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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Franklin v Grampian Police Chief Constable [2001] ScotCS 134 (30 May 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/134.html
Cite as: [2001] ScotCS 134
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD McEWAN in the cause JOHN MURRAY FRANKLIN Pursuer; against ANDREW G BROWN, THE CHIEF CONSTABLE OF GRAMPIAN POLICE Defender:
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Pursuer: Stewart, Q.C., Graham; Balfour & Manson (for Hughes Dowdall, Solicitors, Glasgow)
Defender: Brailsford, Q.C., Smart; Simpson & Marwick, W.S.
30 May 2001
[1] In this action of reparation the pursuer, who was a serving police officer, seeks damages for injuries sustained while working in the course of his duties as a constable with Grampian Police. It is alleged that the injuries were sustained as a result of his taking part in an officer safety training course in March 1996. The course was held to train officers in the techniques of the use of new rigid handcuffs and a new type of baton. The pursuer claims that his wrists were injured as a result of the training with the handcuffs.
[2] Apart from his own evidence the pursuer led his wife Mrs June Franklin, Inspector Connell, Constable Morgan and Doctors Doherty, Morrison, Coleman, Matson and Götz.
[3] The defenders led Inspector Bowman, Sergeant Gurling, Dr Lawrie and Mr Hooper. A joint minute agreed damages on two alternative and restricted formulae, and a number of hospital records.
[4] The case made on Record is a simple and straightforward one. The defenders are said to have a duty to take reasonable care to provide protective equipment for the wrists of trainees; to take reasonable steps to prevent the twisting of wrists in the compliant party; to observe the tape on the pursuer's injured wrists and seek an explanation; to give an appropriate safety briefing and to explain the "Pat out" rule (explained in evidence as a means to make the person in the rôle of the policeman desist). I note that these duties are met with a bare denial.
[5] I now move to sketch in the submissions of the parties. Senior counsel for the pursuer invited me to sustain his first plea-in-law, to repel the defender's second and third pleas-in-law and grant decree for the sum of £108,137 with interest at eight percent from the date of decree and expenses. He also asked me to certify witnesses 4, 5, 6, 7 and 8 on the pursuer's list and acting Chief Inspector Connell and also, he intimated that he would be seeking an additional fee. That matter, of course, will have to be reserved.
[6] Counsel continued there were really only three issues: the first was whether the pursuer sustained a physical injury on the course in March; secondly, was it caused by fault of the course instructor, for whose actions the defender is liable; and lastly, whether the physical injury caused or materially contributed to a psychiatric injury. Counsel continued that the answer was yes, to each of these questions, and as a result the pursuer has lost the sum agreed as damages. He went on to say that an interesting feature of the case was that the defender's proof had clarified the pursuer's case. Mr Hooper, who was the defender's expert, had said that secondary changes in the pursuer's hand months after the course were due to pain and lack of use following injury and that the injury must have happened on the course in the absence of any other explanations. Counsel criticised Sergeant Gurling as not having the knowledge and experience of the risks and necessary procedures in 1996, he also invited me to accept the pursuer as credible and reliable. Continuing, Mr Stewart said that on the balance of probabilities the pursuer sustained his injury on the course and it was more than a minor discomfort. Secondary changes in his right hand were observed, namely swelling, puffiness, cyanosis and reduction in nerve conduction, although that last point was difficult to be certain about. These were well documented by at least four doctors within a few months of the course, three of whom gave evidence. He referred me in some detail to number 7/1 of process at various places and entries relating to Dr Ballantyne, Dr Slowik and Dr Coleman. He said that the changes in his hand had followed the pain experienced on the second day of the course which was 26 March 1996. These matured into swelling and cramps. The pursuer and his wife and Sergeant Bowman all spoke to this. The pursuer also reported the matter on 29 May. It was well documented in the evidence that the secondary changes which took place were related to the symptoms of pain in his hand and wrist and lack of use following on injury. He referred me to Dr Coleman's evidence and also Dr Hooper, No 7/6 of process page 9. Again, under reference to the doctors, counsel maintained that in the absence of an alternative explanation the injury was sustained during the handcuff exercises on the course. He referred to the evidence of the pursuer and his wife and Constable Morgan, all of which he said were consistent with one another and with Dr Coleman. There was in any event no alternative explanation and the condition had failed to resolve. That meant that it had taken on certain psychiatric features. The genuineness of the pursuer was never questioned by any of the doctors and there was no suggestion that he was in any way malingering.
