Scottish Court of Session Decisions

[1] In this action the pursuer claims damages from the defenders arising out of an incident while she was working in the course of her employment with them as an enrolled district nurse on 8 February 1993. By Minute lodged before the proof (which was restricted to the question of quantum of damages) the defenders admitted liability to make reparation to the pursuer for any loss, injury and damage sustained by her as a result of the said incident. It was explained by counsel for the defenders that in making that admission the defenders accepted that on that date an incident had occurred consistent with the pursuer's averments on record.

[2] On record the pursuer avers:

In addition it is averred:

[3] The pursuer gave evidence in relation to the incident consistent with her averments on record. She explained in particular how her neck got a "real bad jarring" and that her head had been pulled down nearly to her knees. She was aware of immediate severe pain in her neck at the base. With the assistance of some painkillers which she obtained she was able to continue to work that day and later in the morning reported the incident to a colleague, Sister Douse.

[4] There was no dispute at the end of the day that the pursuer had indeed suffered a neck injury in this incident. The accepted view was that she suffered soft tissue injury resulting from forced flexion when her neck was pulled downwards. It was also agreed that this injury would have caused her pain and difficulty, at least for a period of a few weeks. There were however two principal contentious issues between the parties - (1) whether and if so to what extent soft tissue injury to the pursuer's neck gave rise to problems which lasted beyond a period of a few weeks and (2) whether in the incident she also injured her left shoulder or whether a shoulder injury or condition not related to the incident later supervened. I propose to deal with the latter question first - since it gives rise to a secondary question of whether any shoulder condition was itself productive of neck symptoms.

[5] There can, I consider, be little doubt on the evidence that a shoulder problem, properly described as frozen shoulder, became manifest from the latter part of 1994 onwards and persists to date. On 21 October 1994 the pursuer consulted her general practitioner, Dr Wightman following the development of pain in the left upper arm. This she described later to Mr Kelly, the defenders' orthopaedic surgeon, as being like a band around the upper arm. At the time it appears she did not associate this with any other problems she may have been having or with the incident in 1993, which was not mentioned to her general practitioner. From about 9 November 1994 she underwent physiotherapy, the records for which suggest that one of two problems which she had at that stage was pain in a band at her upper left arm. She was referred to Mr Gentleman, a neurosurgeon, who gave evidence in the proof. His contemporary record indicated a report to him of six months of pain in the upper left arm which was now worse. He found reduced movement in the left shoulder, especially abduction, with the clinical features of a frozen shoulder. He found it difficult to test power around the left shoulder because of local pain. He noted that the shoulder problem appeared to outweigh any other difficulty. In September 1995 Mr Sharma, a consultant orthopaedic surgeon who also gave evidence, saw the pursuer after she had been referred to him. He noted that she had discomfort in the shoulder but more significantly had restricted shoulder movement with abduction, in particular in relation to abduction and forward elevation, with some pain on carrying out rotatory movements. A letter from Dr P. MacIntyre from the Occupational Health & Safety Advisory Service dated 3 November 1995 indicated that the pursuer had been seen on 21 April that year and that at that time her problem was of left shoulder pain which was particularly in a band around her arm at the level of the insertion of deltoid; she also had a decreased range of movement of the glenohumeral joint. This it was said had begun towards the end of 1994 with a gradual onset. It was recorded that on examination she had grossly restricted movement at the glenohumeral joint. A view was expressed that this was a classical left-sided frozen shoulder with abduction of less than 90% and external-internal rotation reduced to 90% in total range. Mr Gentleman saw the pursuer on 19 March 1996 for the purposes of preparing a report. At that time he found inter alia "as before" abduction of the left shoulder reduced to 80 degrees and all other movements of the left shoulder were painful. He reported:

Mr Sharma also saw her for the purposes of a report on 26 April 1996 and found continuing disability by way of restricted movement in the left shoulder. Although he described this as a left shoulder impingement syndrome (relating to rotator cuff tendinitis), in evidence he was content to use the term frozen shoulder. Mr Kelly examined the pursuer on behalf of the defenders on 17 February 1997. He found inter alia that at the left shoulder there was 30% external rotation only with an elastic end-point and this compared to 70% on the other side. Internal rotation only allowed the pursuer's hand to reach her buttock, whereas on the other side it reached the spine of T12 and there was reduction in power of external rotation and abduction. He was in no doubt that the proper diagnosis was of frozen shoulder - a condition involving the glenohumeral joint and characterised by loss of rotational movements, both internal and external rotation. It was also likely to be associated with a reduction in elevation or abduction. He was in no doubt that such restriction of motion was present at the time of his examination and that it could not have been actively reproduced by the pursuer. Of all of the witnesses who offered views in relation to the pursuer's shoulder condition Mr Kelly was by some way the most impressive. He had made, over a substantial period of time, a special study of shoulder disorders, including in particular frozen shoulder. Although he would have wished to see some further records of appropriate testing of all the relevant movements, he was in no doubt that the earlier records referred to were entirely consistent with the pursuer having had a frozen shoulder. In particular it was his view that the early complaint of pain in the upper left arm which felt like a band was entirely typical of a pain associated with frozen shoulder. This particular pain however was not obviously present when he himself reported in 1997. Finally, when Mr Gentleman again saw the pursuer on 9 March 1999, he recorded that "as before" examination of the left shoulder showed that abduction was reduced to 80% and that she had discomfort on flexion and extension. He reported no real improvement.

