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Denholm v. Gates Power Transmission Ltd [2005] ScotCS CSOH_102 (02 August 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 102

A385/03

OPINION OF LORD EASSIE

in the cause

KATHLEEN DENHOLM

Pursuer;

against

GATES POWER TRANSMISSION LIMITED

Defenders:

________________

Pursuer: Hajducki, Q.C., Christine; Thompsons

Defenders: Springham; Brechin Tindal Oatts

2 August 2005

[1] On 21 April 2000, the pursuer suffered an accident at her work with the defenders in their factory at Heathhall, Dumfries. She had worked at that factory - either for the defenders or their predecessors - since 1965, shortly after leaving school. Over the years she had performed various tasks at different times but at the date of the accident, and for some time previously, the pursuer worked in the finished goods warehouse as a "single box packer". The defenders manufacture timing belts for the automotive and industrial market and while many timing belts are shipped in bulk, in "nests", to meet the requirements of engine manufacturers some belts are packed singly in a cardboard box for the spare part market. The pursuer's task was thus to place a single timing belt, taken from a container of belts on a pallet, into a cardboard box which would then be put with other similar boxes into a carton for shipping.

[2] The circumstances of the accident are straightforward. A fellow employee had left a pallet standing on its edge in an upright position against a table situated a short distance behind the pursuer who was standing at her packing table. The pallet fell over and struck the pursuer's heels. In their pleadings the defenders admit liability to make reparation to the pursuer for this accident.

[3] After the accident, the pursuer was taken to the Accident and Emergency Department of the Dumfries and Galloway Royal Infirmary. The hospital attendance note records that, on examination, there was a skin laceration to the back of the heels of the right and left foot; movement was not restricted; there were no signs of tendon damage. The section headed "Nursing Notes" records a superficial graze to the right heel and left ankle. The pursuer was advised to take paracetamol and, if need be, seek review by her general practitioner.

[4] The graze or laceration to the pursuer's left heel resolved quickly and was completely healed within a few days. The healing process in regard to the skin laceration suffered by the pursuer's right heel took rather longer. According to the pursuer, the laceration kept bursting open when she placed weight on the heel and pus formed in the wound. The laceration to the right heel did however heal in due course. The pursuer placed this healing some 2-3 months after the accident. Her co-habitant, Mr Thomson, offered the view that the physical healing process lasted 4 or 5 months but accepted that it might have been a shorter period. For her part, the pursuer agreed that by the time she received physiotherapy, the wound to the right heel had healed up. From the records (No. 7/3 of process), her course of physiotherapy commenced on 30 May 2000. Given the greater ease and reliability with which it is possible to place events sequentially in time, rather than simply estimating a period of weeks, it appears to me that, while very slow to heel, the wound to the right heel had probably healed by the end of May - almost 6 weeks after the accident.

[5] Although the wound thus healed up the pursuer said in her evidence that she nonetheless continued to suffer pain and discomfort in her right foot. She described sensations of the foot swelling up; of discolouration of the foot, particularly the sole; an occasional burning feeling in the foot which was yet cold requiring her to wear bed socks; and particularly of pain at the back of the heel and at the side of her foot which made her walk "on tiptoe", which in her evidence she later described as effectively meaning that she would place the weight on the forefoot, thereby sparing the heel. In addition to the course of physiotherapy, which seemingly did not assist, the pursuer has had a variety of other treatments from various specialists. These included a consultant orthopaedic surgeon, Miss Costigan who inter alia treated the foot with a steroid injection and a consultant anaesthetist, Dr Meek, who in the course of the pursuer's attendance at his pain clinic in 2001 tried courses of medication, injections, use of a TENS machine and pain tapes. Latterly, in 2004, the pursuer attended a cognitive therapist. None of the treating specialists gave evidence but it appears that their efforts have failed to bring about a recovery.

