Scottish Court of Session Decisions

1 May 2001

[1] This is an action of reparation in which the pursuer claims damages in respect of injuries, and the consequences thereof, that he sustained during his attendance on a police training course with his then employers, Grampian Police, in January 1996. The course inter alia involved training in the use of the application of handcuffs and, in relation to this case, the use of a particular type of police baton for defensive purposes. The baton in question known as a PR 24 was of American design and manufacture with a telescopic extension and a handle at right angles to the stick part of the baton. It is No.7/8 of process. Those attending the course worked in pairs, taking it in turns to practice the technique of resisting attack using the baton while the partner struck at it with a training baton (7/10 of process) which was made of a light plastic material, but in this particular case was also padded. One of the issues in the case is how realistic this training had to be, but there was general agreement that the amount of force to be involved had to be more than merely touch type or nothing would be achieved by the training course.

[2] The techniques involving three different types of blocking can be observed upon a video which was played to me at the beginning of the case. Quite simply they involved blocking techniques at three different levels, high, middle and low.

[3] What is important, however, is that the baton had to be held along the forearm to absorb the blow from the attacking baton.

[4] At the end of the first day of this training (a Thursday), the pursuer appeared to have bruising on his arm, which by Saturday had developed to what can be seen in the photographs 6/12 of process. The issues of damages do not however end there since the pursuer has subsequently developed a serious psychological injury or syndrome which largely it appears, through pain, renders him very substantially disabled and unfit for any form of employment.

[5] The pursuer gave evidence on his own behalf, supported by his wife and sister on the issue of damages. He led evidence from a number of policemen involved with him on the course, including his partner, Constable Graham Wilson, and all the instructors involved, namely, Sergeant Stuart Ednie, Constable James Gill, Constable John Main and Sergeant Mark McLaren. All of these officers had attended a baton training course themselves to be trained as instructors, with Strathclyde Police. He also led evidence from other persons attending the course, namely, now Inspector, then Sergeant, Sandra McIntosh, Sergeant Christine Morris and Constable Henry Dey. More general evidence was led from the officer in charge of the course, Inspector Brian Jones, from Inspector Brian Connell, who had experience of the general training course at Tulliallan Police College, and Sergeant Stewart, an instructor at Tulliallan.

[6] In respect of damages the pursuer led evidence from Professor Sir Michael Bond, the eminent psychologist and psychiatrist being currently the Professor of Psychological Medicine at Glasgow University and from an Edinburgh based psychiatrist Dr Alex Stewart. He also led his former commanding officer on the issue of promotion prospects, a now retired Mr Simpson.

[7] For the defence evidence was led from Graeme Milne, now an instructor at Tulliallan, who had been involved in training the Grampian Police force and, in particular in the officer training programme in 1996, from Terry Smith, an American who worked for the manufacturers of the baton in question and had been heavily involved in developing the techniques involving its use, and from Steven Kissane, an English police officer, heavily involved with baton training courses in that jurisdiction. On the damages issue evidence was led from Mr Dennis Blyth, a pensions expert, and medical witnesses, Mr Jeffery Hooper, a consultant orthopaedic surgeon and Dr Ian Tierney, a chartered clinical psychologist. Finally, evidence was led from Superintendent Kelman, who is in overall charge of the Human Resources Department of Grampian Police whose evidence was related to the prospects of promotion as far as the pursuer was concerned in contrast with the evidence of now retired Sidney Simpson.

[8] Very few issues of credibility arise in this case, perhaps the sharpest being between Mr Simpson and Superintendent Kelman as to the pursuer's likely prospects of promotion. Before turning to the conclusions I have reached upon the evidence, I would reject at once any suggestion which was never really made, that the pursuer throughout the case both in relation to merits and the consequences of the initial injury, is either a malingerer or to any material extent an exaggerator, although his reliability at times may be slightly coloured by the feelings of resentment he has towards the police force about the way he was treated, which is a major element in this case. I have no reason essentially to disbelieve him or reject him on any material questions in this case. Equally there is no other witness on the merits that I would single out as being unacceptable in terms of either credibility or reliability. Indeed much of the evidence coincided, and the narratives therefore that I am about to set out reflect a distilled position that I have tried to achieve from my assessment of the various witnesses on all aspects of the case.

