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Carter v. Carter & Ors [2005] ScotCS CSOH_2 (11 January 2005)
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OUTER HOUSE, COURT OF SESSION |
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A974/01
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OPINION OF T G COUTTS, QC Sitting as a Temporary Judge in the cause JOHN CARTER Pursuer; against (FIRST) KATHLEEN CARTER & OTHERS Defenders: ________________ |
Purser: Armstrong, Q.C.; Russell Jones & Walker
First Defender: Clancy, Q.C.; HBM Sayers
Second Defenders: I Ferguson, QC., Wade; Simpson & Marwick
Fourth Defender: J G Thomson; Bishops
11 January 2005
Introductory
[1] The pursuer was injured on 26 May 1997 when a car driven by his late wife, Kathleen Carter, left the roadway running between Countesswells Road and the village of Cults in Aberdeen. As a result of that the vehicle hit a tree and the pursuer sustained injury thereby. On 26 June 1997 the pursuer was admitted to Aberdeen Royal Infirmary suffering from a stroke. [2] Mrs Carter suffered from progressive multiple sclerosis and because of her deteriorating condition, the pursuer had caused hand controls to be fitted to the vehicle a few days before the accident. The accident occurred on the first occasion that Mrs Carter drove the vehicle with hand controls. [3] The issues in the action were: how the accident happened; whether Mrs Carter could avoid a finding of negligence; whether the pursuer was contributorily negligent; whether the garage which supplied the hand controls bore any responsibility for the accident, and finally, the difficult medical question of whether the pursuer's stroke was a consequence of the accident. [4] Shortly before the proof Mrs Carter died, but, by co-operation of parties, it was possible to sist her personal representatives as defenders and so allow the proof to take place as arranged. By the time the action came to proof the defenders had decreased to three in number. By the end of the proof the fourth defender and the pursuer had agreed that the fourth defender be assoilzied. The fourth defender had been the actual fitter of the hand controls.The Accident
[5] The driver of a vehicle which leaves the carriageway is prima facie liable for the consequences of that event and requires to discharge the onus of displacing that presumption. The first defender sought to do so, by invoking Mrs Carter's medical condition and by seeking to attribute fault to the second defenders, a garage which arranges for the fitting and supply of controls.
[6] Mrs Carter's multiple sclerosis had progressed to the extent that, some months before the accident, she had been classified as sufficiently disabled to be entitled to a mobility allowance. That enabled her to acquire a vehicle under the motability scheme. The vehicle, a Ford Fiesta, was purchased from the third defenders. It had automatic transmission and so had only two foot pedals. For a time the vehicle was driven by Mrs Carter without modification. She continued to drive it until early in May 1997 when she drove the vehicle into her driveway striking the corner of the garage. Damage to the front bumper resulted. [7] The only evidence about this incident and also about the accident itself came from the pursuer and from a statement signed by Mrs Carter on 27 November 1997 - 7/10 of process. The pursuer's evidence and Mrs Carter's statement did not coincide in every respect. It is further noted that the averments which appeared on the pleadings on behalf of the first defender were unaltered from those which had been instructed by Mrs Carter. Any averments of fact stated in the first defender's pleadings must have derived from her instructions. [8] Her said statement about both the incident and accident, was obtained over the telephone by Mr Mann, an insurance claim investigator acting for the insurers of the vehicle. He collated it then sent it to Mrs Carter for approval and signature. Her signature was witnessed by the pursuer. All this had taken place by November 1997. Neither the averments made by, nor the evidence given in court by the pursuer coincided with that statement. Since the content of the statement could not be tested by cross-examination as to fact, I could not accept it as necessarily providing a wholly accurate account of events. In particular, in paragraph 3 of the statement about the first incident Mrs Carter narrates that she "crashed the car into the house when entering the driveway. My right foot went on the accelerator and I wasn't able to remove it." Mrs Carter's own version of her right foot jamming on the accelerator pedal does not equate with the evidence of only minor damage caused when the vehicle struck the garage; nor with the account given by the pursuer both at the second defender's premises and on his pleadings that Mrs Carter had been unable to operate the foot brake. These inconsistencies about the incident are of importance in trying to establish what happened at the time of the accident on 26 May 1997. I do not accept that at the time of the collision into the garage the right foot "went on the accelerator", that would imply that the action was involuntary. [9] At all events, it was because of her failure adequately to control the vehicle with her feet that the decision was taken to have hand controls fitted. Thereafter all the arrangements for the acquisition and fitting of the hand controls were conducted by the pursuer. The pursuer gave instructions to the second defender's employee Mr Masson on the matter. The only information given to Mr Masson which I hold to have been established was that he was told that Mrs Carter had been unable to operate the foot brake. In an automatic vehicle ability to operate the foot brake