[6] For the purposes of this litigation and on the instruction of her solicitors, the pursuer was interviewed and examined on 18 December 2004 by Mr Keith Rogers who from 1981 until October 2003 was a consultant in pain management at the Eastern Infirmary in Glasgow. Mr Roger's conclusion was that the pursuer suffered from chronic regional pain syndrome type 1, otherwise known as a sympathetic dystrophy. Mr Roger's evidence was taken on commission in advance of the proof. The other expert witnesses who gave evidence were two chartered clinical psychologists, namely Dr David Craig, who was tendered on behalf of the pursuer, and Dr William McKinlay, who was adduced on behalf of the defenders.

[7] As I understood matters it was ultimately not disputed by counsel for the defenders that the sensations of pain of which the pursuer complained were a manifestation of a sympathetic dystrophy, but, as was agreed by Mr Rogers, the extent to which the pursuer was suffering from the condition was relatively mild. As counsel for the defenders put it in the course of her submission, the basic issue in this litigation is the true extent to or intensity from which the pursuer has suffered and may continue to suffer from those sensations and the consequences in terms of patrimonial loss, namely her ability to have returned to work in the past or her current or future ability to resume employment.

[8] In some measure this basic issue arises because of the discrepancy between , on the one hand, the practical limitations on the pursuer's physical abilities and daily activities reported by the pursuer to those interviewing and examining her and, on the other hand, the evidence of the pursuer's actual activities provided in the form of video recordings taken on a number of dates by private investigators instructed by the defenders' insurers. There were three such surveillance exercises, each consisting of observing the pursuer on two consecutive days, namely on: 6 and 7 May 2003; 7 and 8 April 2004; and 19 and 20 August 2004.

[9] With the possible exception of Dr Craig, there was a degree of agreement among the expert witnesses that in giving an account of her disabilities both to them and to the other specialists whose reports were lodged in process, the pursuer represented that she suffered from a degree of disability greater than that which could be observed on the video tapes. Thus, by way of example, when seen by the consultant orthopaedic surgeon, Mr Ogden, in August 2001 the pursuer is noted as having said that she had difficulty transmitting weight through the right leg and that her walking distance was therefore limited to 200 or 300 yards. A similar complaint was repeated to Mr Ogden in February 2004. When seen by Dr McKinlay on 25 August 2003 the account of her disability noted by Dr McKinlay was that "she could not walk far: she would go as far as a small local shop, would have to stop quite often to take the weight off her feet ... she could not walk (e.g.) round a large supermarket". She also told Dr McKinlay that she only felt safe in her own house and that if she went out the back door, she checked that no neighbours were about since at times she preferred that no-one should see her. Dr McLennan recorded that the pursuer maintained that she found it difficult to stand for any length of time and that walking for any distance was painful. By contrast with these reported disabilities, however, the video recording taken on 6 April 2003 shows the pursuer, with Mr Thomson, going by car to the centre of Dumfries where, having parked the car, they walk some 100 yards to the High Street and on reaching the High Street walk some further 70 yards or so to an automatic teller machine before proceeding some further 120 yards to a building society office. The pursuer and Mr Thomson then walk back to their car and drive to a large supermarket where they shop for about 45 minutes the pursuer being the one who, unaided, pushes the trolley, loaded with approximately 6 bags of groceries across the supermarket car park to the couple's vehicle. On the following day - 7 May 2003 - the investigators observed among other things Mr Thomson spending over two hours cleaning and valetting his car, during which period the pursuer was present for most of the time standing beside him and chatting or seated in the vehicle while he cleaned it, handing him items such as a carpet mat or an ancillary tool for the vacuum cleaner. It is, I think, unnecessary to descend into detail respecting the other video surveillance exercises, which show broadly similar levels of activity, except perhaps to note that on 7 April 2004 the pursuer was seen to be engaged chatting with her neighbour over the garden fence. Later that day she set off with Mr Thomson on a visit to a furniture shop, which visit was followed by an extended visit to a retail park in which a number of retail outlets were visited. Thereafter the couple went shopping in the centre of Dumfries. This shopping expedition lasted in all for almost four hours. On the following day the pursuer and Mr Thomson went on further two hour shopping expedition to a food supermarket followed by a visit to a retail park, during which the pursuer pushed the trolley, walked unaided and to the observer proceeded naturally other than exhibiting a minor abnormality of gait.

