Scottish Court of Session Decisions

Wardlaw v. Fife Health Board [2002] ScotCS 47 (19th February, 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Marnoch Lord Drummond Young Lord Caplan	X154/00 OPINION OF THE COURT delivered by LORD MARNOCH in RECLAIMING MOTION in the cause AGNES BROWN CUNNINGHAM WARDLAW Pursuer and Reclaimer; against FIFE HEALTH BOARD Defenders and Respondents: _______

 

 

Act: Batchelor, Q.C., Comiskie; Anderson Strathern, W.S. (Pursuer and Reclaimer)

Alt: Cullen, Q.C., Joughin; R.F. Macdonald (Defenders and Respondents)

19 February 2002

1. In this action the pursuer sues for damages in respect of injuries received when working in the course of her employment with the defenders as an enrolled district nurse on 8 February 1993. On that date the pursuer's neck got a "real bad jarring" and liability is admitted by the defenders in respect of that injury.
2. It is unnecessary to rehearse the lengthy and complicated medical history between then and the concluding date of the proof (24 February 2000) because, in the event, the Lord Ordinary found, as an unchallenged fact, that the injury in question developed into a chronic pain syndrome which, it was accepted by both parties, would have debarred the pursuer from any further employment as from at least the date of the proof, if not earlier. However, in a careful and closely reasoned judgment the Lord Ordinary restricted his award of damages to solatium and "services" (the combined total coming to £11,500 inclusive of interest), holding that any award for either past or future loss of earnings was precluded by the development, quite spontaneously, of a supervening condition of "frozen shoulder" ( or adhesive capsulitis) which was the immediate cause of the pursuer's stopping work in the Autumn of 1994 and which would have led independently to her retirement on medical grounds in 1996; and which, the Lord Ordinary held, would have persisted indefinitely. All that said, we pause to observe that the Lord Ordinary was not assisted in this case by a continuation of the proof from June 1999 until 24 February 2000 and what seems to have been a certain lack of clarity in the submissions made to him on the final day of the proof.
3. The pursuer has reclaimed to this court on the matter of the Lord Ordinary's refusal to award any damages for loss of earnings. While, however, a number of grounds of appeal were tabled, in the end the only contention advanced by Mr. Batchelor, Q.C., for the pursuer and reclaimer, was that the Lord Ordinary had fallen into error in holding that the supervening condition of "frozen shoulder" was one which would persist indefinitely. He did, however, accept that that condition had persisted to the conclusion of the proof and that, in applying the ratio of Jobling v. Associated Dairies Limited 1982 AC 794, the Lord Ordinary had been right to withhold any award for wage loss up to that date. It will thus be apparent that the main outstanding issue between the parties is now restricted to the question of whether the Lord Ordinary was correct in holding that the supervening condition of "frozen shoulder" was, indeed, one which would have persisted indefinitely so as to also exclude any award for future loss. On this one matter, unfortunately, it seems to us - no doubt with the benefit of the full Notes of Evidence - that the Lord Ordinary did, in fact, reach an erroneous view.
4. The principal and, indeed, in our view, the only source of evidence on this matter was the evidence of an orthopaedic surgeon, Mr. I.G. Kelly. In dealing with primary frozen shoulders, namely those which develop spontaneously, one passage in Mr. Kelly's evidence (at pps. 535-6 of the Notes) reads as follows:-

"But two years isn't an unusual time for them to take to resolve? - The typical time is given as two years. I think the standard text will say complete resolution within two years in perhaps 90%; I think as we go into it in even more detail we realise that although patients will say that they are better and can go back to their work, some restriction of motion will persist almost indefinitely. But the major functionally significant restriction in perhaps 90% of patients will resolve within a two year period."

5. In the Lord Ordinary's Opinion this passage is summarised as follows:-

"Although equally he (Mr. Kelly) 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'."