is of crucial importance. [10] Hand controls, consisting of a lever on the right hand side of the steering wheel were fitted. The lever was simply operated by moving it up to accelerate and down to brake. Using the hand controls had the effect of operating the pedals. [11] The actual fitting of the device was conducted by the fourth defender who complied with instructions given to him. There were no suggestions made by anyone at any time about the importance of or any necessity for a foot guard for the safe operation of the vehicle. If, as she maintained in her statement, Mrs Carter had her foot jammed on the accelerator at the time of the accident then a foot guard would plainly have prevented that from happening. [12] Mrs Carter took no part in the negotiations, instruction or ordering of the hand controls. She did not convey either directly or through the pursuer any relevant factors about her disability which indicated a need for the provision of a foot guard. The hand controls were fitted to the vehicle after the pursuer had taken it in to have the damage sustained in the driveway incident repaired. The pursuer collected the vehicle and saw the controls. They were simple. He understood how they worked and he drove the vehicle home. He later took his wife out for a test drive. He showed his wife how to use the hand controls while driving westwards in Countesswells Road, Aberdeen. He stopped the car in a lay-by for Mrs Carter to take over the driving. In her statement she says that she had been shown the hand controls and she tried them in the lay-by and "managed fine". She then drove westwards on Countesswells Road and made to turn leftwards on to the road to Cults. It is here that her statement again becomes somewhat difficult to follow. She related that she lost control and the car accelerated rapidly round onto the road to Cults. Then her account was that the car "almost came to a halt" but took off again and that the hand operated brake did not work. In her statement she expressed the opinion that her right foot must have been on the accelerator pedal, although she had no idea that her right foot was resting on the accelerator; as a result she could not brake the car using the hand controls. [13] The pursuer's account of events adds nothing on fact and his evidence only amounted to stating that the car accelerated out of control. The roadway itself was on a downward but not severe gradient. [14] To the obvious question of why Mrs Carter's foot was on the accelerator, if it was, I have concluded on the balance of probabilities that the only way that it could have been there was as a result of voluntary action. Having carefully perused those medical records produced relating to the lady, I find no suggestion that at that time her disabilities, or any lack of control of her lower limbs, was demonstrated by way of any form of spasm or involuntary movement. I conclude that her disability at the time of the accident meant that she might not have been able, voluntarily, to move her foot away from a particular position such as from the accelerator pedal. It would not have involved her foot involuntarily in a spasm jerking from the well of the car onto the one pedal which could cause an accident if depressed. [15] There was no question or suggestion that Mrs Carter was in any way incapable of rational thought or that she failed to understand the mechanism of the hand operated controls. She could and should have operated them. She did not, but instead put her foot on the accelerator pedal and was then unable to remove it as I find had happened at the garage incident. As a result the car left the roadway at speed and hit a tree as a result of which the pursuer sustained injury. The extent and consequence of that injury are discussed below.Case against the Second Defender
[16] The case pled against the second defender as responsible for Mr Masson by the pursuer and first defender reading a combination of their pleadings was that Mr Masson could and should have advised that pedal guards should have been fitted along with hand controls. It was also suggested that there was a duty on the second defender, and on Mr Masson, properly to instruct users of hand controls in their safe use and to fit or cause to be fitted a foot guard. All of this however was predicated upon Mr Masson being aware of Mrs Carter's actual disability. He knew that she suffered from multiple sclerosis and knew from information given to him by the pursuer that she had been unable to operate the foot brake. On averment, there was no suggestion that Mr Masson had been made aware of a failure due to incapacity to remove the foot from a pedal. [17] These averments were to a material extent developed and expanded upon in the course of the proof with suggestions that Mr Masson should have made further enquiries as to the precise disability, and should have ascertained whether a foot pedal guard required to be fitted. One suggestion was that such a device was almost invariably fitted. That contention followed upon a report which initially tended to suggest that foot pedal guards should always be fitted. [18] However, in her evidence to the Court, the author of the report, Dr Caldwell made it plain that she was reporting as a matter of generality upon the availability of devices for disabled persons and that she had no information upon which she could make an assertion that foot pedal guards should have been fitted in this case in response to of Mrs Carter's special needs and condition. To the Court, in the course of cross-examination by the second defender's counsel, Dr Caldwell stated that what she was able to do for the benefit of the Court was to indicate what was available but that she did not anywhere in her report recommend that