[9] As I have already indicated the pursuer's course started in January 1996 and ran from Monday 8^th to Friday 12^th. On Thursday 11^th he was engaged in the baton training, paired with Graham Wilson. The session lasted perhaps an hour. They were instructed to hold the attacked baton as tight as they could to prevent vibration or percussion injury from continual beating. There was some suggestion which I accept that at times Mr Wilson seemed over vigorous or enthusiastic in his application of the training baton and that he was warned in this respect. At the end of the session the pursuer complained of feeling some pain or discomfort in his arm and in the course of the evening and the following morning it developed into bruising and swelling. It appears that at the course the next day he was told to wear what is called a tubi-grip, which is simply an elastic stocking which would have no protective effect as far as the application of the baton. On 13 January he went to his general practitioner, by which time the arm was very painful. He was concerned that he might have an injury to the bone. The swelling and bruising continued until it covered the whole arm and he returned to his general practitioner on Monday. He, apparently, prescribed an antibiotic and anti-inflammatory drugs being concerned that there was an infection, in respect to which there was not a shred of evidence and never has been in this case. He was signed off, but he was still anxious to try and do some work. On 25 January he developed parasthesia, and went back to his doctor who referred him to the Accident and Emergency Department of the local hospital. Thereafter he underwent physiotherapy. The bruising disappeared by March, but there was still swelling. By the end of May he felt able to go back to full duties and did so. By the summer he was back on full duties but still getting pain, but it gradually became worse, together with the parasthesia, namely pins and needles. It started to affect his sleep. He attended an orthopaedic surgeon who conducted nerve conduction studies which showed that everything was normal. On 24 December he was back on light duties. He still wanted to be a policeman but he could not cope with the pain which was developing in the right arm and the elbow. By this stage it was apparent to the doctors treating him that he was suffering from depression and he attended a pain clinic. Things got sufficiently worse for him to be signed off in June 1997 and he never returned to work in fact. In September 1997 he was recommended as unfit for police duties and his employment was terminated. He has not worked since.

[10] By this stage his normal family activities were being seriously disrupted. Through a friendship he attended Cannisburn Hospital in Glasgow for a consultation with a Mr Taggart, who suspected a condition known as reflex systematic dystrophy. He was made an in-patient at that hospital for three weeks, where he underwent four guanethidine blocks under general anaesthetic. This treatment was coupled with intense physiotherapy and he expressed the view that he felt much better once he had left the hospital, both in himself and his ability to control pain. However, after a good month, matters deteriorated to the extent that he had very little power in his limbs and he became more irritable and depressed. Latterly he developed pain in his right arm and right side and was now suffering from incontinence. By the time of the start of this proof his general condition had stabilised but was serious disabling, largely attributed to various outbreaks of pain. There was general agreement amongst the doctors that there was no clinical base to support those features.

(2) Factual aspects of the merits of the pursuer's case

[11] There was general consensus amongst the witnesses that the training course contained the risk of injury. The report, 6/30 of process, made it quite clear that blocking techniques carried a high risk of injury and this was reported by the expert evidence of Inspector Kissane and Inspector Connell. Some of the witnesses received light bruising, such as Stewart when he attended the training course in December 1995 as also did Sergeant Ednie and Constable Gill. The key to minimising that risk was a proper grip with which the baton was held and control of the amount of force that was used in the attack by the partner. This was particularly spoken to by Inspector Kissane and Terry Smith, albeit he felt that full force was required to maximise the reality of the training. The former's evidence was that less force was now being used at Tulliallan, but he was critical of that to the extent that it minimised or reduced the extent to which the training was really realistic. There was total consensus that the injuries that the pursuer appears to have sustained by reference to the photographs were not just unusual but highly exceptional, if not unique in relation to all those people who had been involved in either the instructors course or the actual course. All the instructors expected, or indeed said they required, any persons on the course who sustained an injury to report it. However the balance of the evidence would suggest that such minor bruising as might have occurred to various members of the course, did not merit, in their mind, the need to report. The pursuer was therefore an exception and it is a legitimate conclusion that his injury was therefore more serious than that sustained by any other person, both in general terms and also on that particular course in January 1997. Sergeant Milne, particularly, accepted that the nature of the injury was such that it called for an explanation.