[7] I was invited to take a broad view of the question of fault by the instructors. Counsel accepted he could not prove any particular act but he said the risk of injury (handcuff neuropathy) was well appreciated in 1996 by competent instructors and certain precautions were fundamental. He referred to the manual No 7/8 of process and the evidence of Inspector Connell. It was quite clear that Inspector Connell appreciated the risks and the importance of safety briefings, injury call-overs, visual inspection and something called the "Pat out" rule. Also, the techniques had to be the subject of close supervision. On the balance of probabilities it was said these proper precautions were not implemented. Counsel said that only Gurling was called and the other instructor Ross had not been a witness,. It appeared from Gurling's evidence that he was not alive to the risk of handcuff injury. His evidence about precautions mainly came in cross-examination. He was aware of the "Pat out" rule but did not use it. This meant that his expertise was not up to the standard expected and in any event he was contradicted by the pursuer and Morgan. I was invited to attach no weight to No 7/13 of process, the statement by Officer Jane Frazer. The pursuer's evidence as to what happened on the course and the pain due to twisting and other manoeuvres should be accepted. The evidence was eloquent of the changes in his hand and it was important that he used tape to continue on the course without any intervention by the instructors. These matters should have been noted but they were not. The instructor had to be proactive and could not rely on self-reporting.
[8] Moving to medical questions, counsel said that the physical injury did precipitate, cause and materially contribute to a psychological injury, namely a depressive state of moderate severity which would probably resolve in some three years time, although there was a risk of recurrence. It was not disputed, he said, that the pursuer suffered from a depressive state of moderate severity and that was proved by Drs Doherty, Matson and Götz. He referred me to various passages in their separate reports. It was a fair comment to say that the severity was mild to moderate. Whether the pursuer was pre-disposed to an unusually severe reaction did not matter because the negligent party had to take the victim as he found him. It is clear that the depressive state was caused by the accident and that he would not have become depressed to any degree if there had been no accident. No doubt there were a number of other contributing causes in his make-up but if one was laid at the door of the wrongdoer, the wrongdoer was liable. He referred me to Dr Matson's evidence and Dr Götz's report. Even underlying predisposition due to alcohol, disappointment at work and family bereavement, although contributing, were not relevant. The question was whether the injury made a material contribution and precipitated the condition in a predisposed individual. I should attach little importance, he said, to questions of alcohol intake. There was in any case no proper basis in the defender's pleading on record for any such suggestion and the only suggestions came in the re-examination of Dr Lawrie.
[9] In his reply, Mr Brailsford invited me to repel the pursuer's pleas-in-law and sustain the defender's second and third plea. He began his submissions by devoting some time to criticism of the pursuer and his wife. He did not suggest that they were deliberately misleading or lying but that they exaggerated unconsciously and were unreliable. Beginning with the pursuer, he said that the critical matter was what happened on the course and on the days after. It was important to consider what reports he made to the doctors and what he described. Counsel went through the reports made to the various doctors in various parts of the medical records, particularly number 7/1 and /3 of process. He also looked at number 6/3, /5 and /7 and also at number 7/13. It is not necessary to detail these at this stage because I deal with them elsewhere in this opinion. What Mr Brailsford said was that the accounts were inconsistent, and were inconsistent with the evidence he gave. He referred me to certain passages in the evidence about what happened on the course and indicated that these did not square with any subsequent accounts to the doctors, except possible Dr Götz who he saw after his evidence-in-chief had been given. I was invited to conclude that the pursuer had been inconsistent and in the period closest to the accident made no complaint of course injuries, and even if some of the accounts are correct he has exaggerated others. This meant that his evidence could not be accepted as reliable. The same complaint was made of Mrs Franklin, but for somewhat different reasons. She was criticised for a failure to give a proper date for his operation for polyps. It was clear, counsel said, that she was several years wrong in the date of the operation and its effect on his working record. Secondly, he maintained that her evidence was unreliable in relation to the pursuer's drinking. At least two doctors had said that his consumption was unhealthy and she had sought to minimise this. Thirdly, she was criticised for making certain remarks which Dr Götz attributed to her in his report on the pursuer about what happened on the course. That, said counsel, did not square with her evidence to the Court and she had spoken to Götz after she gave evidence. Moving off the question of reliability defender's counsel then dealt with the evidence. I was invited to hold that the pursuer could not be relied upon and that he had exaggerated the pain he felt. Sergeant Gurling was a good witness said counsel, he had remembered nothing unusual and had been properly trained. It had to be remembered that this course was at the beginning of rigid handcuff training, no doubt the state of knowledge has moved on but at the time proper warnings were given as to what was to be expected. Counsel accepted that the Sergeant did know about the "Pat out" rule but that did not help the pursuer. There was no substitute for a verbal warning. Gurling and Ross did supervise. Gurling had remembered a complaint by someone and his supervision was supported by what Jane Frazer said in her statement. That statement was properly before the Court through Dr Götz's evidence.