a pedal guard should have been fitted in this particular case. [19] In these circumstances it appeared to the Court that the pursuer was not justified in asserting that because a pedal guard might have prevented the accident it followed that it was the second defender's duty to advise of its necessity and fit it. The evidence was entirely that the fitting of a guard was dependent upon the particular circumstances of a disabled person. They were not invariably fitted when hand controls were required for a person suffering from multiple sclerosis. [20] Nor do I consider that it was established that there was any duty upon Mr Masson, or on the second defender to go beyond the instructions he was given. On the evidence Mr Masson was a salesman not a mechanic or a disability expert. With the benefit of hindsight, he might have suggested a foot pedal guard but according to his own evidence he was not at that time aware of such devices in the course of his work as a salesman. Thus I am unable to hold that it has been established that there was any duty upon the second defender or Mr Masson to advise that a pedal guard be fitted or to fit one in the circumstances of this case. The matter does not end there, however, because there was no medical evidence that Mrs Carter at that time required a pedal guard to keep her foot away from the accelerator. It would be imposing too high a duty upon Mr Masson the salesman to hold that he should have considered the likelihood of a sensible person such as Mrs Carter overriding the manual controls by way of a voluntary act. Mr Masson in fact was only told that Mrs Carter had been unable to operate the brake, not that she was incapable of taking her foot from the accelerator or was liable to place her foot there accidentally and then be unable to remove it. [21] In all these circumstances the pursuer and the first defender have not established breach of any duty of care owed by the second defender to Mrs Carter and through her to the pursuer.Contributory Negligence
[22] The question here is whether the pursuer was to any extent the author of his own misfortune by failing properly to instruct his wife in the operation of the vehicle, and by testing out the vehicle in the place that he chose and in also failing properly to inform the second defenders of the extent of Mrs Carter's disability. To the first and third of those propositions the simple answer is that he was not aware that she suffered from any condition which might involuntarily get her foot onto a pedal and so cause loss of control. In relation to any other matters, the pursuer felt justified and in my view reasonably, in taking the view that his wife knew and understood what was required. She was in any event an experienced driver and although the first drive might have been better conducted elsewhere, the event which happened could have occurred at any locus. There were no other matters in which the pursuer might be said to have failed to take reasonable care for his own safety and I hold that any case of contributory negligence is not established against him.The Pursuer's Injuries
[23] Parties were agreed in a Joint Minute that the pursuer's injuries excluding any stroke would attract solatium at the figure of £1,500 but if the stroke did form part of the pursuer's injuries as a result of the accident, solatium would have been £15,000 and there would also have been patrimonial and other losses. [24] The medical opinions given in the case were markedly divergent and none of them was expressed positively but only on the basis of such theory as was put forward by the witness being more likely than not. It is therefore important to consider what incontrovertible factual background existed and what consideration was given to that by the various experts in coming to the views expressed in their reports and evidence. The origin of the pursuer's stroke could not be scientifically proved, since the only definitive investigation available in 1997 was not carried out. The doctors, at that stage, rightly, were not so concerned with establishing a possible cause of the stroke as to feel it necessary to undertake what all agreed was an invasive procedure carrying a risk which was unacceptable in the circumstances. A similar decision must have been taken in many other cases. Thus the availability of evidence and the scope of views derived from experience of such events in other patients are limited, although it may be that today a better and non-invasive investigation could be made in such a case. [25] The pursuer had worked at a moderately strenuous level of activity offshore. In order to be accepted for such work he was medically examined annually. Nothing adverse to his working ability was recorded. In particular, on these examinations his blood pressure was taken and nothing remarkable was conveyed to him. He was 58 years of age and at the time of the stroke was apparently in good health and had no known or obvious risk factors at that time. He was a non-smoker. There was, however, some evidence of possible elevated blood pressure, which is discussed below. At the time of the accident he was restrained by a seat belt, suffered some bruising and right-sided neck pain and received a blow to his chest. That blow might have caused a sternal fracture, but despite some assumptions made in the expert reports, it was not established that there was in fact a fracture of the sternum. Nonetheless, the deceleration could well have caused some whiplash injury. There was no compelling evidence about velocity but it is likely to have been a deceleration from between 45-50 mph to zero. He was admitted to Aberdeen Royal Infirmary Accident and Emergency Department and discharged home that day. A month later he complained to his