[12] After the pursuer's report of the injury and the realisation by the authorities that he had sustained it, attention was paid to how the course might be repeated and the Grampian Police ultimately introduced what is called the Neoprene sleeve to provide arm protection. They are the only Force so to do.

(3) Submissions on the merits

[13] Counsel for the pursuer submitted that the very fact that the pursuer had sustained an injury to the extent that was revealed by the unequivocal evidence, indicated a failure on the part of the officers running the course properly to look after his welfare. The duties pleaded were specifically against those officers and involved not only devising a proper system to supervise the course but also to exercise proper supervision and control. This involved monitoring the amount of force being used, having initially given instructions to that effect preventing horseplay and dealing with any exaggerated or excessive zeal on the part of a particular participant who was striking the blow. Adopting Sergeant Milne's position, counsel submitted that the nature of the injuries called for an explanation which was not forthcoming to the extent of being consistent with the discharge of the formal duties of care incumbent upon those running the course. Even if some risk of injury was inevitable, it was the duty of the staff to minimise it and the evidence showed in the result that that had not been achieved. It was not necessary to determine whether it was through want of supervision or lack of instruction as to the degree of force. What had happened should not have happened and while the case was not res ipsa loquiter it raised the presumption of a failure to take care which had not been rebutted.

[14] Counsel for the defender's position, in stating the opposite, was to the effect that while there was a general duty to take for the safety of those on the course, there was an obvious risk of injury and the fact that the injury occurred therefore did not demonstrate a want of reasonable care. Every precaution had been taken in devising the way the course had been carried out consistent with trying to achieve realism. Arm protection would not so achieve that result. A moderate degree of force was required in any event. If the case was based on want of supervision there is no evidence that the blows which caused the injury had necessarily occurred before a supervisor might have been able to prevent it. It was impossible to be proactive beyond issuing a general instruction as to the level of force to be used. The evidence did not disclose that the officers in charge of the course had required such a degree of force that went beyond what was necessary. At the end of the day the pursuer had failed to establish a failure on the part of the defender's officers to take reasonable care for the safety of the pursuer consistent with what the training course was required to achieve. There was no evidence to support the use of a Neoprene sleeve in advance of the pursuer's incident. Nor did the evidence disclose that necessarily it had made any difference in the result. Obviously the safest or easiest way to reduce the risk of injury was to reduce the level of force being applied, but the more that was done the less realistic and the less useful the training course would be, bearing in mind that it was designed to reflect what was likely to happen in the field.

(4) Conclusions on the merits

[15] There is no doubt that the defender, through the officers in charge of the course, owed a duty of care for the safety of those taking part in it which obviously included the pursuer and that duty, in particular, required the minimisation, so far as reasonably practicable, in my opinion, of the inevitable risk of some injury occurring because of the nature of the activity involved with the baton. I would adopt from the speech of Lord Reid in Morris v West Hartlepool Steam Navigation Company 1956 A.C. 552 at p.574 where his Lordship says:

[16] This passage was followed in Brisco v Secretary of State for Scotland 1997 S.C. 14. In the Morris case, liability was established by a majority in the House of Lords upon the view that the precaution desiderated which would have probably prevented the accident was not encompassed by much difficulty or expense. Whether in the present case the matter is looked at upon the view that there was only a risk of minor injury and that according a risk of major injury, such as what the pursuer actually sustained by way of extensive bruising, was not foreseeable, or whether I view it upon the basis that it has not been established that there was a precaution not taken, upon the evidence that I have found established, by the defender, which would have avoided the actual bruising that occurred, the outcome seems to me to favour the defender.