[6] The critical question was whether it has been proved that the pursuer's frozen shoulder was a result of the incident in February 1993. As Mr Kelly explained, frozen shoulder could either be primary (that is arising spontaneously) or secondary (to trauma). In the former case it was properly called adhesive capsulitis. His clear view in evidence however was that the mechanism of the incident was one which in his view was not likely to have produced frozen shoulder. There would need to have been substantial leverage to wrench the shoulder and overpower resistance. He found the absence of any clear report of shoulder problems at the time or in the weeks following the incident to be significant. Further, it was his clear view that the pursuer would not have been able to work on in her job (as she did) until November 1994 if she had suffered a traumatically induced frozen shoulder. Although the pursuer had spoken of some slight pain at the back of the left collar bone during the first month after the incident, this was not in his view consistent with a traumatic frozen shoulder; it was more likely to be associated with the cervical spine.

[7] By contrast Mr Gentleman (somewhat diffidently it seemed to me given that this was a matter on which he would defer to an orthopaedic surgeon) supported the view that it was more likely that the frozen shoulder was caused by the 1993 incident. This, in evidence at least, was also the view of Mr Sharma.

[8] On this matter I prefer the evidence of Mr Kelly. As already indicated, he was particularly impressive having regard to his knowledge and experience of shoulder problems. Mr Gentleman was inclined to defer to orthopaedic opinion on this matter. Further his view seemed to be to a very large degree based on an understanding that the pursuer had complained shortly after the February 1993 incident of "reduced reach". Although he had recorded that history when the pursuer first saw him in March 1995, he noted in March 1996 that her account was that this reduced reach became manifest shortly before she consulted her doctor in the autumn of 1994. This was consistent with the pursuer's evidence. Although the patient had fallen to her left the pursuer was quite clear that she did not suffer reduced reach until 1994 and maintained that she had not at any stage told Mr Gentleman anything different. In any event according to her it was pain felt in her neck which accounted for her feeling of reduced reach when it did manifest itself. Equally Mr Sharma's view on this matter was dependent on the history of the pursuer having suffered some degree of pain and stiffness in the shoulder long before July 1994, although he thought such pain and stiffness could have been masked by other more dominant neck pains. There was no real evidence from the pursuer herself of any such problem. There was further no obvious linking of the February 1993 incident to the shoulder problems found by Mr Sharma in any of his early reports. This, it has to be said, is also true of the written reports of Mr Gentleman. It is true that Sister Douse completed an accident report on 3 March 1993 with the note "? strained muscles to the neck and shoulders" but in evidence she was not able, it seemed to me, clearly to explain why she had thus noted these words, and the pursuer thought simply that she had told Sister Douse that she had hurt her neck.

[9] There remains the question of whether the pursuer's condition of frozen shoulder is primary or secondary (that is post-traumatic in origin). I have come to the view that the probability is that it is a primary frozen shoulder. This, Mr Kelly explained, was the most common form of frozen shoulder appearing very often without apparent cause in middle-aged females. There was no clear evidence of any traumatic incident which could be said to have been the likely cause. Although the pursuer told Dr Wightman on 21 October 1994 that she had been struck by a car door (the note suggests she said six weeks beforehand, although in evidence she maintained she had said six months before), she explained, somewhat oddly, in evidence that on the occasion in question a car door had brushed against her lightly. Although, if that is right, it is difficult to understand why it was mentioned at all and although it sits uneasily with Mr Sharma's report of April 1996, where he records that according to the pursuer the car door incident had caused bruising and pain for a period of time, there simply was no evidence of any wrenching of the shoulder occurring at that time. Ultimately Mr Kelly accepted that he did not have sufficient information to enable any clear link to be made between the frozen shoulder and this apparent incident with the car door. Although equally he gave evidence that with primary frozen shoulder most patients achieve resolution of the problem within about two years, he did explain that it was not unknown for a primary frozen shoulder to give problems for much longer and in evidence he indicated that some would "persist almost indefinitely". In circumstances where the pursuer gave evidence that she had not sustained any wrenching injury to her shoulder, the probability is it seems to me, as already indicated, that the condition is a primary one.