6. As was pointed out by counsel for the defenders, the strict grammar of the Lord Ordinary's summary would suggest that he correctly summarised the evidence in question as being to the effect that only some fairly minor problems of a frozen shoulder would "persist almost indefinitely". However, it is, we think, possible that the Lord Ordinary's true meaning is that there was, as it were, a category of primary frozen shoulder which would "persist almost indefinitely" and, if so, this clearly involves a misapprehension of the evidence given by Mr. Kelly. It has to be said that the latter reading does appear to fit in with a later passage in the Lord Ordinary's opinion which reads:-

"It would appear that the pursuer's adhesive capsulitis is one of those which will persist indefinitely."

7. At all events, the real or substantial question is whether there was evidence from Mr. Kelly which entitled the Lord Ordinary to reach the conclusion to which we have just referred and the further conclusion that, as a result, there could be no award for future loss.
8. In our opinion, having, with the assistance of counsel, read and re-read Mr. Kelly's evidence, it is simply not capable of yielding that interpretation. The passage to which we have already referred does, of course, leave open the possibility that 10% of patients will not recover within two years. However, there is a later passage (at p. 550 of the Notes) in which Mr. Kelly, echoing the terms of a written report introduced into evidence, states that, while the condition in question normally resolves within two years it "can last up to six to eight years". In short, the plain inference, it seems to us, is that the remaining 10% will resolve within the outside period of six to eight years. There are, indeed, many other passages in Mr. Kelly's evidence in which he refers to the condition as being "self-limiting" and in one such passage (at p. 619 of the Notes) he goes on to say that it "therefore would not be expected to lead on to permanent incapacity." What is more, there are other passages in his evidence in which Mr. Kelly makes clear that the condition can, if necessary, be given treatment, the particular treatment which he favours being manipulation of the shoulder joint under a general anaesthetic. That, according to Mr. Kelly, had a "high success rate" and, at a later stage in his evidence (p. 645 of the Notes), he refers to the same procedure as having a "greater than 90% effectiveness".
9. As against the above counsel for the defenders relied on only one passage in Mr. Kelly's evidence which appears at p. 544 of the Notes of Evidence. This passage may also have been in the mind of the Lord Ordinary where he says in his Opinion that, although Mr. Kelly was hopeful of some improvement in the shoulder in 1997, he "was much more pessimistic if (as had happened) it had continued to be problematic since." The passage in question immediately follows evidence from Mr. Kelly that, as at 1997, he took the view that, following treatment of the shoulder, the pursuer would be able to resume some form of employment, albeit not as a nurse. It is in the following terms:

"Q. So you would still have some hope of being able to improve this, Mrs. Wardlaw's condition? -

A. Ehm, at that time I certainly would have done. If the same findings applied two years on, I might be painting a less optimistic picture."

10. The time to which Mr. Kelly was referring in that answer was clearly the time of his examination of Mrs. Wardlaw which was, indeed, in 1997. And the reference to "two years on" is clearly a reference to the time of the proof which was, so far as he was concerned, taking place in 1999. However, it is clear to us from its context that in this whole passage of evidence Mr. Kelly is referring to Mrs. Wardlaw's overall condition which, even as at 1997, had involved complaints of pain in the neck radiating all the way down the left arm with pins and needles in the fingers. Mr. Kelly goes out of his way to express the view that these were symptoms of nerve root irritation for which he, Mr. Kelly, had no explanation but, despite this, counsel for the defenders invited us to read Mr. Kelly's prognosis as if it was a prognosis for a "frozen shoulder" uncomplicated by either neck pain or the other symptoms to which we have referred. This was a necessary invitation on the part of counsel for the defenders because, of course, the Lord Ordinary ultimately held that the neck and associated problems were causally linked to the accident with the result that the supervening effects of the spontaneously developing "frozen shoulder" had to be assessed quite independently.
11. In our opinion, however, the submissions of counsel for the defenders on this matter are wholly without foundation, if not positively misleading. Even if Mr. Kelly thought that all the pursuer's problems were somehow secondary to the "frozen shoulder", it is clear beyond peradventure that he was expressing a prognosis in relation, not to a "frozen shoulder" per se, but to a frozen shoulder associated with all the complications referred to above. What is more, counsel for the defenders omitted to notice the penultimate paragraph of Mr. Kelly's 1997 written report which was incorporated into the evidence at p. 543 of the Notes of Evidence and which was in the following terms:

"At the present time Mrs Wardlaw certainly has a significant problem in her left shoulder. I feel that this is almost certainly treatable. In the ordinary course of events I would probably proceed to examination and probable manipulation under anaesthetic but in view of the complexity of this situation I would suggest the shoulder was further investigated by the use of an arthrogram (not MRI) and the further treatment of the presumed adhesive capsulitis could then be carried out. This carries a high chance of success in terms of restoring motion and reducing the shoulder pain. It is really not possible to predict its effect upon the neck pain."

In our opinion it is clear from that passage, as it is from all the other passages to which we have referred, that Mr. Kelly was, in fact, highly optimistic regarding the outcome for the shoulder, as such. Indeed, even when faced up with the possible diagnosis of a chronic pain syndrome emanating from the neck, Mr. Kelly continued to talk of "management of the stiff shoulder" albeit, because of the pain syndrome, such management would be highly unlikely to "produce full recovery" - p. 564 of the Notes.

12. In the result, we are driven inexorably to the conclusion that there was really no evidence - at least from Mr. Kelly - which could support the Lord Ordinary's finding that the pursuer's adhesive capsulitis, taken in isolation, was "one of those which will persist indefinitely." Indeed, all Mr. Kelly's evidence is, we think, to quite the opposite effect.
13. The only other piece of evidence referred to by the Lord Ordinary in this connection was a letter to the pursuer's General Practitioner from a Dr. McIntyre of the Occupational Health and Safety Advisory Service dated 3 November 1995. This letter was agreed to be one of the medical records relating to the pursuer and was referred to, in passing, by both Mr. Kelly and the pursuer's General Practitioner in the course of their evidence. However, neither of those witnesses adopted as accurate the opinion expressed in the last paragraph of the letter which reads as follows:-

"So far as work is concerned a return looks extremely unlikely in the foreseeable future although a frozen shoulder is not something that I have ever associated with permanent incapacity it certainly can drag on for a long time...(sic)"

The author of the letter, Dr. McIntyre, was not, himself called to give evidence, and in that situation, under reference to Rule of Court 36.8 of the Rules of Court 1994 (which were the Rules applicable at the date of the proof), Mr. Batchelor submitted that the letter could not be accorded any evidential value, even as hearsay. In reply, counsel for the defenders accepted that the requirements of the then Rule of Court 36.8 had not been complied with but submitted that that Rule had no application where, as here, the letter had been "spoken to" by a witness.