[10] Dealing with injuries , counsel said that he accepted the pursuer would have bound to have red marks due to wields but these would disappear after a few days. The injury that the pursuer later described was dramatic. Why then did he take six weeks before he went to a doctor and complained then about injury to his finger only. That behaviour was inconsistent with his evidence about his hand. There was no organic basis found for the swelling and blueness in the hand, accordingly this was not properly proved. As to the depressive condition, it was unclear when this first emerged. Unfortunately he was not referred until late 1997. In this case there were another number of precipitating factors which could be the cause of the mild to moderate depressive condition. There had been a family death in 1995, his career had not progressed and he had been denied promotion. He did not like being in Buckie, he had been absent due to sinusitis and he was drinking to excess. Many of the factors in his depressive illness had been there in 1995 although he had not been seen by a psychiatrist at that time. The most likely factor contributing to the depression was alcohol which since 1995 he continued to consume at an unhealthy level. Finally, Mr Brailsford referred me to Briscoe v Secretary of State for Scotland 1997 S.C. 14 at 16 and 18 on the question of training. He concluded his submission by agreeing that any certification would have to be reserved.
[11] The only issue on credibility arose about the evidence of the pursuer and his wife. It was not said by the defender that either was untruthful but it was suggested that due to exaggeration they were unreliable witnesses. I propose to deal first with this before moving to the detail of the evidence on the merits.
[12] As far as the pursuer was concerned it was said that he delayed to complain of injury in the days and weeks after the course; and his subsequent complaints were not all consistent with each other. Nor were they consistent with what he said had happened on the course.
[13] The defender's counsel devoted some time to a detailed examination of Productions 6 and 7 in various entries. I now turn to look at these. It was argued that his only complaint to Dr Morrison on 28 August 1996 was of ring finger pain. This is found in 7/1 sheet 75. However, what this letter says is that the complaint was made in May and that the recent complaint was of his whole right hand being swollen with pain cramps and lack of grip. There is no suggestion in the letter that the pain is other than genuine; and the doctor found swelling over the dorsum. Sheet 72 was referred to (Mr Slowik) and it is a contemporaneous report. The complaint again is of pain and swelling in the right hand. The report is inconclusive but does find swelling in the fingers. Sheet 70 is Dr Coleman's report in September 1996. Again the complaint is of pain, cramps, swelling and discoloration. The doctor did find definite swelling and cyanosis.
[14] Thus far I consider that the pursuer's complaints are consistent and, as the letters show, he attributed the problem to what happened on the training course. Dr Dick's report (7/3 page 4 in October 1997) deals with depression, but does repeat the pursuer's complaints which are consistent with what has already been noted. Nor is there anything inconsistent with all of this in Dr Matson's report (7/1 page 11, October 1998) which is of depression supervening after the hand injury. No.6/5 of process is a referral in February 2000 by Dr Morrison the G.P. to the Consultant Psychiatrist Dr Doherty at Dr Gray's Hospital in Elgin. The relevant entry is on page 17. At the time this was written it is clear that the pursuer was undergoing a worsening agitated depression. The referring doctor writes that following the course he developed a problem with his hand and wrist. It was now regressing. In my view it is a fair interpretation of this letter that his absence from work and subsequent depression was due to the hand and wrist problem. It is important to remember that the G.P. had seen him since the outset.
[15] No.6/3 is a medical report dated April 2000 from Dr Coleman in Aberdeen. Again this doctor had seen the pursuer as long ago as September 1996. The history given of the injury is one of wrist twisting bruising, weals and pain developing in the right hand. The clinical findings at the time were of swelling and discolouration. The doctor suspected post traumatic reflex sympathetic dystrophy. In April 2000 he was still having pain and the doctor finds that his depression was linked to these injuries. There is no suggestion that he was other then genuine. Once more the evidence given by the pursuer as to what happened on the course and his medical condition thereafter is quite consistent with these documents.
