Scottish Court of Session Decisions

Pursuer: Hajducki, QC., Kennedy; Haig Scott & Co, W.S. (for Bannatyne Kirkwood France & Co, Glasgow)

Defenders: Ellis, Q.C., Fairley; HBM Sayers

16 August 2006

Introduction

[1] This action, which is a claim for damages for personal injury, arises out of an accident which occurred on Wednesday 25 October 2000 when the pursuer was working as a spray painter for the defenders, who operate a coachworks in Glasgow. Prior to the beginning of the proof, counsel for the parties tendered a joint minute in which inter alia they agreed that the accident was caused partly by the fault of the defenders and partly by the pursuer's contributory fault, the respective shares of fault being apportioned 80% to the defenders and 20% to the pursuer. Immediately prior to the close of the defenders' case, counsel tendered a further joint minute agreeing quantum of damages subject to the premise that the pursuer's current condition is caused by an acquired brain injury caused in turn by the accident. That premise reflects the central issue in dispute, which may briefly be described as whether the mental deficits from which the pursuer suffers are attributable to a brain injury sustained in the accident or to the development of some mental illness or disorder independently of the happening of the accident. Counsel and solicitors are to be commended for their co-operation in agreeing all but the essential issues. Resolving that issue remains a difficult task for the Court but it is of great help to have agreement on liability and, particularly, conditional agreement on quantum and I am grateful to counsel for their assistance.

The accident
[2] The circumstances of the accident are not now in any material dispute. On the afternoon of 25 October 2000 the pursuer was engaged in painting the lower part of the tractor unit of an articulated lorry. For reasons stemming from the carrying out of other work, the cabin had been tilted forward. In order to allow the cabin to be tilted forward a metal bar - described as a "tilt bar" - requires to be inserted horizontally into a socket or orifice on the tractor unit. The tilt bar had not been removed following the tilting of the cab and so still projected horizontally. The pursuer, who had been occupied with activities at the base of the tractor unit, (the witness Robert MacDonald thought that he had been cleaning paint brushes) rose from a crouching position and in so rising struck his head against the tilt bar protruding horizontally from its socket.

[3] The pursuer, who disclaimed ability to recollect some of the immediate post-accident events, accepted that the contact between his forehead and the tilt bar was just "an every day dunt". He was not knocked out, but, he said, there was a fair bit of blood. Robert MacDonald, who was at the rear of the tractor unit at the time, described the pursuer as having a scratch about one inch long. He suggested to the pursuer that he should get a plaster. As I understood Mr MacDonald's evidence, the pursuer went away but returned with a rag. As the wound was still bleeding, Mr MacDonald advised the pursuer to go to see his brother (who was the manager of the body shop at the defenders' works) or someone else. The pursuer then went away from the scene of the incident and was not seen by Mr MacDonald again that day.

[4] It is evident that the pursuer went to the first aid post. First aid was provided at the defenders' premises by another employee, Mrs Avril Matthews, who had been trained in first aid. In her evidence she stated that the pursuer had a wound to the forehead at the hairline; the wound was about one inch in length, open but not bleeding. She cleaned the wound but there was no need for a dressing. She checked with the pursuer that his vision was normal. The pursuer's speech was normal. The pursuer repeatedly said that he was fine and, according to Mrs Matthews, he was probably thinking that a fuss was being made. Since there was only half an hour to go before the pursuer was due to finish his shift, she spoke to his supervisor and obtained agreement to the pursuer's going home early. The pursuer then drove himself home, a distance of some ten miles or so. Shortly before the pursuer set off home he spoke briefly in the body shop with a fellow employee, James Barrat, to whom he said he was going home because he had banged his head. Mr Barrat said in his evidence that he thought the pursuer had been to first aid; there was a wee, slight cut to the head; there was no plaster on the cut and the pursuer seemed completely normal.