[10] There remains the important question of whether, and if so to what degree, the soft tissue injury which she sustained to her neck in February 1993 caused and continues to cause problems beyond pain and difficulty for the first few weeks. The pursuer's position was that it caused and continued to cause problems for her. It was her evidence that although she only stopped work in November 1994 on the advice of the physiotherapist, she had from the date of the accident only been able to manage her work with a degree of difficulty. Initially she described the severe pain she felt on the day in question as being at a level of ten on a scale of one to ten. In the three weeks or so which followed she assessed the pain in the neck as being of a scale of between four and five and that the level remained about the same until about October 1994 when it began to get worse. For the first two weeks she had taken paracetemol at least eight times a day. The reason she did not go off work at least initially was because of a shortage of staff. She had not complained to her doctor about neck problems. She had been able to cope and thought that the problems might go away. In June or July 1994 she felt a worsening of neck pain. She began to feel a sensation of pins and needles going right down to her fingertips. She was not helped by the physiotherapy. Thereafter matters had not improved. She now has continuous neck pain all the time, although some days it was worse than others and it had begun to creep into her right shoulder. She still felt pins and needles down her left arm and also down her back at the left side of the spine.

[11] On behalf of the defenders it was argued that the pursuer could not be accepted as credible and reliable in relation to her continuing apparent neck problems. It was stressed that she had apparently exaggerated the initial pain and difficulty. She had made no apparent complaint to her general practitioner's practice during the relevant period before November 1994 notwithstanding that the notes disclosed that she had attended on a number of occasions in respect of other matters.

[12] The pursuer was certainly not a good historian. There were, for example, a number of discrepancies between what she had said at various times, even to Mr Gentleman alone. Further, it is difficult to accept that if the level of pain initially had indeed been at a level of ten she would have been able to carry on working, however well intentioned. Further, I had no reason to doubt the evidence of Nursing Officer Halloran that the pursuer told her on 2 March 1993 that she had not suffered any significant problems and had none then that required her to consult her general practitioner. Equally it is quite clear that she made no complaint of neck problems to her general practitioner, far less related her problems to the accident, in the period prior to November 1994. In addition, Mr Gentleman made a clear note when he first saw the pursuer in March 1995 that she was complaining of no neck pain at that stage. Her neck movements appeared reasonably full. None of the tests carried out by or on his instructions revealed any neurological deficit.

[13] On balance however, although I do think the pursuer tended to exaggerate the problems, and although it seems plain in light of Mr Gentleman's evidence that they cannot have been constant, I am satisfied that the pursuer at least had some continuing neck symptoms on and off up until the time when the frozen shoulder symptoms became manifest. There was evidence that she was not the sort of person who was a "complainer", and on 2 November 1994 she apparently told her G.P. of neck pain in addition to the arm pain of which she complained on 21 October. The doctor's note for this referred to "cervical route pain". The physiotherapists' records noted that at the time, and in addition to the pain at the top of the arm, there was "constant" pain in the area of the neck, spreading up and across the shoulders. A further note suggested that the physiotherapists were told that these problems had been on and off but were recently worse. It appears that there was mention to the physiotherapists of the incident in 1993. Dr MacGregor, who saw the pursuer on a number of occasions, referred the pursuer to Mr Gentleman on 27 January 1995 with a note of persistent pain "in her left arm and shoulder and her neck", although she agreed that the medical records suggested that neck pain did not predominate until June 1995.

[14] It was agreed that in ordinary course the pursuer could have expected to recover from a soft tissue injury of the type she suffered within a few weeks. Dr K. M. Rogers, consultant in anaesthesia and pain management, gave evidence that the continuation into late 1994 of the neck problems, with pain radiating across the shoulders and down the arm and the feelings of paraesthesia, could readily be explained (notwithstanding the absence of any neurological deficit) in terms of the development of a chronic pain syndrome. He explained that microscopic damage to soft tissues could stimulate pain-sensitive nerve endings which would heighten appreciation of pain. He explained that pain could become chronic as the result either of healing and scar formation within the soft tissues or by altered thresholds of pain perception within the central nervous system as the result of chronic stimulation. The fact that the pursuer chose to work on and that she obtained no treatment would not have helped. He was in no doubt that thereafter the pursuer's continuing problems (apart from the shoulder problem which he did not address) were explicable in terms of the chronic pain syndrome stemming from the original soft tissue injury. This was, as I understood it, also the evidence of Mr Gentleman. It was his view that in addition to a frozen shoulder the pursuer had post-traumatic neck and upper limb pain with a limitation of neck movements in all directions. On this matter I found Dr Rogers and Mr Gentleman persuasive. Mr Kelly did not seriously question their current diagnosis of chronic pain syndrome in relation to continuing neck and associated problems. It was his view, however, on the balance of probabilities, that when the frozen shoulder problem emerged it led to increased strain being put upon the neck, and to an exacerbation or reactivation of the original neck injury, which had been relatively symptom free for a long period. He had not however had the advantage of hearing the evidence of the general practitioners, nor had he had any sight of the physiotherapy records. While I am inclined to accept his view that the emergence of the frozen shoulder could not have helped, the balance of the evidence suggests to me that the main cause of continuing neck and associated problems is a more direct link with the incident in 1993, explicable in terms of a chronic pain syndrome.