14. In our opinion counsel for the pursuer was well-founded in his submission on this matter. While the Rule has changed, and it is now sufficient simply to lodge any written statement in process, we are quite satisfied that the detailed requirements of the earlier Rule applied to any such statement of which the substantive content was not to be spoken to by a witness or witnesses. In any event, even if we are wrong about this, we are quite satisfied that very little, if any, weight can properly be attached to the paragraph in question. At best, it is ambiguous and it would, we think, be quite wrong to take out of it any meaning which conflicted with the testimony of Mr. Kelly. Indeed, the Lord Ordinary, himself, only refers to this letter in passing and on the view that it was in harmony with such evidence.
15. Having reached the view, however reluctantly, that the Lord Ordinary was in error in thinking that the pursuer's supervening condition would persist indefinitely, we have no alternative but to decide, for ourselves, the finite period which can, on the evidence, properly be prayed in aid and relied on by the defenders. We put the matter in that way since we are clear that the onus is here essentially on the defenders to set up what is, in effect, a substantive defence to a claim for loss of earnings already made out prima facie by the pursuer. In this connection, it is clear from the Lord Ordinary's Opinion that at the conclusion of the proof the pursuer still suffered from a "marked restriction of shoulder movement" albeit, the Lord Ordinary tells us, that was then the "main symptom of the frozen shoulder." The latter finding is of some importance because there was evidence from Mr. Kelly that a diminution in pain was, or certainly could be, a sign that the shoulder was in its healing phase. This would fit in with the evidence of a consultant neurosurgeon, Mr. Gentleman, who examined the pursuer in March 1996 and March 1999 and whose findings on examination suggest that the shoulder may have improved somewhat in the interim. Certainly by May 1999, when she saw a Consultant in Pain Management, Mr. Rogers, the pursuer was making no complaint whatsoever of pain which could be associated with the shoulder. There is also, not least, the consideration that, if the frozen shoulder had stood alone, and if the pursuer's overall condition had not been complicated by the chronic pain syndrome resulting from the neck injury, the pursuer might well have received the remedial manipulative treatment described by Mr. Kelly. Indeed, at the time of the proof, such treatment was still available to her, even in the presence of that syndrome. As against all that, when the proof concluded in February 2000 the "six to eight year period" referred to above still had between four months and two years, four months to run - there having been evidence to the effect that the pursuer first became aware of the symptoms of a frozen shoulder in July 1994. Putting all these considerations together we think it not unreasonable to assess the period in question - that is the period covered by the supervening incapacity - as being a period which should be taken as having ended by about a year after the proof, namely by the beginning of March 2001. The pursuer would then have been 53 years of age. On that factual basis we now turn to consider what additional award of damages, if any, should be made to the pursuer. An additional award was claimed under two heads, (a) future loss of earnings and (b) loss of pension rights. We deal with each in turn.
16. As regards future loss of earnings the parties agreed by Joint Minute that in assessing future loss from the date of the proof an appropriate multiplier would be 5.1 and that the appropriate multiplicand (being the estimated annual net earnings of a district nurse as at that date) was £13,000. However, it has to be accepted that this agreement was reached in the context of a claim by the pursuer which envisaged no break of employment due to an unrelated supervening medical condition. By way of contrast, in the situation in which this court now finds itself, counsel for the defenders submitted that it would be entirely speculative to make any award to the pursuer under this head in that there was no evidence to the effect either that, having taken medical retirement in 1996, the pursuer would have wished to take up employment again in 2001 or that, even if she did, employment as a district nurse would then have been available to her. In our opinion, however, where, as here, the pursuer had worked as a district nurse for almost 20 years, and where her stated intention at the proof was to work until retirement at the age of 60 years, it is entirely reasonable to hold that on a balance of probabilities she would have wished to regain employment as a district nurse and would have succeeded in doing that, perhaps not immediately, but at least within a relatively short time of her hypothetical recovery in the Spring of 2001. In all the circumstances, therefore, our decision is to apply to the multiplicand of £13,000 a discounted multiplier of 3.5 bringing out an award under this head of £45,500.
17. As regards loss of pension rights, it was again agreed between parties that on the basis of a permanent termination of the pursuer's employment as at June 1996 the relevant figure would be £25,000. On the hypothetical basis which we now have to consider the relevant date is, of course, no longer June 1996 but some time after the spring of 2001 when, but for the chronic pain syndrome attributable to the accident, the pursuer would hypothetically have regained employment. Counsel for the defenders submitted that this head of claim was even more speculative than the claim for future loss of earnings and we do see the force of that submission. In particular, we agree that it would be wholly speculative to take any proportion of the agreed figure of £25,000 referred to above. On the other hand, standing our decision anent loss of earnings, there clearly would be some associated loss of pension rights, albeit not a loss which could ever be the subject of precise calculation. In that situation, and erring, we think, on the safe side, we have decided to make a lump sum award under this head of £5,000.
18. In the overall result we shall recall the Lord Ordinary's interlocutor of 4 April 2000, of new sustain the first plea-in-law for the pursuer and grant decree against the defenders for payment to the pursuer of the increased sum of £62,000 in full of the conclusions of the summons. 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. Finally, there was no dispute but that the award which we have made should carry interest at 8% per annum as from 4 April 2000.