[16] Dr Götz's report in November 2000 was for the purposes of a Pensions-Medical Appeal. It was after the proof started. The document is 6/7 and the doctor is a consultant psychiatrist. It was said that the account which the pursuer gave him of the course (p.3) was not consistent. I do not agree. Part of the account refers to Mrs Franklin and only one descriptive phrase to the pursuer viz "... horrendously painful...".
[17] The final matter on credibility was directed to a large number of papers sent to Dr Götz. I was referred to pages 21 and 22 of 7/13 of process. These particular pages are internal memos and both are hearsay. Superintendent Cree and Inspector Paterson were not witnesses. I discount these as of any relevance. Page 26 of the same production is a typed statement by the pursuer. What was said of this is that it contains no complaint of injury on the course. I do not agree. The second paragraph clearly suggests that his hand pain, discolouration and discomfort were in some way related to the course. I think that a fair reading of page 27 shows that in September 1996 the pursuer did attribute his pain and condition to the training on the course. There is certainly no suggestion that anything else was the cause.
[18] Accordingly on credibility and reliability I conclude that the pursuer's accounts are not inconsistent, nor are they exaggerated. It may be true that he did not complain as speedily as others more timid might have done but I do not criticise that.
[19] The criticism of Mrs Franklin falls into much narrower fields.
[20] It is said that she erred in her evidence about the date of her husband's operation for polyps and suggested that it caused his absence from work in 1995/6. It was said, and correctly, that sheets 23 and 40 of No.7/1 of process show that the operation of polypectomy was in September 1993.
[21] I reject this criticism. An examination of sheet 20 shows at least three entries between 5 January and 9 February 1996 where certifiable absences from work due to sinusitis occurred. I do not know whether the polypectomy in 1993 was successful but it is quite clear that he was off work due to his nasal condition in 1996. Mrs Fanklin, while mistaken as to a date of an operation is not wrong in the essential details of early 1996.
[22] The two other criticisms of her can be quickly dealt with. It is said she was unreliable on her husband's drinking. I do not agree. The whole tenor of her evidence demonstrated some concern about his drinking. There was some detailed medical evidence about the interpretation of sheet 37 (1995) of No.7/1 relating to a raised entry for Gama Glutanyl Transference and on the same sheet an excessive entry for Mean Corpuscular Volume. There was some conflict on this point between Dr Götz and Dr Lawrie. I am not persuaded that either doctor has special expertise on the clear meaning, if any, of these blood tests. In any case it does not reflect adversely on Mrs Franklin whose evidence on drinking relates to 1997 and later.
[23] I also reject the criticism of her because of what she is alleged to have said to Dr Götz concerning the training course. In the first place what the doctor said she said and recorded in his report (No.6/7 page 3) is of course hearsay. None of it was put to Mrs Franklin and for that simple reason I could not hold her evidence given in court to be unreliable. In any event her evidence to the court was only about how the course affected her husband; not anyone else.
[24] I now move to consider what I hold proved about what actually happened on the course. The evidence about this depends upon the pursuer, PC Morgan and Sergeant Joe Gurling. Some matters were agreed or not seriously disputed and I consider these first. I hold it proved that the course lasted for a week and began with a "talking" session on Monday 25 March 1996. That concerned the course and the training to come with the new handcuffs and baton. On the Tuesday and Wednesday handcuff training took place; thereafter baton training and a mixture of both until the Friday. For handcuff training the instructors were Gurling and Steven Ross (not a witness). There were 10 trainees and they paired off. The pairings were switched from time to time. The training involved "rôle playing" which meant that each in turn had to play the part of a criminal resisting arrest and then the arresting officer. Several techniques had to be practised involving the handcuff being put on quickly or "slapped on" causing the ratchet to tighten quickly and hold the wrist of the prisoner. The ratchet will close and secure automatically. The wrist of the prisoner was then rotated in different directions as compliance or resistance dictated.
[25] I also hold it proved, as not seriously disputed, that at time the "prisoner" was pulled to the ground; dragged along the ground; had his arm levered and also had it rotated behind his back like a propeller. These techniques were practised 20 to 30 times a day during the two days of the training.