general practitioner of having suffered a dizzy spell and of right sided and frontal headaches, worse in the morning, which features, it was said, had started two weeks earlier. On 29 June, five weeks after the accident he was admitted to Aberdeen Royal Infirmary suffering from the stroke. He has made a reasonable recovery from that and has suffered no subsequent incident. [25] Various examinations were made and several opinions were expressed in writing, in various productions, but the actual evidence before the Court came from the pursuer's general practitioners, Dr Peattie and Dr Moore, and from Professor Weir, consultant radiologist at Aberdeen Royal Infirmary. Those witnesses saw the pursuer at the time. There was also expert opinion evidence from Dr Richard Davenport and Professor Warlow who were led on behalf of the pursuer and from Professor Bone, led on behalf of the second defender. Each of these three witnesses had extensive experience, had written many learned articles and filled consultant posts for a number of years, all as evidenced by the compendious CVs produced. [27] It might be noted at this point that Dr Davenport and Professor Bone both gave preliminary written opinions before seeing all the available material and so had formed a preliminary view at an early stage; these were produced. [28] Professor Weir performed an echocardiogram which he reported as revealing "slight atheromatous dilatation of the ascending aorta to just over 4.1 cms (upper limit of normal 4.0). No aortic valve disease. Normal left and right ventricular function with no evidence of cardiac thrombosis. Essentially a normal examination." That report was subjected to textual interpretation by the above-mentioned experts but Professor Weir's evidence was that he had seen atheromatous change and that change had caused a slight dilatation. There was no question but that atheroma was present he said; he had seen it. I accept that evidence and hold that there was atheroma in the pursuer's ascending aorta. Professor Warlow and Dr Davenport, on their interpretation of the report, down-played the presence of atheroma. Professor Warlow going so far as to say that the report simply meant that the reporter did not know (6/11 of process). Dr Davenport did not mention atheroma at all in his written reports despite his having seen the Aberdeen Infirmary Records, in which the report by Professor Weir is available. [29] The mechanism of the pursuer's stroke was said by Dr Davenport and Professor Warlow to be due more likely than not to a dissection of a vertebral artery as a result of the accident. Professor Bone's contrary view was that this could not be held established on the balance of probabilities. [30] Dissection of a vertebral artery is a rare cause of stroke. Dr Davenport said that it might account for some 5% of all strokes whereas 50% were caused by atheroma according to Professor Warlow. Dr Davenport also said that atheroma was the commonest cause of a stroke. [31] Matters which were not in doubt were that when dissection occurs it is usually as a result of some trauma, but again, usually, occurs as a result of congenital weakness of the vessel and also at an early age. It consists of the lining of the artery becoming detached within the wall of the vessel so forming a blister which can produce thrombotic effects and restrict blood flow in the artery. Such dissections can and normally do resolve. Persons over the age of 50 years are not likely to suffer such a dissection but can do so. Equally, if there is to be a dissection as a result of trauma, it usually occurs within a matter of days, but instances are recorded and were given of longer delays. The lapse of one month or so in the present case was regarded as significant for diagnosis being doubtful but not as fatal to the theory of dissection. [32] The alternative proposition was that of Professor Bone which he summarised in his report of 15 October 2003 when he said that the likelihood is that the pursuer's stroke mechanism was arthro-thrombotic and not vertebral artery dissection. Any relationship, he continued, between the accident and his stroke is significantly less than 51%. [33] By the time they gave evidence all the experts had had an opportunity of considering the CT scan which was carried out of the pursuer's brain and dated 29 June 1997. The experts differed widely on their interpretation of that scan. In addition there had been a Doppler scan which indicated a reduced blood flow in the left vertebral artery. The left and right vertebral arteries however, it was agreed, are not necessarily symmetrical and may in normal situations show a different rate of blood flow. [34] The factors suggested by the pursuer in order to support his experts promoting a traumatic left vertebral artery dissection explanation of the stroke were, first, the mechanism of the accident; second, the recurrent transient symptoms before the main attack; third, no repetition of the major stroke; fourth, the absence of any evidence of atheroma subsequent to 1997, (no atheroma was disclosed in tests six years later, albeit of a different area); fifth, the suggestion that there was no evidence of any other source of embolism; sixth, the pre-stroke headaches, headache being more likely at the time of a stroke if atheroma is the cause; seventh, the fact that the pursuer was a low risk for a stroke of systemic type having no family history of ventricular disease, was a non-smoker, and a healthy active man of 58; eighth, the reduced blood flow in the left vertebral artery; ninth, a reading of the CT scan as providing support because the infarction was in the vertebro-basilar territory of the brain or at least the vast preponderance of signs were found there. [35] I am able to accept