[15] As regards prognosis Dr Rogers was extremely guarded in relation to the problems thus explicable in terms of chronic pain syndrome, and Mr Gentleman was not at all optimistic that there would now be any significant improvement.. On the evidence the prognosis must be regarded as equally poor in relation to the marked restriction of shoulder movement, which now appears to be the main symptom of the frozen shoulder. Although Mr Kelly was hopeful of some improvement in 1997 he was much more pessimistic if (as had happened) it has continued to be problematic since. It would appear that the pursuer's adhesive capsulitis is one of those which will persist indefinitely. There was no clear or persuasive evidence that a primary condition such as this could itself develop into a chronic pain syndrome, and the main symptom, as indicated above, is an objectively determined restriction of shoulder movement.

[16] It was agreed between the parties that if all the pursuer's symptoms were attributable to the accident on 8 February 1993 the appropriate figure for solatium was of £13,680 inclusive of interest. In the light of the findings I have made above, a deduction requires to be made in respect of pain and difficulty due to the condition of frozen shoulder from at least October 1994 onwards. Although the evidence appeared to indicate that shoulder problems tended initially to predominate this has not obviously been the case since 1996. Further, in the light of the findings I have made, the pursuer has suffered pain and discomfort in relation to the neck for a longer period, indeed from the date of the accident. It was part of the parties' agreement that if the accident on 8 February caused pain and discomfort to the pursuer for a period of a few weeks only (which was the defenders' primary position) the appropriate figure for solatium, inclusive of interest, would be £1,563. In all the circumstances I consider that an appropriate figure for solatium, inclusive of interest, would be £8,500.

[17] The pursuer gave evidence that since November 1994, when she gave up work, she has been given assistance by her daughter with things that she no longer can do - such as housework, decorating, cleaning and cooking. Her father and brother have also helped in respect of the garden. The assistance given by the pursuer's daughter increased from about late 1996 when the pursuer's neck worsened. It was agreed between the parties that if all of the pursuer's symptoms were attributable to the accident on 8 February 1993 any award for services under section 8 and section 9 of the Administration of Justice Act 1982 should be in the sum of £5,500, inclusive of interest. Doing the best I can it seems clear on the evidence that some of the services afforded by the pursuer's family would have been required in any event because of the frozen shoulder condition. On the other hand it cannot be said that all of them would have been needed, and the pursuer's needs in these respects did increase in 1996 when her neck problems became worse. In relation to cooking, for example, she required help because she tended to drop things by reason of the lack of feeling in her hand. It seems to me that a suitable proportion of the overall agreed figure for services attributable to the accident would be £3,000, inclusive of interest.

[18] The pursuer stopped work in November 1994. She retired from her employment as a district nurse in June 1996. It seems plain from the findings I have made, and not least having regard to the occupational health assessment previously referred to, that even if the pursuer had suffered no accident in February 1993 she would in all probability have required to give up her employment in any event by reason of the supervening frozen shoulder condition and that she would still have been unemployed as a result thereof. As above indicated there can, regrettably, be no realistic expectation that this condition will improve. In these circumstances, and consistent with the approach in Jobling v Associated Dairies Limited 1982 AC 794, to which I was referred, I do not think it appropriate to award any sum in respect of wage loss, past or future. Equally, for the same reason, I do not think that the pursuer is entitled to any sum in respect of loss of pension rights. I record however with gratitude that the parties were able to furnish me with agreed figures which would have formed the basis for any awards in these respects. I record also that I was referred to Wardlaw v Bonnington Castings Limited 1956 S.C. (H.L.) 26, McGhee v National Coal Board 1973 SC (HL) 37, Baker v Willoughby 1970 AC 467 and Wilsher v Essex Area Health Authority 1988 AC 1074 in the course of submissions, but in the light of my findings I do not consider that any of these cases are of particular assistance.

[19] In the whole matter I shall repel the defenders' first three pleas-in-law, sustain the pursuer's first plea-in-law and pronounce decree in the sum of £11,500. No part of that sum is attributable to any of the heads of damage referred to in column 1 of Schedule 2 to the Social Security (Recovery of Benefits) Act 1997.