[10] That exhibition of a minor abnormality of gait in circumstances in which the pursuer was being observed unbeknown to her is, of course, important. Having been shown the video recordings taken on 6 and 7 May 2003 at a date a little after his examination of the pursuer in August 2003 Dr McKinlay wrote on 30 October 2003 in (No. 7/8 of process) that the overall impression from seeing the pursuer in the video did not sit well with her very anxious presentation and her report of being very restricted. He expressed the view that it was hard "to avoid the conclusion that she has somewhat 'gilded the lily' - i.e. overstated the extent of the restrictions upon her". In his evidence Dr McKinlay made clear that, even in the light of the later videos, his impression was much the same as on viewing the first video, namely that, in his words, the pursuer was not a totally well woman who was making up all her complaints but, rather, that her disabilities were not at all as bad as she had been representing. Mr Rogers also agreed (pp76, 79-80) that what was seen on the videos of May 2003 was not consistent with what had been said by the pursuer to Mr Ogden and Dr McLennan. He observed that at the time when the videos were taken " her appearance was unimpressive in terms of suffering from a large amount of pain, but then she has not got a full blown syndrome by any means". He further agreed that she was not suffering from any major disability. Having recognised the inconsistency between what was seen on the videos and the reported extent of the pursuer's disability, the only other explanatory observation which Mr Rogers was able to suggest was that the syndrome could be intermittent, varying in intensity from day to day.

[11] Dr Craig first saw the pursuer on 2 March 2005 and in compiling his report (No. 6/7 of process) dated 7 March 2005 he had available to him the surveillance reports but not the video tapes, which he viewed only on the eve of giving evidence. In his report, Dr Craig recorded that the pursuer "acknowledged being able to visit her local shop and supermarket but reported much fear of being hit in the back of the heel accidentally from behind either by a shopping trolley or by someone else. She had found herself looking behind repeatedly when in busy places as a result." The pursuer also described herself as being able to walk a neighbour's dog for 20 minutes but that her maximum walking distance was 800 yards. Dr Craig's impression was of a very anxious patient and in evidence he stated that what was depicted on the videos demonstrated a defensive strategy to deal with the fear of being hit by a trolley by ensuring that her partner walked behind her and that in the videos one could see the pursuer looking behind repeatedly in busy places. However, when taken through all of the video tapes in detail, Dr Craig was quite unable to identify any passage in which the defensive strategy was apparent; and the only episode of what he described as looking round anxiously was a scene in which, having purchased a hanging flower basket, the pursuer was awaiting the return of her partner. While waiting for her partner there was one occasion when she looked round as another male approached from behind but passed by. The scene is a perfectly natural one. Counsel for the defenders was critical of the credibility of Dr Craig's evidence in relation to the video tapes and I agree that there is substance in that criticism.

[12] For her part, on being taken through the video tapes by counsel for the defenders, the pursuer agreed that there was an inconsistency between what was to be observed on the tapes and what she had told Dr McKinlay and Mr Ogden respecting the extent of her physical disability. In that cross-examination and, I think, in an endeavour to explain the inconsistency the pursuer volunteered that since February 2004 her condition had improved. She said that she was doing much more about the house and that her ability to walk had improved, as had her capacity for walking. However she maintained that prior to February 2004 her condition had been more or less constant.

[13] In his report Dr Craig described the pursuer as being an anxious patient - an impression also reached by Dr McKinlay who considered that various depressive elements might be added to that anxiety state. However, anxiety was a feature of the pursuer's personality long before the accident. She readily accepted that she had always been an anxious person and her own impression was that in general terms she was currently no more suffering from anxiety now than she had suffered before the accident. Mr Thomson also stated in his evidence that the pursuer had been an anxious and nervous lady before the accident - indeed for so long as he had known her (14-15 years) - and that, on that account, she did not go out socially to any great extent prior to the accident.

