Scottish Court of Session Decisions

The pursuer is aged 45, his date of birth being 4 December 1954. He married his wife in or about February 1997, but they had been together, as she put it, for four of five years before that. Currently she is a bar manageress. Formerly, however, she was a nurse, although her particular qualifications as a nurse were not disclosed in evidence. The pursuer was employed for nine years or so as a removal man with the defenders. For the first three of these years he was employed on a casual basis. His manager, Mr Mann, described him as a good employee who was quiet, reliable and a man who got on with the job in hand. Prior to 16 November 1995 he had had no trouble with his back. On that day he slipped and fell in the course of his employment, sustaining an injury to his back. The defenders have admitted liability to make reparation to the pursuer in respect to his injury, and so I will accordingly sustain the pursuer's first plea-in-law. The proof was concerned with the extent of the injury which the pursuer sustained in the accident.

The account which the purser gave was of carrying a tallboy full of clothes backwards up a ramp leading into the defenders' removal vehicle, assisted by a mate, Vincent Ross. Near the top of the ramp he slipped on a bare patch, lost his footing and fell backwards, striking the bottom of his back and his left hip on the edge of the vehicle. The tallboy fell on top of him. More precisely, his hip hit the edge of the ramp and his back hit the edge of the vehicle. He said that he was in agony and had to lie down in the house from which he was removing the furniture, which was situated in Edzell. Ms Birse, the defenders' assistant manager in Aberdeen, went down by car from Aberdeen to Edzell, and took him from there to Aberdeen Royal Infirmary. His mate, Vincent Ross, who was holding the other end of the tallboy, was facing the pursuer as they went up the ramp. Suddenly, he said the pursuer just disappeared underneath the tallboy. He helped to lift the tallboy off the pursuer. He was lying on his back on the ramp. He said he had slipped and hurt his back. Vincent Ross helped him up and took him into the house. From there he was taken to hospital by someone from the office who came down by car.

According to the hospital records (which regrettably are not complete) the pursuer arrived at 12.50 p.m. complaining of back pain. In response to his complaint, those who had care of him in the Accident and Emergency department x-rayed his thoracic, not his lumbar spine. When Mr Wardlaw, a consultant orthopaedic surgeon at Aberdeen Royal Infirmary produced a report on the pursuer's condition dated 17 June 1996 he had available the full medical records relating to the pursuer. So he was able to summarise the history thus:

He was discharged from hospital and on the following day he visited his general practitioner, Dr Munro. Dr Munro noted that he had fallen at work the day before and that he was taken to the Accident and Emergency Department at Aberdeen Royal Infirmary. They had advised that he should remain off work for two weeks, and Dr Munro granted him a certificate for that period. His next visit to his general practitioner was on 21 March 1996. What the pursuer did or was able to do in this period is clearly critical to the question of the sequelae of the pursuer's accident.

The pursuer returned to work two weeks after the accident. He said that he managed light duties as a packer and porter. It was a quiet period of the year. He swept up the yard, but he also had to do removals. (Ms Birse said in evidence that December was normally a busy month.) Everyone at work knew about his accident and that he had hurt his back. He had never before had a problem with his back. Performing only light duties, he found the pain in his back tolerable. In the month of March 1996, however, when he bent to pick up an empty carton in a customer's house, his back suddenly seized up. He returned to the depot and was driven home. In cross-examination he accepted that in this period he was engaged in removals from time to time. That involved him in going up and down stairs, and carrying objects. They were, however, only light objects. On the day in March when his back seized up he had been packing and lifting boxes of china all day. It happened in the late afternoon. It was a sudden pain which occurred in his back. It was the same type of pain as had occurred in November 1995, but stronger. He had not had such pain since the accident. He thought that this incident happened at the end of March, but he was not sure. He never returned to work after that incident.

No one who worked with him in this period gave evidence. Vincent Ross, when he met him at work, would ask him how he was doing and the pursuer would reply that his back was playing up. He told Mr Ross that he got light duties from the guys instead of carrying all the time. So he would be given a bit of packing. Mr Ross had not worked beside the pursuer since December 1995. The pursuer's transport manager, Mr Mann, said that he had received no reports in this period from customers that the pursuer could not do the work, although it was possible that colleagues could have covered for him.