[17] I am satisfied that considerable care was put into the formulation of the course. The issue of the volume of force was addressed as was the question of technique to a substantial, if not, total extent. I recognise that realism, so far as it could be reasonably achieved, was essential and that therefore what had to be balanced was a sufficient degree of force to create a realistic position against the risk that excessive force might cause an excessive injury. It is true that the pursuer's injury appears to have been a one-off and might call for an explanation, which is not immediately forthcoming. Whether such occurred because Wilson was using too much force or because the pursuer's technique was suspect is only speculative, but there is no evidence that would suggest any further supervision would have avoided either of those two situations before the event which caused the injury whatever that might have been. In my judgment, at the end of the day the pursuer has failed to established that there was a precaution that should have been taken which, if taken, would have prevented his actual injury. I am not prepared to draw an inference of failure to supervise in relation to the degree of force being used since I regard that as speculative in the sense that I cannot rationally base such a conclusion upon the evidence that is available. I do not consider that there was any requirement at the time to use a sleeve. I am not satisfied, even with hindsight, that such should have been used, again viewing the matter from the point of view of realism. If the obvious precaution was to limit the degree of force which appears now to have been done at Tulliallan, the disadvantage, to pick up Lord Reid's statement in Morris would be the devaluation of realism. In this respect, I recognise the evidence of Sergeant Stewart who was fairly dismissive of the level of force now being used at Tulliallan.

[18] At one stage I was impressed by the possibility that the pursuer had raised a sufficient presumption of fault by reason of the existence of the injury, to require the defender to produce a specific rebuttal, but at the end of the day it is my conclusion that the pursuer has failed to prove, or perhaps to state the converse that the defender has successfully established that there was no failure on the part of the defenders to take reasonable care for the safety of the pursuer in relation to the way the course was being carried out. This action therefore fails on the merits.

(5) Damages

[19] Counsel were substantially agreed on many aspects relating to damages, in particular generally in relation to quantification of wage loss with the exception of a minor disagreement on how to calculate future loss. There was general agreement in respect of solatium, albeit a slight variation between the parties of £5,000 and in relation to certain subsidiary claims with regard to services and financial loss. They were however at odds on the issue of promotion and seriously at odds on the question of pension rights.

[20] Before turning to these matters in detail, however, I am required to address an issue put before me by counsel for the pursuer in relation to the decision of the House of Lords in Page v Smith 1995 2 A.E.R. 736.

[21] That case was concerned with damages for personal injury in relation to psychiatric damage and nervous shock. There was no physical injuries to the plaintiff. The House of Lords held that even if there was no physical injury damages could be obtained by a person suffering nervous shock without it being necessary for it to be proved that such was reasonably foreseeable, provided there was a direct connection between the original traumatic incident and the psychiatric illness.

[22] With all respect to counsel for the pursuer, I do not consider that this case bears upon the issues before me having regard to the fact that the pursuer did in fact suffer some physical injury, namely the bruising. The issue to be determined by me is whether or not there is a direct correlation between that injury and the psychiatric illness from which the pursuer now undoubtedly suffers which can be classified as a pain disorder having no physical base. The issue, as I see it, is entirely one of causation and if there is no direct link between the original bruising and the current condition which is having such a disabling effect, damages would be limited to bruising alone. A similar situation obtained in Graham v David A Hall Ltd 1996 S.L.T. 596 where a pursuer's psychiatric or psychological problems were separated by the Lord Ordinary as a matter for causation from the original minor back injury and not reflected in the damages award.

[23] I therefore see the issue simply as one of causation and I have to determine whether or not the pursuer's psychological problems were at least materially caused by the original bruising injury in the sense of being directly related to it. If the answer to that question is in the affirmative, the damages in this case would be very substantial; if it is in the negative, almost minimal.

[24] The only orthopaedic evidence before me came from Mr Hooper, who confirmed that there was no physical or organic base for the pain and discomfort from which the pursuer appears to be suffering and, which is the cause of most of his disability in relation to both movement and emotional distress. The psychological and psychiatric evidence generally agreed that he was suffering from a major depressive disorder which was identifiable and a pain disorder associated with those psychological factors. He was also becoming dependent upon painkillers. Professor Bond was plainly of the view that there was a direct correlation between the original injury and those conditions, albeit that the whole attitude was coloured, if not flavoured, by a strong sense of resentment on the part of the pursuer about the way he was treated by the police force, both immediately after the event of the bruising occurring and his subsequent dismissal from the force. Dr Stewart emphasised the extent to which the pursuer was having to cope with the problems he now faced having been previously a very active man and was psychologically incapable of so doing. Dr Tierney, as a psychologist, put greater emphasis on the relation between the psychiatric or psychological disorders and the resentment issue, and at one point seemed to favour the view that if he had felt he had been treated fairly and properly the psychological problems would not have developed. It was this last point that counsel for the defender seized upon as the issue identified in Graham and invited me to hold that there was no direct link between the original injury and the psychological problems, such being related to how he was treated after the event, which was not part of the case of fault.

