be apportioned as between the periods before and after normal retirement age for the purposes of set off against his claim. It was held that account should not be taken of that part of the sum which represented a commutation of the sums which the plaintiff would otherwise have received during the period up to his normal retirement age. On the other hand, it was held that there should be set off in regard to that part of the sum which represented what the plaintiff would otherwise have received by way of pension after normal retirement age. As Lord Hope observed at p.1351, to do so would be to compare like with like for the same reason as that which explained why the annual payments by way of incapacity pension which would be received as income during the same period, had to be brought into account. In saying this, Lord Hope was applying the same principles as those which were applied in Parry

The last disputed head of claim is for necessary services rendered by the pursuer's wife in terms of section 8 of the 1982 Act. On the assumption which I accept as proved, that these services have been rendered to date and will continue to be rendered for the foreseeable future, counsel for the pursuer suggested a figure of £6000 for past services with interest at the rate of 4% per annum from the date of the accident and for future service, taking a multiplier of the order of 19 derived from the Ogden tables, a figure of £30,000. Counsel for the defender took a figure of £728 per annum to be applied both to past and future services, though he submitted that future services should only be awarded for the period until the pursuer was 49 years old. On a broad view I consider that an appropriate award is to be measured on the basis of a figure of £1000 per annum. I shall award £3000 for past services with interest on that sum at the rate of 4% per annum from the date of the accident. As to services to be rendered in the future, bearing in mind the uncertainties of life, the fact the pursuer's pre-existing conditions might also have meant that the pursuer's wife would have performed similar services even had the accident not occurred, and also applying a discount to take account of the fact that an award is being made now, I consider that a figure of £7000 would be appropriate.