[26] I also hold it proved that the handcuff is, in a sense, a weapon designed to cause pain and then compliance in a prisoner who is unwilling to "go quietly". A cursory look at the Manual No.7/8 of process makes that clear.
[27] The area where there was a dispute was to what extent pain was caused on these days, what precautions were observed and, to some extent, what account was taken of the Training Manual. Where the evidence differed on these matters I preferred the evidence of the pursuer and Morgan to that of Gurling. In the first place I held that Morgan corroborated the pursuer on these matters and thus the weight of evidence which I hold as consistent favours the pursuer. Secondly, the other trainer Ross was not called, so I do not have a complete picture. Thirdly, I found Gurling to be a hesitant and tentative witness who tended to remember what "would have" happened on the course, rather than what actually did. Much of his memory on precautions was only seen in cross-examination. This may not be his fault because I am sure he must have had to do many courses. At the time of this course he himself had only had two weeks training. However, on balance I hold it established that the techniques used on the pursuer when he was the prisoner caused him extreme pain in both his wrists resulting in red weals and bruises. I hold that this probably occurred on the Tuesday because the pursuer said he prepared himself for the "next day" by using his own Micropore tape.
[28] The pursuer said there was no protection provided for the wrists, everybody had sore wrists and no safety checks were made on anybody's hands or wrists. He said that one of the instructors saw him putting on the Micropore and lending it to others. He described "guys on the floor screaming" and there being no clear rule how to tell your partner to stop inflicting pain.
[29] I pause to observe that this exercise was conducted with police officers who do have what was described as a "macho" image. The dictionary defines this slang word as connoting virility, courage and aggression. I thus consider it unlikely that anyone would want to be seen to complain in case they were accused of being feeble or timid.
[30] Morgan confirmed that the handcuffs were applied dozens of times and he felt pain in both his wrists which he described as agony. He said there was no system for stopping other than to say the exclamation "ouch". He did remember the trainer calling on people to stop. Like the pursuer he said there was no protection available and he remembered seeing the pursuer's Micropore tape lying on the floor beside the spare batons. He himself used tape on his finger. He said no injury reports were made and no verbal or visual checks were made on hands or wrists. Morgan further told how the handcuff when twisted would hurt you whether slack or tight and when rotated would cut into the edge of the wrist. The rôle play, he said, was physical and realistic. He "hated" the course, and remembered people screaming.
[31] Sergeant Gurling began his evidence by describing very generally how courses operated and precisely what techniques had to be learned. He said that in general tubigrip was available in a First Aid tin and that the handcuff practice would cause an element of discomfort. He then said that "....if pain was felt they could mention that...".
[32] When he came to deal with the particular course his memory was vague. He had no recollection of anything out of the ordinary or any complaints or of anyone screaming. On this last point the pursuer and Morgan contradict him. In cross-examination he qualified his evidence about tubigrip by saying it was available on all the courses. He did say that he was aware that some people used their own tape and if he saw this he would ask why. On this course he says he saw none in spite of the pursuer and Morgan using tape. Why he did not see them using it I do not know. It may be that Ross did.
[33] I found his description of the safety briefing to be unsatisfactory. It was mentioned only in cross and turns out that it happened in the classroom not the gym. I do not accept that any injury "call over" was done at the start and end of each day and on this point I prefer Morgan and the pursuer. He did agree with the pursuer and Morgan that there was no specific signal to stop force. He did not use the "Pat out" rule.
[34] From all of this I find it proved that extreme pain was caused frequently and often to the trainees, including the pursuer, and there was no properly defined signal taught them to stop it. I also hold that the trainers would only react if a complaint was made and had no system for inspecting wrists. Nor do I accept that any protection tape was made available.
[35] I now deal briefly with the Training Manual although where the actual trainees are concerned this assumes little importance. Gurling said that the booklet No.7/7 was issued to the students. The matter was left there. The pursuer said he had never seen it. Morgan was asked about it but only to look at photographs. On this evidence there is no proper proof that it was ever issued to the trainees. Gurling was unfamiliar with the booklet 7/8 which the pursuer never saw (a document of some 67 pages).