that factors 1, 3, 4, 6, 7 and 8 have a sound and positive factual basis. [36] The contrary view strongly relied on the finding of atheroma by Professor Weir. In addition, there was the reading of, in particular, slide 13 of the CT scan which was said to show small vessel disease. There was blood pressure elevation at and frequently after the incident; there was a significant lapse of time between the accident and the stroke; the presence according to, Professor Bone, of signs of some calcification of the basilar and right medial carotid arteries; the right sided and frontal headache being inconsistent with the perceived area of infarcts; the signs of small vessel disease and the presence of multiple infarcts all militated against dissection and subsequent thrombosis as the cause of the stroke. [37] The evidence on all of these matters does not lead to any clear conclusion, even on the balance of probabilities. The significant factors in my opinion are the rarity of the postulated dissection mechanism, the lapse of time between the event and the accident, the pursuer's age and the undoubted presence of atheroma in the ascending aorta. These make a dissection as the cause of the stroke less likely. [38] I did not consider that the various blood pressure readings and recordings convincingly assisted one theory as opposed to the other, although it would be incorrect to say as was suggested for the pursuer, that the pursuer did not suffer from significantly elevated blood pressure on at least some occasions which were not related to direct trauma or such precipitating factors. I do not think it is correct to assert that the dissection theory was supported by the four elevated blood pressure recordings throughout. If anything the readings support Professor Bone's analysis. [39] The fact that two witnesses gave evidence for the pursuer and only one for the defender on these matters is not significant. As a matter of general comment, Professor Bone was more guarded and cautious in expressing his views than either Professor Warlow or Dr Davenport. They were, in my view, attempting to establish an unusual as against a more likely cause of stroke. Their proposition was in substance, that there can be dissection of a vertebral artery even in a man of 58; that the sequelae of dissection can cause a stroke; that the pursuer had a stroke, therefore his stroke was the result of a dissection. Had it been established that there was a dissection the inference could be drawn that it was the likely cause of the stroke but there was no evidence of a dissection and no basis for the double inference sought to be drawn. [40] I note also the extreme disagreement between the experts on the interpretation of the CT scan. I am not competent to decide medical matters and so cannot feel confident in preferring one respectable expert view against the other, Professor Bone seemed more persuasive in his interpretation of the scan as a whole, and in particular section 13 thereof with his interpretation of a mark noted on that slide as calcification. The contrary suggestion was that it demonstrated a pituitary fossa. Calcification seemed more likely and its presence could explain a stroke. [41] The only clear scientific clues in this problem are in Professor Weir's report which I accept demonstrates the presence of atheroma and in the CT scan, but the conflicting interpretations of it have left the Court in complete doubt. If it shows multiple infarcts as contended for by Professor Bone, then the dissection theory is unlikely. If it does not but shows one coherent picture of a single cause, then atheroma is less likely. Professor Warlow in his evidence modified his original report by agreeing that if there was atheroma (which he had thought was uncertain) then the dissection theory would have to be regarded with greater caution. The matter is left unresolved. [42] None of the other factors above quoted is sufficiently persuasive, in itself, even having regard to the absence of any additional or further evidence of atheroma elsewhere, to tip the balance towards dissection. [43] In that state of the evidence, having reviewed it as carefully as I can, I have to conclude that the pursuer has failed to establish that his stroke was, on the balance of probabilities, the result of the accident. [44] Had I been able to find that the stroke was the result of the accident the matter of damages other than solatium required to be resolved. The pursuer contended that he would have been able to work until aged 65, which he has now passed and evidence was led that his particular skills were in short supply and would more than likely have been utilised. The full loss, assuming that he was entitled to his earnings until aged 65 was calculated at £277,084.73 and to that interest at the rate of 4% until the rate increased to 6% would require to be added. [45] The defender contended that the appropriate calculation to age 65 was £210,000 rounded but that took no account of possibility or indeed probability of gaps or interruptions in his earning ability. In particular, there would have been interruptions because of the condition of his wife's health as well as any other matters which might have caused him to be off work. There were also some post accident earnings to consider. [46] Bearing these factors in mind, I would have awarded the agreed sum of £15,000 as solatium and £150,000 in the patrimonial loss. [47] In the event however, I shall sustain the pursuer's first plea-in-law, repel the pleas-in-law for the first defender, sustain the second and third pleas-in-law for the second defenders, repel the second defender's fifth plea-in-law and grant decree in the sum of £1,500 with interest thereon at 8% until the date of payment from 29 June 1997.