Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Black v. Harper [2003] ScotCS 183 (01 July 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/183.html
Cite as: [2003] ScotCS 183

[New search] [Help]

Black v. Harper [2003] ScotCS 183 (01 July 2003)

OUTER HOUSE, COURT OF SESSION

A569/02

OPINION

LORD MACKAY OF DRUMADOON

in the cause

MRS CATHERINE REID BLACK or ROSS

Pursuer;

against

MRS PAT HARPER

Defender.

Pursuer: Allardice, Digby Brown, S.S.C.

Defender: Stirling, Harper Macleod

1 July 2003

Introduction
[1] The pursuer in this action was born on 4 February 1935. On 6 March 1999, at around three o'clock in the afternoon, she was walking along Ferry Road, Edinburgh. She was walking with her 6-year-old grandson, Lewis Nodzac. As they walked across Warriston Road, at its junction with Ferry Road, the pursuer was struck on her right side by a car. That car was being driven out of Warriston Road by the defender. The pursuer was knocked over and sustained injury. In this action of damages, the defender has admitted liability to make reparation to the pursuer for the loss, injury and damage that the pursuer sustained in that accident.

Evidence led at proof

[2] During the proof, I heard evidence from two witnesses, the pursuer, who is now aged 68, and her daughter, Mrs Carol Nodzac. After these two witnesses had given evidence, I was informed by counsel that they were agreed that two medical reports prepared by Professor C M Court-Brown, a consultant orthopaedic surgeon instructed on behalf of the pursuer, should "constitute the medical evidence in the case" (Nos. 6/2 and 6/3 of Process). Thereafter the pursuer closed her case. The defender led no evidence. No joint minute was lodged. During their submissions, neither counsel suggested that it would be appropriate for me to have any regard to the contents of the medical records relating to the pursuer, which had been lodged as productions.

Pre-accident condition of the pursuer
[3] It is quite clear from the evidence I heard that the pursuer had led an active life, prior to her accident on 6 March 1999. During her fifties, she retired from her employment, as a clerical officer in the National Health Service. She retired early, on account of some problems with her eyesight. The pursuer has been widowed for 17 years. Since her husband's death, the pursuer has lived alone, in the Leith area of Edinburgh. In her evidence, the pursuer described her daily and weekly routine prior to the accident. She looked after herself and was able to do all her own shopping, cooking and housework. She kept dogs, a King Charles spaniel and two retired greyhounds. She walked those dogs regularly in the neighbourhood of her house and in the local parks. Another interest she had was visiting the elderly. In her evidence she talked about a number of people whom she had visited on a regular basis. The pursuer also led an active social life. With her friends she visited clubs, such as the British Legion and an Ex-Servicemen's Club. She did so at least once a fortnight. Every weekend she looked after her two grandsons, the sons of her daughter Carol Nodzac. At that time, Mrs Nodzac worked every weekend, with a doctors' deputising service. The two boys, who are now aged 14 and 11, stayed overnight with the pursuer, who took them out and about, particularly to the local public parks. Every Wednesday the pursuer went to visit her daughter's house, in the Longstone area of the City. During those visits, she helped with ironing and housework.

[4] In her evidence the pursuer described herself as having been a fit and independent person. Although she may have lived on her own, it was obvious from the pursuer's evidence that she pursued a variety of activities, was interested in other people and enjoyed contact with people of all ages. The evidence her daughter gave confirmed that impression. None of that evidence was disputed on behalf of the defender.

Immediate aftermath of accident

[5] The pursuer's accident occurred on a Saturday afternoon. Immediately after the accident, the pursuer and her grandson were driven to her home by car. The pursuer was anxious to be taken home, in preference to having an ambulance summoned. Later that day the pursuer's daughter took her to Leith Hospital. By this stage the pursuer could hardly stand. Her right leg was swollen and extremely painful. The pursuer was medically examined. She was advised that the medical staff did not think that any bones were broken. She was told that she would develop some bruising and was sent home with her daughter. The pursuer went to stay at her daughter's house overnight. During the following day, she returned to her own home. At that stage the pursuer wished to be on her own, in her own house. During the Sunday the pain in her right leg got worse. The following day the pursuer contacted her general practitioner. She was given an appointment at his surgery, but not until two days later. When she saw her general practitioner on the Wednesday, he immediately sent her to the Royal Infirmary of Edinburgh, where she was detained.