[36] As support for the pursuer I attach importance to his witness Chief Inspector Connell whose evidence I wholly accept. He had wide experience of handcuff training in the USA and Strathclyde. He was aware of the risk of handcuff neuropathy, and how rotation and twisting would cause pain to nerves (No.7/8 makes all of this clear, and further, that trauma to the wrist makes the pain go elsewhere in the hand). He spoke to the importance of injury checks before each session and several verbal checks daily. He said there was a "Pat out" rule i.e. to pat or touch the arresting officer to make them desist) or to shout a coded word "RED" (meaning stop). None of this seems to have happened on the pursuer's course. Most importantly he had been training Scottish police officers since October 1994 and number 7/8 (the Strathclyde Police Manual) had been available since 1995 when the Strathclyde trainees instructed the Grampian police. I conclude that by 1996 the risks and proper safety procedures were well known and established.
[37] There was one other piece of evidence about what happened on the course. That was evidence from WPC Jane Frazer. Her evidence was not given on oath but is in a document which forms three pages (18/20) of No.7/13 of process (documents lodged on the 6th day of the Proof by the defenders). The defenders sought to rely on it and the pursuer objected at the time and renewed the objection at the hearing.
[38] The document is dated 9 July 1999. Clearly it cannot be cross-examined as the witness did not appear and a (somewhat vague) soul and conscience certificate was given to the court in respect of her (dated 8/2/01 from Dr Monika Watt). It is also obvious from the document that it is the work of a Claims Inspector, M D'Arcy as it purports to be signed by him and begins "Constable Jane... Fraser.... Advised as follows.....". I consider that this document akin to a precognition and is obvious hearsay. For these reasons it cannot be admitted in evidence. I accordingly sustain now the objection made and renewed.
[39] What then is the evidence about what injury the pursuer suffered on the course and its progress. Apart from the medical witnesses this chapter depends on the pursuer and his wife.
[40] Both the pursuer and Mrs Franklin described how the pain, cramps, swelling and discoloration began on and after the course. The pursuer described the effect on his right hand; the problems with his work, writing, gardening and other things. His depression made him restless, nervous, unwilling to meet people, unable to sleep, read, concentrate and brought about an over dependence on alcohol. In general and in particular his wife corroborated him.
[41] These changes in his right hand I find to be well and convincingly documented within a few months of the course. Twice in July 1996 Dr Morrison recorded them (No.7.1 Sheet 21). These symptoms were seen in August 1996 by Dr Valentine at the Albyn Hospital and not found to be other than genuine. The contemporary views of Drs Slowik and Coleman in September 1996 also are to the same effect.
[42] It is quite clear that these changes followed the pain experienced at handcuff training on the course in March. No other cause has ever been suggested. It is also quite clear that these changes have failed to resolve in spite of no clear organic cause being found for that. The genuineness of this has never been disputed and, on the evidence of later psychiatric witnesses, indicates to me that psychiatric features have supervened to delay recovery. I will return to that. Inspector Bowman remembered the pursuer making complaints to him about his hand on dates following the course.
[43] Even Mr Hooper, a very eminent hand surgeon did not dispute that very florid symptoms with extreme pain could result from a compressive injury. He would have expected a much earlier resolution and recovery but could not exclude psychogenic factors.
[44] I accordingly find it proved that the pursuer did sustain physical injury to his hand on the course and that it was much more than minor discomfort.
[45] Given that I have found that the pursuer did sustain injuries to his wrist and hand as a result of the training the final question is whether that injury caused or materially contributed to the depressive state from which the pursuer now suffers. If that question is answered in the affirmative there is a further question of how long it will take the depression to resolve. In respect of these questions I prefer the evidence of the medical men who saw and treated the pursuer at the time to those who saw him years later and for the purposes of the proof.
[46] It was not disputed between counsel that at the date of the proof the pursuer was suffering from a depressive state. Dr Doherty the consultant psychiatrist at Dr Gray's Hospital in Elgin, said he suffered from a moderate degree of depression. The doctor had seen him regularly since February 2000. Dr Matson, a consultant psychiatrist at Dykebar Hospital said he was depressed and anxious and classified it as of moderate severity. He said that the depression could be multi functional and I will return to that. Dr Götz described the depression as "moderate" and the defenders' psychologist Dr Lawrie as mild to moderate. Both these latter witnesses saw the pursuer late on. In my view the weight of this evidence from those best qualified to give it (Doherty and Matson) favours a moderate depression and I so hold.