[14] The conclusions which I draw from the evidence, the principal features of which I have endeavoured to summarise, are that the laceration which the pursuer sustained to her left heel resolved quickly and was completely healed within a few days. The healing of the laceration to the right heel was prolonged, taking some six weeks. However, the pursuer developed a mild sympathetic dystrophy, also known as chronic regional pain syndrome type 1, which resulted in her having, and continuing to have, the sensation of some degree of pain in her right heel, which in turn leads to her walking with a mild abnormality of gait. The pursuer has also suffered and continues to suffer to some extent from certain other features of the dystrophy namely hyperalgesia, allodynia and intermittent discolouration of the sole of her foot. Prior to the accident the pursuer was an anxious person. The accident may have re-inforced that pre-existing anxiety and have reduced the extent of the pursuer's limited pre-accident social activities. The pursuer's pre-existing anxiety may have played a role in her developing the syndrome and it may well be that her anxious personality has played a part in her describing to the experts by whom she was examined or interviewed a degree of physical disability which was materially greater than that observable on the video tapes. Mr Rogers suggested that the inconsistency between the videos and the description might be accounted for by the pursuer having good days, if the syndrome were variable. However the pursuer did not suggest that she had a variable condition with bad and good days. Moreover, Mr Rogers' suggestion would imply that all of the three exercises randomly chosen by the investigators coincided fortuitously with two successive good days. While that may be possible I think it highly improbable. In my opinion, while the pursuer regrettably does suffer from chronic regional pain syndrome type 1, also known as sympathetic dystrophy, to a mild degree, which leads to her walking with an altered gait and being unable to stand still for prolonged periods, she is able to lead a relatively normal life, which includes her being able to undertake protracted shopping expeditions, involving a significant amount of walking and standing.

[15] As respects any improvement or aggravation in the pursuer's condition since the sympathetic dystrophy developed, it is difficult to put reliance on what was reported at various stages to the medical professionals, since it is clear that the pursuer, for whatever reason, magnified the extent of her disability. The pursuer herself took the view that at least until February 2004 her condition had been largely static. It had not changed materially between her seeing Mr Ogden in August 2001 and the video in May 2003; between that video and her seeing Dr McKinlay in August 2003; and between August 2003 and her seeing Mr Ogden again in February 2004. But as mentioned above, the pursuer did state in her evidence that matters had improved since February 2004. However, no mention of any such improvement was made to Dr Craig when he interviewed the pursuer in March 2005. Nor was any suggestion made in her evidence in chief that there had been any improvement after February 2004. The suggestion only came in cross-examination after it had become clear to the pursuer that there was a discrepancy between what she had been telling the experts and what was demonstrated on the videos. Given the stage in the pursuer's evidence at which she announced that there had been an improvement since February 2004, counsel for the defenders characterised the announcement as an attempt to explain the differences between the accounts given to the experts and what was plainly demonstrated on the videos. I think there is force in that submission.

[16] In chronological order the pursuer's ability to return to work is specifically addressed in the reports firstly by Dr McKinlay who, on seeing the pursuer on 25 August 2003, suggested to the pursuer that she should try to resume her social activities and that, if she were too anxious to do that, she should see her general practitioner and discuss referral to a clinical psychologist, her kind of anxiety being treatable. Dr McKinlay's report concluded with the view that he saw "no reason why, with appropriate treatment and encouragement, she could not undertake work which did not involve being on her feet a great deal." Dr McKinlay thought that work would be good for the pursuer from a psychological point of view. In his oral evidence Dr McKinlay made clear that the reference to appropriate treatment was treatment by general anxiety management, including treatment of the agoraphobic elements, which would involve 10-15 sessions with a clinical psychologist, initially weekly, but thereafter perhaps at more extended intervals.

[17] Following receipt of Dr McKinlay's report, those acting for the defenders wrote on 10 October 2003 to the pursuer's solicitors enclosing a copy of Dr McKinlay's report and inviting a return to work. The proposal was for a phased return, with the purser being seated, if she wished. (In her evidence, the defenders' human resources manager, Mrs Shields, explained that the ladies doing the single belt packing do so at a table with the choice of either sitting or standing. Mrs Shields also made clear that had there been any need for treatment as part of the return to work, that would have been accommodated). In her evidence the pursuer acknowledged that the defenders' proposal for her phased return to work had been conveyed to her through her own solicitors. She did nothing in response. The only reason which she offered in evidence for doing nothing was simply that no-one from the defenders had approached her directly. She agreed with counsel that she could easily have telephoned the defenders, visited the factory, or conveyed a message via Mr Thompson who was also employed by the defenders. But she did not do so. The pursuer agreed with counsel that she could have done the job which the defenders were offering in October 2003. The pursuer also testified that, having not taken up that offer, she had made no effort at all to find any alternative employment for the reason that she was still technically employed by the defenders and, according to the pursuer, this prevented her from exploring any other job possibilities.