The pursuer's wife described what he was like when he was brought home from hospital on 16 November 1995. He was very badly shaken and his back was very badly bruised and sore. Indeed, he was black and blue all the way down his back. She thought that there was a bad bit on one side, at the top of the hip. He told her that he had fallen backwards onto his back while carrying a chest of drawers. He was off work for about two to three weeks. The bruising went, but he was left with a gnawing pain. Being a former nurse, she was able to tell him what to do. Although he went back to work, he spent much of his time in the warehouse. His back still bothered him. Then one day he had to come off a job because his back seized up when he was packing a box. He went back to the doctor and got another line. He went to the doctor of his own accord: not in response of an appointment made by the doctor.

It would appear that the pursuer visited his doctor, Dr Munro, on 21 March 1996. That was his first visit since 17 November 1995. It is not clear whether this was because of the latest incident of pain or because Dr Munro asked him to make an appointment in response to a letter from his Union's solicitors dated 15 March 1996. That letter which is in the GP's records, reveals that the pursuer had consulted them about his accident on 16 November 1995, and in response to his instructions the solicitors had asked Dr Munro to examine him and provide report detailing the injuries the pursuer sustained and the prognosis. He remembered meeting solicitors at the offices of the TGWU in Aberdeen. It could have been in January 1996. Dr Munro duly provided a report dated 25 March 1996. On examination the pursuer had some pain on flexion of his lumbar spine and there was a mild discrepancy in straight leg raising. He also reported that the pursuer had had "recurrent lumbar back pain since the incident". In the medical records Dr Munro made the entry: "ongoing back problem", but there were no nerve root signs.

When Mr Wardlaw examined him in June 1996 the pursuer told him that he had been off work for two weeks after the accident and then returned. He had had "no problems" but he had noticed a niggling low back pain in the lower lumbar region. In his evidence taken on commission, Mr Wardlaw said that that description did not surprise him because quite commonly although the main injury might appeared to be at a different spot (the thoracic spine) the lower part of the back tended to take the brunt of the force in a fall such as the pursuer had had.

The pursuer was examined on behalf of the defenders on 8 September 1998 by Mr MacMaster, consultant orthopaedic surgeon. It appears that he told Mr MacMaster that he was able to return to his normal heavy work two weeks after the accident, although he still had "niggling" discomfort in his back. That did not prevent him from continuing with his normal heavy work and he did not re-attend his doctor until after the incident in March 1996. He was seen by Mr MacMaster again on 12 May 1999. Mr MacMaster further questioned him about the accident: there had been a misunderstanding between the two at the time of the first examination about this. Again, Mr MacMaster recorded that he was off work for two weeks before returning to his normal heavy job as a furniture porter and that he continued with that work until March 1996 when he sustained a further strain to his back while packing china and he had not returned to work since then. Mr MacMaster in evidence said that the pursuer told him that when he went back to work, he lifted as before. He was not on light duties and he did not request them.

Miss McQueen, another consultant orthopaedic surgeon who examined the pursuer on 2 March 1999 on the instructions of his solicitors, said this in her report:

In evidence she said that she would have been surprised if the pursuer had done any heavy lifting in the period between December 1995 and March 1996. She could however understand a niggling pain that was bearable. It was no surprise to her that the March incident occurred. The pursuer, in her view, had a vulnerable back. In cross-examination she said that anyone symptomatic in relation to the lumbar spine would be most unlikely to do heavy lifting. If the pursuer did that, it was not likely that he had sustained injury to his lumbar spine giving rise to his current symptoms.

The only other piece of evidence comes from a document which was not spoken to by the author, a physiotherapist who treated the pursuer over five sessions at Woodend Hospital, Aberdeen. When he was discharged in 21 May 1996 it was estimated that he was about 90% better, but he still had a little pain over the sacrum. He was given one month's open discharge but in the event he did not avail himself of further treatment.

So, what was the pursuer capable of doing in his job as a removal man after he returned to work in December 1995, and what did he in fact do? The sole source of evidence of what he did at work following his return is the pursuer himself. No fellow employee who worked alongside him in this period gave evidence. Although I formed a generally favourable view of the pursuer as a witness as I also did of his wife, I am concerned about the absence of any such supporting evidence, more particularly as, it would appear, the accounts he gave to those who examined him medically have differed. If, as I accept he did, he said to Mr Wardlaw in June 1996 that he returned to work and had "no problems" at work except a niggling low back pain, that seems to me to be consistent that what he told Mr MacMaster on both occasions when he was examined by Mr MacMaster in 1998 and 1999. I fully appreciate that examining physicians and surgeons can note things inaccurately when taking histories from those they are examining, despite what they say about the care they take on such occasions. I do not, however, believe that both Mr Wardlaw and Mr MacMaster got it wrong; and in the absence of direct corroborative evidence from anyone working alongside him in this period, I reached the conclusion that the pursuer was capable of carrying out his duties as a removal man in relation to both packing and portering between December 1995 and March 1996 and that he did so, notwithstanding the niggling low back pain from which he suffered from time to time in this period.