[25] Counsel for the pursuer strongly emphasised that there was no issue on the pleadings that some form of novus actus interveniens had emerged in this case to break the chain of causation. If there was a direct link between the resentment the pursuer held and his current psychological problems, they were still part of the overall sequelae of the original injury. The position of counsel for the defender was derived directly from Graham pointing to another cause completely separate from the original bruising, namely the resentment issue as the base upon which the psychological problems had developed.

[26] Insofar as the evidence of Professor Bond and Dr Tierney diverged on this point, and I am not entirely satisfied that they really did, the issue being more one of emphasis, I would prefer the approach of Professor Bond, who is an extremely eminent and experienced doctor, generally in the field of psychological or psychiatric medicine and particularly in the field of pain and pain syndrome. He had no doubt that the resentment issue featured strongly in the case, but he still derived the basic problems from the original injury and the way the pain developed from that point. It has to be borne in mind that the pursuer's problems persisted prior to his leaving the police force long after the bruising itself had completely cleared up. On my assessment of the matter, while the resentment issue is important, I considered it to be a contributory factor, not breaking any causal link between the original injury and the pursuer's current problems. I do not see this so much "an egg shell skull" case as rather one which upon the evidence a psychological condition has developed directly from an original traumatic, albeit relatively minor, injury. In these circumstances I consider that the assessment of damages requires to take into account all the sequelae that have actually happened in the pursuer's medical history to date and the prognosis thereon, which on the view of all the doctors is very poor. Professor Bond spoke about the possibility of the pursuer going on a rehabilitation course relating to the treatment of pain, of which he is known to have had some success but he was not over optimistic as to how the pursuer at this stage of the development of his illness would react to it. I should add, that while I recognise the distinction that was drawn on the evidence in Graham, it appears that the condition was related to hypercondrias which is wholly separate from any sequelae to the original back injury, although it again it appears to be related to bitterness and resentment. I do not suggest that Graham was necessarily wrongly decided upon its facts so far as they are disclosed in a short report, but I do not consider the same patterns to be found in this case upon the evidence that I prefer, particularly that of Professor Bond.

[27] Before turning to the actual figures I require now to resolve the issue in relation to the pursuer's prospects of promotion within the police force, where there was a sharp conflict of evidence between his former commanding officer, Mr Simpson, now retired, and Superintendent Kelman, who still is in charge of human resources at the Grampian Police. The evidence of Mr Simpson was emphatically to the effect that the pursuer would have undoubtedly have achieved the rank of Sergeant and probably Inspector. He based this on his own experience of the pursuer while working under him, and his assessment of his qualities. Superintendent Kelman explained to me at some length how the police promotional system now works, it having changed quite radically over the last few years. Essentially it involves written tests and an assessment as to whether a person is appropriate for the particular rank. Once a selection of a number of people for a particular rank has been made against that background, the vacant posts are filled from that group. Inclusion in the group does not therefore guarantee promotion, being concerned with eligibility. It is therefore a two-stage process. First it is necessary to pass the assessment process and, secondly, the person has thereafter to be selected. Passing the assessment process therefore does not automatically obtain promotion for the officer in question, which substantially depends upon what vacancies are available at each level of rank.

[28] In this context the defender's counsel dramatically demonstrated in cross examination that in fact the pursuer had a number of failures under the old assessment process in relation to written examination and this he submitted bore strongly on the unlikelihood of him being promoted to even to Sergeant. Superintendent Kelman was somewhat of the same view.

[29] I am not persuaded that the pursuer's initial problems with regard to examinations and assessments necessarily bear upon the question which ultimately has to be resolved, namely whether in due course he would have been promoted. Mr Simpson and Superintendent Kelman were both impressive witnesses, but I think on balance the evidence of Mr Simpson is probably to be preferred as having more intimate knowledge of how the pursuer was working both as a policeman and with his colleagues. It is not without significance that he was considered suitable for firearms training which by definition carries a high degree of responsibility.