[18] In his report in December 2004 Mr Roger gave as his opinion that in terms of occupation the pursuer "should be encouraged to live as active a life as possible including social life and work although obviously in the work situation, it would be helpful if she had a job where she did not have to stand on her feet for any length of time". He had, in the preceding paragraph of his report, noted that "Because of the presence of psychological distress I think it would be useful for Mrs Denholm to attend a pain management programme which exists at a few centres in the United Kingdom. The nearest ones to Dumfries being in Salford or Liverpool." In his evidence in chief Mr Rogers expressed the view that the pursuer would benefit from a pain management programme. The pursuer would be likely to improve to some extent because it was to be hoped that the programme would be able to convince her that she would not damage her foot by using it to a greater extent. He then went on to express the view that, if given the right counselling, the pursuer could undertake some work that would not put undue stress on her foot where she had the ability to move around a little and not be standing in one place for a long period of time. In cross-examination however Mr Rogers accepted, particularly in light of the videos, that the pursuer was not suffering from any major disability and that what was shown on the videos was not the lifestyle of someone physically incapable of work. Mr Rogers went on to say that currently, and when he prepared his report in December 2004, there was a psychological barrier to return to work arising from the psychological distress pattern induced by then persistent pain. He conceded that his report did not state that treatment on a pain management programme was necessary for a return to work and he explained that he had not stated that such treatment was necessary for the reasons that he did not wish "to make the report too long" and that he did not wish to express an opinion which was best expressed by a clinical psychologist.

[19] In his report Dr Craig took the view that the pursuer was currently not ready for any return to work. But with attendance at a pain management programme he saw no reason why the pursuer should not be able to return to her previous or similar employment. In his evidence in chief Dr Craig deponed that in his view the pursuer was suffering from a sufficient degree of pain to prevent her from working and he envisaged the necessity of attendance at a pain programme directed to a reduction in her anxiety, an increase in her activity, an increase in her confidence and improvement in her sleep.

[20] To assist in the assessment of the appropriate sum to be awarded for loss of earnings counsel helpfully provided agreed calculations of the wage loss accruing from the date of the accident to five different dates. The first of those five periods embraced the six months following the accident. The second period ran to 1 May 2003, that date being selected as the approximate time of the first video tape. The third period spanned the time between the accident and 1 February 2004, on the basis that the following Dr McKinlay's report and its communication to the pursuer's agents, together with the offer of a staged return to work, the date - 1 February 2004 - was (in the view of counsel for the defenders) a reasonable one to take as allowing for any treatment thought desirable and a staged return. The fourth period was from the date of the accident to the date of the proof. The fifth period extended from the accident to a date one year beyond the date of the proof.

[21] Counsel for the pursuer contended primarily for the fifth period. He rejected period 1 on the basis that, as he put it, it flew in the face of all the evidence. Period 2 had no logical basis. The third period, said counsel for the pursuer, did not take account of the need for treatment. No offer of, or detail regarding, treatment was put forward in the letter from the defenders' solicitors. So, said counsel, the pursuer's solicitors had to go to Mr Rodgers and there had been a delay in doing so. But even so, given the timescale required for treatment, the pursuer would not have been back to work at any time significantly earlier than the date of the proof. So, on any view, one came thus to period 4. However, period 5 was the most appropriate in that a return to work now would require attendance at a pain management clinic and given the time involved on that and the need for a phased return, it might be that a year would have elapsed before the pursuer would be back at work.

[22] For her part, counsel for the defenders contended firstly for period 1 on the basis that this was a very minor injury and, according to the pursuer, her condition had been largely unchanged over the years. Period 2, she said, reflected the coming into existence of the video evidence. But at all events, once Dr McKinlay's report was available and the offer of resumption of employment had been made there was no good reason for the pursuer not to have embarked on a resumption of employment. The date, 1 February 2004, was consistent with allowing for any treatment which the pursuer might have thought desirable.