The immediate post-accident events
[5] In October 2000 the pursuer lived on his own but in a house in relatively close proximity to his mother's house. It was customary for him to leave his dog with his mother while at work. According to the evidence given by his mother, on the day of the accident (a Wednesday) the pursuer did not come to collect his dog and when she telephoned him about this he said that he wished to be alone, from which Mrs Rodgers inferred that he was tired. Mrs Rodgers looked after the dog overnight and did not see the pursuer that evening.

[6] One of the pursuer's brothers - Liam Rodgers - gave evidence to the effect that he visited the pursuer on that Wednesday evening. He did so in a response to a telephone call from his brother Michael (the bodyshop manager, who it appears, had learned hearsay of the accident). Michael asked him to call in to see the pursuer. Liam's visit lasted, according to his evidence, only five minutes or so. The pursuer was lying on a couch; with some traces of dried blood on his forehead; and he was still in his work clothes. According to Liam Rodgers, the pursuer said that he was fine and Liam Rodgers accordingly left.

[7] However, Liam Rodgers deponed that later, in the early hours of Thursday 26 October, he received a telephone call from one of the customers of his car valeting business to the effect that the pursuer was driving one of his, Liam Rodgers', cars erratically in Kirkintilloch. Liam Rodgers was able to locate the car driven by the pursuer, to flash him down and then take the keys from the pursuer. According to Mr Liam Rodgers the pursuer was talking "one hundred miles per hour". Particularly, he was crying over the fact that his father was dead (the father having died some years earlier). The pursuer was still in his working clothes. Liam Rodgers then took his brother home, got him to wash and go to bed, whereupon he left.

[8] The pursuer having - on Liam Rodgers' evidence - thus gone to bed in the early hours of Thursday 26 October 2000 the next contact spoken to by a witness occurred later on in the afternoon of that Thursday when the pursuer came to his mother's house. In her evidence his mother described him as crying and irritable, but being unable to explain what he was crying about. No mention whatever was made by the pursuer of the accident, or the incident in Kirkintilloch. Mrs Rodgers thought that the pursuer had been brought to her house by his then girlfriend, Jennifer Corke, who said that she had tried to get an appointment for the pursuer with his GP but had not been able to get one earlier in time than the following Monday. Mrs Rodgers was however able to arrange an appointment for the next day, Friday 27 October 2000.

[9] On that Friday the pursuer attended, with his girlfriend (who did not give evidence), at his GP, Dr David G Jamieson. Despite the lapse of time in giving evidence, Dr Jamieson was still able to recollect that consultation, his concern for the pursuer's welfare having led him to halt his normal surgery to arrange for the pursuer to be seen urgently at the Larkfield Centre. He diagnosed the pursuer to be suffering from severe depression. His referral letter (No. 7/8 of process, p.395) is in these terms:-

[10] The pursuer was seen at the Larkfield Centre on the same day, Friday 27 October 2000, by Dr Veena Math who at the time of giving evidence was a specialist registrar in psychiatry but in October 2000 was a recently qualified senior house officer. She completed in manuscript the Centre's standard initial assessment form (No.7/8 p.6) recording her findings on interviewing the pursuer. She noted the pursuer's report of his current symptoms in these terms:-

[11] In giving evidence, Dr Math did not proceed entirely upon her contemporaneous notes. She had to some degree an active recollection of the attendance of the pursuer and his girlfriend. While not wholly certain whether the girlfriend was present for the whole of her interview with the pursuer, or whether she spoke with the girlfriend towards the end of the process, Dr Math was clear that she sought confirmation from the pursuer's girlfriend of the pursuer's account. So far as the notes go, the views of the pursuer's girlfriend as noted are "Girlfriend happy that he has finally come to see a psychiatrist". Dr Math explained the inclusion of the word "finally" in this note as being that she understood the girlfriend to have been quite concerned for some time about the pursuer's mental state. Further, Dr Math confirmed that had the pursuer made any reference to a blow on the head as being causally or temporally related to his problems, she would have noted it. But no such reference is noted. Following discussion with a Dr Ball, the course decided upon on that Friday afternoon was that the pursuer should take an anti-depressant drug fluoxetine and stay with his mother, supported by his girlfriend and be seen by the community psychiatric nursing service.