[30] In my opinion, the situation calls for a compromise since I am not satisfied necessarily that Inspector rank would have opened to him. I am prepared to accept on the balance of probabilities however that he would in due course have qualified for and have been appointed as a Sergeant and damages will be assessed on that basis.

[31] Before finally turning to the actual figures, I now deal with the issue of pension loss, where the dispute between the parties relates to whether deduction should be made from the gross calculation of the figures which are agreed in the joint minute. The deductions would be based upon the common law principles established in Parry v Cleaver 1970 AC 1 as reinterpreted in Longden v British Coal 1998 AC 653 with regard to ill-health, pension and injury gratuities. Applying the principles established in those cases at common law, counsel for the defender produced a calculation which effectively reduced the figure agreed in the joint minute as the gross figure down to a comparatively small sum reflecting the deductions which had in his opinion at common law to be made, against the background of those cases. The precise figures are not material to the question for decision because it is one of principle having regard to the decision in Cantwell v Criminal Injuries Compensation Board 2000 S.C. 407. That decision of the Extra Division does not query the general common law approach based on Parry v Cleaver but was rather concerned with the construction to be put upon section 10 of the Administration of Justice Act 1982 and particularly sub-sections (a) and (b). The former requires there to be left out of account in the assessment of damages inter alia "any contractual pension". The latter sub-section requires to be left out of account any pension or retirement benefit payable from public funds. With obvious reluctance, having regard to the obvious inequity of awarding damages for loss of pension rights which takes no account of the actual pension to be received, the court held that sub-section (a) applies to a contractual pension, that the pension in this case is contractual, and that accordingly no account should be taken of it, thus giving the pursuer a gross claim for loss of pension rights at the agreed figure in the joint minute.

[32] Counsel for the defender recognised the difficulties of my position as an Outer House judge, given the status of Cantwell but nevertheless argued that to be properly understood this pension was not a contractual one, but was rather, based on the evidence of the actuary and the relevant regulations, a statutory entitlement not contractually based. He further submitted that it was not a pension solely from public funds, because it was contributed to by the employee. Thus sub-section (b) did not also apply. His position therefore was that the peculiarity of the police pension being a statutory entitlement caused it to fall between sub-sections (a) and (b) and therefore neither applied. Accordingly the deductions that he sought could be made. Counsel for the pursuer's position was simply that standing Cantwell my hands were tied.

[33] I have endeavoured without success to discover from the report of Cantwell upon what basis the issue of whether or not the pension, which was also a police pension in that case, was contractual was determined. If it had gone on a concession I might have felt able to take a different view to that of the Division, but I do not feel able to do so since the case seems directly in point and was decided on precisely the same pension background. Speaking for myself, I consider there is considerable force in the submission by counsel for the defender that this type of pension based on statutory entitlement which is to some extent contributed to from private funds falls under neither sub-section (a) or (b), but I cannot reach that determination by reason of the binding nature of the decision of Cantwell upon me, which I understand, in any event, is going to the House of Lords. I have therefore to regard the argument presented on behalf of the defenders as a formal one and reject it purely because of binding precedent.

[34] Quite separately counsel had a separate submission which drew out a slightly smaller sum than that achieved by the pursuer in the joint minute on the basis of accrued rights which when added to the expected lump sum on retiral, achieved a figure of about two-thirds of that claim by the pursuer and agreed in the joint minute. I do not accept that approach, not being rationally based.

[35] Against that background, I consider the approach that the pursuer has put forward in reaching the figure in the joint minute to be an acceptable one, being calculated on the actual figures. I therefore support the pursuer's position in relation to the loss of pension rights.

[36] Turning finally to the figures, there was substantial agreement, apart from the issues, with which I have dealt, although counsel for the defender sought slightly to reduce the multiplier for future loss to reflect the vicissitudes of life. However, the schedule that was produced to me on behalf of the pursuer proceeds upon the Ogden Tables under its specific reference to the relevant ones and I am content to hold that calculation as relevant, and acceptable. I also accept the pursuer's figure for solatium.

[37] Damages are accordingly assessed as follows:

[38] In the foregoing circumstances, if I was going to award damages it would be in the sum of £818,084.21, inclusive of all interest claims to date.

[39] For the reasons I have given, I will however sustain the defender's third plea-in-law and grant decree of absolvitor.