[23] I have come to the conclusion that, of the periods discussed by counsel, the appropriate period for wage loss is basically the third, though it requires a relatively minor adjustment. (Counsel made clear that the "menu" of five periods was for my assistance, and the periods might be adjusted). I discard Miss Springham's suggestion of period 1 - the six month period. It appears that at the end of that period the pursuer was still receiving or about to receive various treatments. Additionally, as counsel for the pursuer pointed out that there is no expert evidence to support it. I am not persuaded that the second period is appropriate either. The date selected is in some ways an arbitrary one and I am not aware of the pursuer having, prior to that date, received advice that she should return to work. But the third period is, in my view, in a different position. At that stage both parties were in possession of Dr McKinlay's report advising return to work and the pursuer's employers had made an offer of staged re-employment. The pursuer was aware of this but, on her evidence, simply declined to pursue the offer on the ground that no-one had actually come to her personally, in her own home. Counsel for the pursuer sought to discount the third period on the basis that the offer of a staged return to work did not deal with possible treatment or give details of such treatment. I do not find this contention persuasive. While it is true that the letter to the pursuer's solicitors does not in itself refer to possible treatment, it nonetheless enclosed Dr McKinlay's report which suggested that the pursuer might see her general medical practitioner and discuss referral to a clinical psychologist. That advice was never taken up. Counsel for the defenders commented that it might be inferred that the pursuer thought such a consultation with her general practitioner and a referral to be unnecessary, and that such an inference might be consonant with what was shown on the video. However, assuming that advice had been followed, it might reasonably be concluded that the pursuer would be able to return to work by February 2004.

[24] As already touched upon, counsel for the pursuer stated in the course of his submissions that because details of treatment were not given in the defenders' solicitor's letter the pursuer's solicitors had to engage Mr Rogers, a step which was delayed for various reasons. In December 2004 Mr Rogers advised attendance at a pain management course. Had the pursuer gone on such a course, said counsel, at least a year would have then elapsed so, he said, at the least, the pursuer should receive wage loss in terms of the fourth period. I am not prepared to uphold that submission. I would observe firstly that, in addition to the fact that, as just indicated, the treatment envisaged by Dr McKinlay as a possible help for the pursuer was disclosed in Dr McKinlay's report, already in the possession of the pursuer's solicitors, I did not understand attendance at a pain management course to be an essential for any return to work. In his report, Mr Rogers simply described it as "useful" and in cross-examination he deferred to the view of a clinical psychologist. I did not understand Dr McKinlay to take the view that attendance on a pain management course was essential and of the two clinical psychologists, I prefer the evidence of Dr McKinlay to that of Dr Craig, who struck me both in demeanour and by reference to his evidence regarding the video tapes as having a far less objective approach to the issues than Dr McKinlay. But, in any event, the treatment envisaged by Dr McKinlay was 10-15 sessions with a clinical psychologist, at weekly intervals, in the course of which, the phased return to work would begin. On my understanding of Dr Craig's evidence, an in-patient pain management course would normally last 6-8 weeks, whereas out-patient treatment might be available with sessions spread over 10 weeks. There would, of course, be a waiting period before the pursuer could obtain a place on an in-patient pain management course, and Dr Craig instanced his belief that the waiting period for the course in Liverpool as being approximately 6 months. Accordingly I do not regard the very extended time for treatment in the fourth period as appropriate. However, given the uncertainties affecting waiting times for treatment I have come to the view that, to a minor extent, the date selected for the third period, 1 February 2004, may not be sufficiently generous in the time allowed for the pursuer to have been successfully referred to a clinical psychologist and to have made sufficient progress with treatment from that psychologist. I shall therefore adjust the date for the third period by adding to the agreed sum of £32,045 a further 2 months' nett wages, which (in terms of the Joint Minute) amounts to £1,738. The total wage loss before interest therefore becomes £33,783. Allowing for interest at the median rate from the date of accident to 1 April 2004, produces a sum for interest to that date of £5,083. From 2 April 2004 to date, interest should run at the rate of 8%. I accordingly calculate the interest for that period in the sum of £3,378. Inclusive of interest, the sum which I assess as damages for loss of earnings is thus the total of those three amounts, namely £42,244.