Knee injury
[6] On her admission to the Royal Infirmary, it was discovered that the pursuer had sustained a fracture of the right tibial plateau. On 12 March 1999 the pursuer underwent surgery, involving an internal fixation of the tibial plateau, supplemented by a bone substitute preparation. She was detained in hospital for approximately one week. She was discharged into the care of her daughter, where she stayed for approximately three weeks.

[7] While the pursuer was living with her daughter, everything required to be done for her. A bed was installed in the living room, so that she could sleep downstairs. It was necessary for her to use a commode. Her daughter required to attend to the pursuer's personal care. At this stage the pursuer was wearing a knee brace, which she continued to require until 21 April 1999. Up until that date she also required to use wooden crutches.

[8] Following the removal of her knee brace the pursuer used metal crutches. She developed a very stiff right knee, despite the physiotherapy she was undergoing. As a consequence she was admitted to the Princess Margaret Rose Orthopaedic Hospital where, under general anaesthetic, a manipulation of her right knee was carried out on 25 May 1999. That was successful to the extent of achieving approximately 90º of flexion in her right knee joint. Full extension of the right knee could not be achieved. That restriction in movement remains.

[9] The pursuer required physiotherapy for her right knee, between March 1999 and September 1999. This took place at the Western General Hospital. In due course, the pursuer managed to change from using crutches to using sticks. She required to use two sticks for a while, but now only uses one. She uses a stick when she is out of her house. Within the house, she only does so when she is feeling tired.

[10] From the evidence that the pursuer gave and the terms of Professor Court-Brown's reports, it is clear that the pursuer's right knee remains stiff. This stiffness will be permanent. It restricts her walking distance. It affects her ability to descend stairs or slopes. She continues to suffer from impaired flexion and extension. She is unable to squat or kneel. She suffers from some discomfort in her right knee. To avoid pain and discomfort in her knee, the pursuer sits on a stool whilst she is cooking. X-rays have shown signs of degenerative change in the pursuer's right knee. Professor Court-Brown considers that the impaired movement in the pursuer's right knee will worsen, that the pain in her knee will increase and that eventually a time will come when the pursuer will seek a knee replacement, although it is difficult to know when such a replacement will be required.

[11] In her evidence, the pursuer explained that the problems in her knee have affected her ability to get out and about. On a good day, all she can manage is half an hour's walk. She walks with a stick and on occasion requires to rest on a park bench. On bad days, she has difficulty in walking any distance at all. She is no longer able to dance and, on account of the travelling involved, she is no longer able to visit the elderly. Since the accident, she has been unable to look after her grandsons. The pursuer continues to reside on her own, but she now sees her daughter two or three times a week. She baths at her daughter's house, as she requires assistance when getting in and out of the bath. The pursuer can still carry out some light housework and cooking, but her daughter requires to do a weekly shop for her and to help with her laundry.

[12] As far as the pursuer's knee injury is concerned, the evidence she gave was not challenged. Nor is there any dispute about the medical evidence relating to that injury. In these circumstances, it is quite clear that the right knee injury has, by itself, led to a significant and permanent deterioration in the pursuer's ability to get out and about and in her overall enjoyment of life.