In Mr MacMaster's opinion what the pursuer sustained in the accident was a bruising injury to his back. He may had experienced niggling discomfort in his lower back, but that was not considered significant. He thought it would subside and so he did not return to his general practitioner. What in Mr MacMaster's opinion was highly significant was the fact that when the pursuer was examined on admission to the Accident and Emergency Department and Aberdeen Royal Infirmary on 16 December 1995, he had a full range of movements of his cervical spine, thoracic spine and lumbar spine. (That is stated in Mr Wardlaw's medical report of 17 June 1996: No 5/1 process.) If the lumbar spine had been injured, there would on examination have been a protective muscle spasm. Indeed, on much later examination by Mr MacMaster the range of spinal movement which the pursuer demonstrated, indicated a relatively normal spine. If there had been a fall and a direct injury to his back, it was highly improbable that the injury would be in that part of the back. There was no apparent twisting injury from the account the pursuer gave. What he sustained was a soft tissue injury to his lower back from the area of his waistband to his buttock and not beyond that - at least, if one accepted the pursuer's description of his injury. There might have been bruising of the musculo-fascia, but there was no evidence of disrupture. Mr Wardlaw had no radiological or clinical evidence from which to base his opinion that there was either a dise derangement or musculo-fascial damage. Besides, to say, as Mr Wardlaw did, that the pursuer had a musculo-fascial syndrome, was a description, not a diagnosis. Mr MacMaster found it difficult to relate to his accident what the pursuer experienced in March 1996. The first injury was bruising. The second injury occurred when the pursuer was bending forwards. It was possible, but not likely that there was a weakness rendering the pursuer's back susceptible. The second was a completely different incident from the first, and it was unlikely to have injured the same structures. In Mr MacMaster's opinion the pursuer was fit to return to work in June 1996.

Miss McQueen explained that she specialised in the treatment of injury or acute pain following that. If the pain was more chronic, her department would refer the patients to the spinal surgeons, such as Mr MacMaster. In her opinion, the pursuer sustained an injury to the facet joints in his lumbar spine when he slipped and fell onto his buttocks and the tallboy fell on top on him. That was a typical mechanism of injury to the lumbar spine. The extension of the spine resulting from the fall put pressure on the facet joints as he fell back from a seated position. Although it was difficult to say, it was possible that he twisted his back as he fell. That of itself, might not mean anything; but there would have been axial force exerted as he fell on to his buttocks and there would have been extension of the spine as he fell backwards. There could have been injury to a disc or to ligamentos structures. His back has been symptom-less before the accident. In her opinion he sustained an injury to the lumbar spine in the accident, and that rendered him unfit for his pre-accident work. He was now fit only for light work.

These two opinions which I have tried to summarise, were, of course, diametrically opposed. It was, however, central to Miss McQueen's opinion that when the pursuer returned to work after the accident, he did not undertake heavy lifting. As I have already said, if he did perform the whole range of duties, she would obviously have revised her opinions and her diagnosis. I have already found as a fact that the pursuer was able to carry on with all his duties as a removal man despite a niggling pain or discomfort in his lower back in the period between December 1995 and March 1996. And so I have preferred the opinion of the very experienced, if certainly dogmatic, Mr MacMaster. I think that his opinion accommodates the known and accepted facts in this period.

The pursuer has not satisfied me that the accident he undoubtedly sustained on 16 November 1995 caused him continuing pain or disability beyond about mid-June 1996 when he completed his course of physiotherapy and was discharged. I am similarly not satisfied that as result of the accident he lost wages beyond that time. I therefore agree with counsel for the defenders that any award in this case should be restricted to solatium. I think that an award of £1750 is a reasonable one and in respect to the pain and suffering he experienced in this period. Since that is confined to the past, interest will run on the whole sum at the rate of 8 per cent per annum from June 1996 to date. I calculate that figure to be approximately £536. I will therefore also sustain the pursuer's third plea-in-law and grant decree for the sum of £2,286 with interest thereon at the judicial rate until payment.