[12] On the following morning, Saturday 28 October, Michael Rodgers went to the pursuer's house in response to a call from one of his other brothers. According to Mr Michael Rodgers, he found the pursuer "curled up like a wee monkey". The pursuer was asking where his Dad was. Since Michael Rodgers and others of the family did not know what was wrong with the pursuer, a GP was summoned. Being a Saturday, the visit was made via the emergency GP service. The GP who attended was Dr Colin Howat, who was adduced as a witness by counsel for the defenders.

[13] In his notes (No.7/10 p.100 - in the smaller handwriting on the sheet) Dr Howat records inter alia that the pursuer had been depressed for several weeks, that he been started on fluoxetine the previous day; that the picture was mixed with girlfriend problems, a job change in the preceding week and a lot of thinking by the pursuer about his deceased father. The pursuer was also suffering from insomnia. The diagnosis reached by Dr Howat was that of depression.

[14] In his evidence Dr Howat stated that he did in fact remember the visit to the pursuer at his home, possibly for three principal reasons. First, he was surprised that a request to see a 30 year old male with symptoms of being depressed and crying should have been treated as appropriate for an out-of-hours home visit. Secondly, he recalled being under pressure from the members of the family present in the house. And thirdly, in the course of the Saturday afternoon he fortuitously met Dr Jamieson and spoke to him about his patient. Dr Howat was thus able to add something to what he had recorded in his notes. He recollected that the pursuer was very withdrawn and it was difficult to get information from him. He said in evidence that his information about the history of the pursuer's condition came both from the pursuer and also from the family members present in the house. He was given to understand by both that the pursuer had been depressed for several weeks. Dr Howat had no recollection of any mention of the pursuer's having suffered a blow to his head in the preceding week and had such a mention been made Dr Howat would have made a note of it. According to his recollection, the family members present wished the pursuer's admission to a psychiatric unit because the pursuer was unwell and had been unwell for some time. In the event Dr Howat advised continuing the anti-depressant drug prescribed the previous day, with an early review by Dr Jamieson and the continuing involvement of the community psychiatric nursing service.

[15] According to the medical records to which reference was made in the course of the evidence, the pursuer was visited at his mother's house on Sunday 29 October by two members of the community psychiatric nursing service. The note of that attendance records the pursuer as having complained of feeling low and as appearing to be on the verge of tears. The pursuer admitted to thinking a lot about his deceased father and was concerned about Jennifer "two-timing him". The note also records that Mrs Rodgers said that the pursuer was not eating or sleeping and was pushing everyone away from him. An arrangement was made for the pursuer to be seen at the Larkfield Centre on the following day.

[16] The pursuer, however, did not attend at Larkfield in accordance with that arrangement. He was thought to have run away from home. His disappearance was reported to the police but in due course the pursuer was discovered hiding under his bed and the emergency GP service was immediately called at 2236 hours on Monday 30 October 2000. The GP who attended on this occasion appears to have been a Dr Finney, the note of his visit being at p.98 in No.7/10 of process. Dr Finney bears to have diagnosed "anxiety/depression" having got a history from the pursuer of inter alia his having run away and hidden because his brothers would not leave him alone. He appears to have complained of stress because of work and relationships with his girlfriend. Dr Finney appears to have advised him to see his GP, if required.