[25] As respects solatium, counsel were at one in agreeing that there was little in the reported cases which was directly in point. Counsel for the pursuer referred to the JSB Guidelines for reflex sympathetic dystrophy, "category (ii) moderate" which indicated a range between £14,000 and £21,000. However, as counsel for the defenders pointed out, the present case is one of a minor sympathetic dystrophy for which the JSB Guidelines offer no suggestion. Counsel for the pursuer also referred to my decision in Burke v Edinburgh Royal Infirmary NHS Trust 1999 SLT 539 in which I made an award of £20,000. I have to say however that the degree of disability, and the syndrome, from which Mr Burke was suffering was very much greater than in the present case. Counsel for the pursuer invited an award of £20,000, of which £5,000 would be attributable to future solatium. For her part, counsel for the defenders referred to Tietjen v Inns (Cockermouth) Ltd and Wilson v Hall both noted in Kemp & Kemp at paragraphs 18-019 and 18-014 respectively. She also referred to McIntyre v Strathclyde Regional Council 1994 SLT 933 which had the similarity in that the pursuer in that case had suffered from a similar condition, then known as causalgia, in the foot but had greatly exaggerated the true extent of his disability. Counsel for the defenders invited the making of an award for solatium of £6,000.

[26] Although the condition from which the pursuer is suffering is not particularly disabling, and she is able to lead a relatively normal life, the fact remains that the sensations of pain which she experiences in her right heel, along with the other features of the syndrome, are likely to persist for the future. While the treatment discussed by the expert witnesses may assist her in coping with those sensations, they will not remove them. Having regard to the nature of the pursuer's condition and its likely endurance for the future, and having regard to such assistance as may be obtained from the authorities to which I was referred, I have come to the conclusion that an appropriate award for solatium would be £10,000 of which I attribute 60% to the past. Allowing interest on the past solatium at the medium rate of 4% per annum, I calculate the interest to date on the solatium [5.3 years @ 4% per annum on £6000] in the sum £1272. The total award for solatium, inclusive of interest, will accordingly be £11,272.

[27] A claim is also advanced on behalf of Mr Thomson for services provided by Mr Thomson to the pursuer in consequence of her disability. Counsel for the pursuer put forward a figure of £11,422, which was based on a calculation of Mr Thomson's having spent at least two hours per day on such services during the first three months and one hour per day for the remainder of the period to the proof. Counsel for the defenders on the other hand submitted that a sum of £1,000 inclusive of interest would be appropriate. I accept that it is likely that during the first 3 months after the accident, Mr Thomson did more by way of particular assistance to the pursuer than he did in the period thereafter. I agree however with counsel for the defenders that the additional household tasks which Mr Thomson was thereafter called upon to perform by reason of the pursuer's disability are, in the words of counsel for the defender, "pretty minimal". Essentially the only particular task which Mr Thomson was able to instance was carrying the vacuum cleaner upstairs to enable the pursuer to clean the upper floor of their house. Mr Thomson agreed that prior to the accident he and the pursuer shared domestic tasks and my distinct impression was that apart from the initial period when the laceration to pursuer's heel had not healed up, that normal pattern of domestic life had continued as before. I shall allow a sum of £1,500, inclusive of interest, under this head of the claim.

[28] The heads of damages can be collected, or summarised, as follows:

(i)

Solatium, with interest on the past element of solatium:

£11,272

(ii)

Past wage loss, with interest:

£42,244

(iii)

Services (payable to Mr Thomson) with interest

£ 1,500

£55,016

I shall accordingly grant decree for £55,016 inclusive of interest to date as the award of damages in this case. By virtue of Section 15 of the Social Security (Recovery of Benefits) Act 1997, it is necessary that I specify the amount of compensation for loss of earning during the "relevant period", i.e. between 21 April 2000 to 21 April 2005. The amount is £33,783.