Back injury

[13] Despite the agreement relating to the medical evidence, to which I have referred, it became apparent during the course of submissions that there remained a slightly surprising and most unfortunate dispute as to whether the pursuer had sustained a fracture of her fourth lumbar vertebra, as a consequence of the accident. To set the scene in respect of that dispute, it is necessary to note that in the Closed Record, which was placed before me when the case first called for proof, it was averred, on behalf of the pursuer, that she had suffered back pain since the date of the accident. It was also averred that the pursuer had sustained a fracture of her fourth lumbar vertebrae, that her back pain was centrally located in the lower lumber spine, that her back pain was constant, that it was exacerbated by bending or carrying and was particularly painful at night.

[14] Before the Closed Record was amended, in circumstances that I will turn to, the defender's response to those averments was that "the nature and degree of the pursuer's injuries are not known and not admitted". When the case called for proof, however, I also had before me a Minute of Amendment on behalf of the pursuer. That had been answered in Answers lodged on behalf of the defender. In those Answers the defender made certain specific admissions in relation to the injury sustained to the right tibial plateau. In the Answers, the pursuer's averments in relation to the fracture of the lumbar vertebrae were for the first time denied. Those Answers also included averments about the pursuer having a history of back pain, that preceded the date of the accident.

[15] Counsel for the pursuer intimated that he did not intend to move that the Closed Record be amended in terms of the Minute of Amendment. He did not, however, oppose the Closed Record being amended in terms of the averments contained in the Answers for the defender. Accordingly the defender was permitted to convert her Answers into a Minute of Amendment and the Closed Record was appropriately amended.

[16] In her evidence, the pursuer spoke to her having experienced a dull pain in her lower back, during the days following her accident. She admitted, however, having made no complaint about back pain to any of the medical or nursing staff, who had treated her at the Royal Infirmary. Although neither counsel invited me to consider the terms of the medical records of any of the hospitals, at which the pursuer was treated, or indeed the terms of the general practitioner's records, the lack of any such complaints, whilst she was being treated as the Royal Infirmary, was a factual issue referred to in Professor Court-Brown's medical reports and was, as I understand it, a matter of admission on behalf of the pursuer.

[17] In her evidence the pursuer spoke to having had a history of back pain that predated the date of the accident. That history had involved her consulting her general practitioner back in 1988, when she had had some time off work. She also confirmed that in 1998 she had had a further episode of back pain, when she had fallen down the stairs on a bus. The pursuer explained that she had suffered from back pain from time to time, for which she had been prescribed Co-proxamol and Brufen. In her evidence, the pursuer also explained that during the autumn of 1999, several months after the occurrence of the accident, she had complained to her general practitioner about her back pain. She indicated that, by that stage, she was no longer able to control the pain with painkillers. The pursuer was referred to the Western General Hospital, for a course of physiotherapy directed to her back. At that stage, there does not appear to have been any suggestion made, let alone diagnosis reached, that the pursuer had sustained any bony injury to her back, whether during the course of the accident on 6 March 1999 or on some other occasion.

[18] Professor Court-Brown first examined the pursuer on 3 December 1999.

X-rays of her spine, carried out at that time, showed long standing degenerative changes of her lower lumber spine and also an irregularity of the upper surface of the 4^th lumbar vertebrae, which, in Professor Court-Brown's opinion, 'almost certainly corresponded to a healed fracture of (that) bone'.

[19] Professor Court-Brown's two reports, Nos. 6/2 and 6/3 of process, are dated 10 December 1999 and 1 July 2002. In the "Opinion" section of his first report, he expresses the view that it seems highly likely that the pursuer sustained a fracture of her fourth lumbar vertebrae in the accident on 6 March 1999. That view appears to have been founded, at least in part, on the fact that his questioning of the pursuer had not revealed any other accident, during which she was liable to have broken her vertebrae, and a statement by the pursuer that she had experienced no back pain for about 7 years before the accident. In his first report, Professor Court-Brown also expressed the view that "the balance of probability is that her present pain follows her vertebral fracture".

[20] Professor Court-Brown's second report, which followed upon an examination carried out on 1 July 2002, also proceeds on the basis that the pursuer had sustained a fracture of the 4^th lumbar vertebrae. He does not specifically address the causation of that fracture, but does indicate that he suspected that both the degenerative change and the fracture played a part in causing the back pain of which the pursuer was then complaining.