Hospital admission
[17] The pursuer's condition continued to give concern and it appears that on the evening of Tuesday 31 October 2000 he was the subject of an emergency admission to Stobhill Hospital on referral from the Larkfield Community Psychiatric Nursing Service. According to the admission notes (No.7/8, p.19 obverse) the account given by the pursuer was that he "had been feeling low and more pre-occupied with father's death". The pursuer denied any suicidal ideation and the note (p.19) quotes him: "Dr Math got it wrong I just took 2 or 3 extra paracetamol by accident because hurt my head". The note immediately continues:- "Hit head at work (spray painting) on Wed - 6/7 ago. Went on a real downer after that. No L.O.C. [loss of consciousness], no diplopia, no vomiting. Had been low for a couple of months but that made [?] worse". This is the first mention within the medical records of the incident on 25 October 2000 and to place it better in context I have thus set out the relevant section of the admission note. The pursuer was diagnosed again as suffering from depression and in light of his immediately preceding history the medical staff decided that he should be the subject of compulsory detention under section 25 of the Mental Health (Scotland) Act 1984.

[18] Having thus been detained on Tuesday 31 October, the pursuer's condition apparently improved rapidly to the extent that on 3 November 2000 Dr Ball (who did not give evidence) took the view that he should not continue under compulsory detention but should return the following day to stay with his mother, with the support of visits from the Community Psychiatric Nursing Services.

[19] However, it was not long before the pursuer was readmitted to the hospital. On the morning of 7 November 2000 the hospital received a telephone call from the pursuer's girlfriend to the effect that he had told her that he had tried to hang himself that morning. Dr Jamieson was informed but by the time Dr Jamieson reached the pursuer's house the pursuer had left home. The police were informed and they brought the pursuer to the hospital later that day. On admission the pursuer appears to have given contradictory accounts regarding the matter of attempting suicide but again gave an account of worrying about both the death of his father and his girlfriend, and of lying in bed crying. The pursuer was again diagnosed as suffering from depression. He was detained under section 24 of the 1984 Act and was in fact to remain as a compulsory patient until August 2001.

Emergence of diagnosis of acquired brain injury
[20] As just mentioned, when the pursuer was readmitted to hospital on 7 November 2000 he was diagnosed again as suffering from a depressive disorder. He was treated for depression and he continued to be treated for depression for at least the remainder of the year 2000. However, the pursuer showed fluctuations of mood. While at some times very low in mood and distressed by his father's death, at other times he would appear more cheerful. He was unable to explain, or would deny, attempts at self-harm.

[21] According to a report (6/39 of process) prepared for medical legal purposes by the consultant - the RMO - in charge of the pursuer, Dr Martin Turner, at a ward interview on 13 November 2000 the pursuer's mother described to the staff a four week change of behaviour following a blow to the head at work. A CT head scan was arranged but it disclosed no abnormality. Dr Turner's report goes on to say that despite that negative result, the pursuer's presentation "was not that of a straightforward depression but that of a depressive component added on to the impulsivity and erratic behaviour seen in organic head injuries". The pursuer's mood fluctuated and on occasions he could be aggressive towards the staff and other patients. On occasions he absconded and when returned by the police could be aggressive towards them. Dr Turner requested, in December 2000, a functioning brain image scan - a SPECT scan - and received a report of that scan on 8 January 2001. The report stated that the scan showed "a reduction in perfusion which localised to part of the right frontal area consistent with the site of his earlier head injury in October 2000". As I understand both his report and his evidence, Dr Turner regarded the result of the SPECT scan, while not diagnostic, as being supportive of the view that the pursuer had suffered an organic brain injury. In a letter of 3 October 2001 (6/10(b) page 76) Dr Turner described the scan as confirming a picture of behaviour patterns brought about by head injury.