[47] Now it is perfectly true, and was accepted by both sides, that there were a number of factors about the pursuer's life and lifestyle which could be relevant to the depressive illness. All the doctors were aware of this and took account of it in their reports (where provided) or in their evidence. The factors were or included, his drinking, family bereavement, career dissatisfactions and a dislike of a posting. There are two things which can be said about this. Firstly, in the Record (p.17) the defenders attribute the depression to career frustrations, the posting to Buckie and alcohol. Secondly the defenders have not proved that the depression was caused by any of these.
[48] Dr Lawrie only saw the pursuer in June 2000. Most of his evidence concerned alcohol intake. He could do no more than say that before the training course the pursuer might have been depressed and that alcohol would now precipitate it. The posting to Buckie and the family death would not have helped. In cross-examination he qualified his position to say that these factors could result in a predisposition in the pursuer to a "trigger event" such as the handcuff training. In re-examination his final position seemed to be that there might have existed an anxiety state in 1995. This was the only evidence the defenders led from anyone qualified to give an opinion. (Mr Hooper was not a psychiatrist or a psychologist). In my view this evidence does not convince me that the pursuer was other than someone predisposed to an unusually severe reaction to a "trigger event".
[49] Dr Morrison said the depression was due to the pain of the hand injury and Dr Matson's final position was that the factors other than the pain made him more vulnerable to being precipitated into a depression.
[50] In that state of evidence if the pursuer is unusually predisposed, as I find him to be, the alleged wrongdoer must take the victim as he find him. Was the depression then caused by or materially contributed to by the training?
[51] On balance I find and hold that it was. It is, in the first place, a fair inference from the evidence of the pursuer and his wife that his hand injury made him depressed. Dr Matson said that but for the injury he would still be employed by the police. Dr Götz who heard representations from both sides and had access to material deemed relevant by both sides agreed that the injury caused the depression (No.6/7 p.5). I have already dealt with and discounted Dr Lawrie. Dr Doherty gave no opinion on this point.
[52] There is no other competing course for the depression and I do not hold it in any way established that the depression now existing would have arisen from any other cause.
[53] How long will the depression last? The only clear evidence about this was from Dr Matson who gave as a period up to three years. There is a joint minute agreeing damages against two possible findings, one for major injuries and one for minor. I have found that the pursuer has suffered the former.
[54] Given my findings in fact as to what is proved about the course, and the injuries the pursuer sustained and their subsequent progress the question next for consideration is whether fault is proved.
[55] I have already had notice in this opinion of the case of fault and the bland denial.
[56] It is clear that no one single act done to the pursuer while acting the rôle of prisoner can be shown to have caused the initial injury leading to the subsequent serious consequences. I have to adopt a broad approach to fault. The risk of injury (handcuff neuropathy) was or ought to have been well appreciated in 1996 by competent instructors. The disciplines in No.7/8 of process (page 5) make that clear. A proper safety briefing requires action on anything other than minor discomfort and on tape being seen on wrists; there should be a proper injury call over and a "pat out" rule. Close supervision of the techniques is a reasonable precaution.
[57] On the balance of probabilities, I hold that the proper precautions were not implemented.
[58] I did not have a full picture of what supervision there was on the course as Ross was not called. On the evidence Gurling was not alive to the risk of handcuff neuropathy and it is my impression that at the time he himself had only been lightly trained. This must have affected his evaluation of what precautions were necessary; and I find that his level of expertise was below the standard which trainees were entitled to expect. That may not have been his personal fault but it is something for which his employer is answerable.
[59] I attach particular importance to the fact that he did know about the "PAT OUT" rule but did not use it. I also criticise his failure to observe the tape used by the pursuer and to such an explanation. I am also satisfied that there was no regular call over for injuries or visual inspection. Briscoe was referred to. The facts of that case were very different, and the case turned on whether the risk of serious injury was too remote. Here the risk of serious injury is well known and obvious. An examination of No.7/8 of process p.5 makes that clear. Also the precautions to prevent it are neither difficult or expensive. In all these circumstances I hold it established that the defenders were in breach of the duties in Article 3 and that their failures caused the pursuer's injuries. I therefore sustain plea-in-law No.1 for the pursuer and repel pleas-in-law Nos.2 and 3 for the defender.
[60] There is no reason to take a period of less than three years to award damages and I accordingly award the agreed sum of £108,137.00 with interest at 8% per annum from the date of decree. I was also asked to certify a number of witnesses and before doing so I will appoint parties to be heard further thereon.