[21] The evidence that the pursuer gave was not entirely consistent with what Professor Court-Brown records as having been her response to his own questioning of her. In her evidence, the pursuer not only spoke to having experienced back pain during the 7 years prior to the accident on 6 March 1999, she also spoke to having fallen down the stairs of a bus during 1998. That fall had caused pain in her back.

[22] Two issues arise: (a) "Has the pursuer suffered a fracture of her 4^th lumbar vertebra?" and (b) "If so, was that fracture caused by the accident on 6March 1999?". As I have observed, it is unfortunate that any dispute should remain, in relation to either of those issues, standing the fact that the parties informed me that they had agreed the medical evidence in the case. But such disputes do remain and in relation to both of them the onus of proof is on the pursuer. This is not a case where the parties have adjusted and lodged a Joint Minute agreeing certain facts, such as the nature of the injuries the pursuer sustained, the causation of those injuries or the prognosis in respect of those injuries. Rather the parties have chosen to limit their agreement and express it in terms that the contents of two medical reports are 'the agreed medical evidence in the case'. Accordingly, that agreed medical evidence falls to be assessed by me, in the light of the other evidence that I have heard.

[23] On the basis of the evidence that I heard from the pursuer and the agreed medical evidence set out in the two reports by Professor Court-Brown, I am satisfied that at some stage, prior to the preparation of the first report, the pursuer sustained a fracture of her 4^th lumbar vertebrae. I have, however, experienced much more difficulty in deciding whether the pursuer has established, on the balance of probabilities, that the fracture of the 4^th lumbar vertebrae sustained by the pursuer was caused by the pursuer's involvement in the accident on 6 March 1999.

[24] Having reviewed the evidence I have heard, and with a measure of hesitation, I have, however, reached the conclusion that the pursuer has discharged the onus upon her and has proved that she sustained the lumbar fracture during the accident on 6 March 1999. In reaching that conclusion, the starting point is the evidence of the pursuer as to what happened at the time of the accident and in the days thereafter. In her evidence, the pursuer said that following the accident she had felt pain in her lower back, in particular over the period beginning with the accident and covering the period when she was an in patient in the Royal Infirmary of Edinburgh. I believed that evidence, notwithstanding the fact that the pursuer made no reports about back pain, whilst she was a patient in the Royal Infirmary. Indeed it was several months after the accident, that the pursuer went to her general practitioner about pain in her back and was referred to the Western General Hospital for physiotherapy for her back. I am conscious of the fact that Professor Court-Brown's assessment, that the accident on 6 March 1999 was the likely cause of the fracture of the 4^th lumbar vertebrae, proceeded on his understanding that the pursuer had been free of back pain for 7 years prior to 6 March 1999 and that there had been no other accident in which she was likely to have suffered such an injury. As I have already observed, that does not entirely square with the pursuer's evidence in which she spoke to having suffered back pain prior to the accident and having been taken painkillers to control the back pain. Nor does it square with the fact that in her evidence, the pursuer also spoke of having fallen down the stairs, when she had been on a bus during 1998. Nevertheless, it is a clear inference from Professor Court-Brown's reports that he considers that the lumbar fracture could have been caused during the accident on 6 March 1999. That inference, when taken with the pursuer's evidence of the history and degree of her back pain, before, at the time of and after her accident and about the circumstances of the accident, has persuaded me that, on the balance of probabilities, the lumbar fracture was sustained on 6 March 1999.

Damages

[25] Turning to the quantum of damages there are a number of heads of loss claimed by the pursuer: (a) solatium, past and future, (b) awards under section 8 of the Administration of Justice Act 1982, past and future, (c) awards under section 9 of the 1982 Act, past and future and (d) recovery of the costs incurred by the pursuer in fees paid to the chiropractor she consulted about her right knee.

Solatium