[22] Although at the time of giving evidence Dr Turner accepted that the accident on 25 October 2000 had been a very minor one, not involving loss of consciousness, it is not clear that at the time of forming the opinion that the pursuer had suffered an acquired brain injury Dr Turner was fully aware of the circumstances of the accident. In particular, he appears to have understood the pursuer to have been rendered unconscious. Thus, in a letter written in July 2001 (6/11) Dr Turner appears to have been of the understanding that the accident involved the pursuer walking into an iron girder and being knocked out. At all events, Dr Turner having come to the view, that the pursuer had sustained an organic brain injury, the pursuer was referred to Profession McMillan, Professor of Clinical Neuropsychology at Glasgow University, at his clinic at Gartnavel Royal Hospital on the understanding that the pursuer "had a traumatic brain injury at work". The pursuer subsequently attended various courses or treatments directed towards the improvement of the condition of those with organic brain injury, such as Scotcare, RehabScotland and others. The pursuer was of course made aware of the change in Dr Turner's view of his condition and I am in no doubt that he and family members now firmly believe that he suffers from an organic brain injury traumatically induced by the pursuer's contact with the tilt bar.

The specialist evidence
[23] In addressing the central issue whether the difficulties which the pursuer has suffered are the result of an organic brain injury sustained in consequence of the pursuer's forehead coming into contact with the tilt bar on 25 October 2000 parties led evidence from specialists in three fields, viz: (i) neurosurgery and neurology; (ii) neuropsychology; and (iii) psychiatry. What follows is not an attempt to narrate fully every aspect of the evidence given by the respective specialists but is an endeavour to summarise the salient features and the standpoints adopted by them respectively.

(a) Witnesses tendered by counsel for the pursuer
[24] Dr Turner was the first medical witness called by counsel for the pursuer. Dr Turner is, of course, a consultant psychiatrist and, as already indicated, while under his overall care, the pursuer was initially diagnosed with and treated for depression. What then influenced Dr Turner in favour of the possible existence of an organic brain injury, after his being alerted to an accident having occurred, it was said, four weeks previously by the interview on the ward with the pursuer's mother on 13 November 2000, was that the pursuer showed fluctuations of mood and erratic impulsive behaviour which he did not regard as standard or typical features of depressive illness. As Dr Turner put it at one point in the course of his evidence, the fluctuations in the pursuer's conditions over November/December 2000 were not consistent entirely with the diagnosis of depressive disorder and "one might be struggling to meet" the ADM criteria for depression. The pursuer's behaviour pattern was not wholly consistent, in Dr Turner's view, with a psychiatric illness. While the pursuer had presented to his general practitioner and the emergency general practitioners with an account of, and symptoms of, depression the difficulty for Dr Turner, as I understood it, was that the depressive disorder did not develop or proceed in a wholly normal fashion. The pursuer, he said, "veered off the normal trajectory". The SPECT scan had been instructed to exclude trauma and while Dr Turner agreed both that such scans were not a diagnostic technique (other than in relation to Alzheimer's Disease) and also that there were psychiatric conditions which could produce reduced perfusion, Dr Turner considered that it added weight to, or was consistent with, his assessment of the clinical picture. While for a time Dr Turner had understood the accident to have involved the pursuer's having been rendered unconscious, he confirmed that his current understanding was to the contrary and the accident had been very trivial. The probability of such a very trivial injury producing the catastrophic consequences seen in the pursuer was very low. But, some explanation had to be found. Sometimes, ventured Dr Turner, the unlikely might happen.

[25] Counsel for the pursuer also led the evidence of Mr L T Dunn, a consultant neurosurgeon at the Institute of Neurological Sciences at the Southern General Hospital, Glasgow who examined the pursuer for the purposes of this claim on 23 January 2003. Mr Dunn's report is 6/3 of process. In section 9 of his report Mr Dunn records inter alia that, at worst, the pursuer suffered a minor head injury, the minor nature of the injury being capable of being inferred from the mechanism of the injury and the absence of any loss of consciousness. (Along with other witnesses Mr Dunn noted that resort could not be had to the duration of any post-traumatic amnesia as a measure of severity because of the pursuer's psychiatric injury). In his report Mr Dunn noted the development within hours of a severe acute psychiatric illness, leading to an extended period of in-patient treatment. He found a spatial relationship between the site of the original injury and the area of hypoperfusion identified on the SPECT scan. Although in the course of his clinical practice he had never encountered the rapid onset of severe psychiatric illness within hours of a minor head injury, the extensive literature survey which he had carried out disclosed some occurrences of depressive and affective symptoms after mild injury. Mr Dunn's report concludes that on balance he favoured the explanation that the pursuer's symptoms were a consequence of the injury rather than a coincidental emergence of a psychiatric condition.

[26] In examination in chief, Mr Dunn was not invited to expand on, or to discuss, his report to any extent. In answer to questions from counsel for the defenders however Mr Dunn confirmed that in his consideration of the existence of any causal relationship between the injury (which he agreed was "pretty small" even within the category of minor injury) and the pursuer's mental condition he proceeded upon two links, viz, (i) the apparent spatial relationship between the site of the injury and the area of hypoperfusion reported on following the SPECT scan, together with the fact that there was some support in the literature for a possible link between minor injury and SPECT abnormalities; and (ii) the apparent temporal link, in that in his understanding the psychiatric features emerged only suddenly after the occurrence of the incident. But Mr Dunn agreed that if there were evidence of the preceding development of a psychiatric condition that would make a difference to his thinking. He also accepted that the changes in the SPECT scan could be explained by a pre-existing depressive illness.

[27] Mr Dunn further agreed that it would be very unusual for a minor injury such as that in question to produce cognitive deficits of the severity revealed, apparently, by tests subsequently carried out by Dr Gillham and Professor McMillan. He had come across some patients with cognitive deficits after minor head injury, but those were all instances in which there had been a loss of consciousness and were therefore more severe than in the present case. Cognitive problems caused by brain injury resulting from head injury came on pretty acutely in the immediate aftermath of the trauma and would be obvious to medical staff. To the extent that evidence of cognitive deficits emerged later, the likelihood of any causal link was diminished or excluded.

[28] Professor McMillan was also led as a witness by counsel for the pursuer. Professor McMillan had seen the pursuer previously at Gartnavel Royal Hospital in March 2002 and February 2003 (cf 7/9 p.60, 45) simply in connection with the pursuer's possible rehabilitation needs. He saw the pursuer for medical legal purposes only on Saturday 7 January 2006, three days before he gave evidence at the first continued diet of proof in this case. By that time the pursuer had given his own evidence, as had the members of his family, at the initial diet.

[29] On that Saturday Professor McMillan carried out a neuropsychological assessment of the pursuer involving a number of tests of his cognitive abilities, details of the results of which are contained in the professor's report (no.6/43 of process). Put shortly Professor McMillan considered the results to indicate severe cognitive deficits, which were unlikely to be explained by any depressive illness. Together with aspects of the pursuer's reported current behaviour - such as difficulty in controlling temper, disinhibition of language, reduced drive and difficulty in sustaining effort - these deficits were consistent only with the effects of severe traumatic brain injury. But this would not usually be expected from a relatively minor blow to the head where there was no loss of consciousness. The conclusion expressed by Professor McMillan in his report is that the pursuer sustained a severe brain injury at the time of the accident which also caused a depressive illness. In his oral evidence in chief Professor McMillan broadly repeated the view that the pursuer had sustained a severe traumatic brain injury, but he also suffered from depression and associated anxiety.

[30] In the course of cross examination by counsel for the defenders Professor McMillan stated inter alia that it was a rare event that such a minor injury as that suffered by the pursuer could lead to serious effects. Professor McMillan stated that he had had professional experience of a small number of such cases - more than one or two but less than ten - and, on being pressed by counsel, accepted that of those at least some did involve loss of consciousness. Professor McMillan agreed that if the cognitive deficits subsequently demonstrated in his tests and the tests of others such as Dr Gillham were the result of organic brain injury they should have shown up straightaway, with any reactive depression or other behavioural features following later. Were the cognitive deficits of the kind which he had noted not to emerge until, say, February 2001 or later, they could not be attributable to the very minor injury sustained in October 2000. Professor McMillan also stated that he was strongly swayed by the temporal proximity of the accident and the apparent onset of the psychological disorder and that evidence of a prior developing disorder might make a difference to his view.

[31] The first specialist adduced by counsel for the defenders was Dr Dereck Chiswick, a consultant forensic psychiatrist with the Royal Edinburgh Hospital and Honorary Senior Clinical lecturer in psychiatry at Edinburgh University. Dr Chiswick saw and examined the pursuer in April 2004 and when compiling his report (no. 7/11 of process) had access to most of the pertinent documents, all as listed in his report. In the preamble to his opinion Dr Chiswick places weight on the history given to the pursuer's GP, Dr Jamieson, on 27 October 2000 and the assessment by Dr Math on the same date which included a history of mental symptoms prior to the accident on 25 October 2000. Dr Chiswick also places weight on the fact that in July and in early August 2000 the pursuer had consulted his GP about a familial condition - haemochromatosis - which was worrying him. Dr Chiswick observes that anxiety about health and preoccupation with the death of a loved one are common features in depressive disorders. At the time of the assessment on 27 October 2000 the pursuer had a girlfriend but he was concerned that she might be having an affair with another. Relationship problems, particularly a loss, or a fear of a loss, are, observes Dr Chiswick, common precipitants for depressive symptoms. Having reviewed the Stobhill Hospital notes, including, in particular, the nursing notes, for the period between October 2000 and the report of the SPECT scan, Dr Chiswick expresses the view that the clinical features were in keeping with the original conclusion, on the pursuer's admission, of a depressive disorder. According to Dr Chiswick, the clinical picture of frequent acts and threats of self-harm is typical of that seen in patients with instability of mood and situational problems and is not inconsistent with the primary diagnosis of depression.

[32] From the point of view of the management of the pursuer's case, a notable turning point came when the SPECT scan was carried out and its results were reported by Dr Turner to the pursuer in terms which were to the effect that organic brain injury sustained in the accident was the cause of his difficulties. In Dr Chiswick's view, Dr Turner's explanation was psychologically acceptable to the pursuer for, among others, two important reasons, namely: (i) it made others responsible for his mental condition; and (ii) it helped him deal with his difficulty of being a psychiatric patient and allowed him to believe that he was different from the other psychiatric patients. Dr Chiswick considered that since that time the pursuer had clung tenaciously to the belief that he has an acquired brain injury and that the pursuer had a very strong "emotional investment" in that belief.

[33] Dr Chiswick observes that there is within the in-patient records barely any reference to any possible cognitive disorder until February 2001 when, for a short period, the pursuer had confusion and misperception. If the accident in October 2000 had caused brain injury resulting in cognitive deficits those deficits would be apparent immediately or very shortly after the accident. The clinical features on and immediately after the pursuer's consultation with his GP and admission to hospital were not at all in keeping with the features of acquired brain injury. The much more probable diagnosis was, correctly, depressive disorder, the blow to the pursuer's forehead being essentially coincidental and irrelevant.

[34] Although he considered the pursuer to be suffering from depression in October 2000 and for some time thereafter, Dr Chiswick did not consider the pursuer to be suffering from a significant depressive disorder in April 2004, or at the time of the proof. As I understood Dr Chiswick's oral evidence it was to the broad effect that the pursuer, having been given to believe that he had suffered an acquired brain injury and having been sent for repeated courses of treatment for those who had suffered organic brain injury, a chain of events occurred which was "unstoppable". The pursuer became, and remains, very dependent on the daily support of family members who treat him as having a brain injury and he has developed an emotional need for such dependence. The pursuer has done extensive cognitive testing to the extent that he is able to produce gross cognitive defects; and there were aspects of financial gain through being the sufferer of a brain injury. Dr Chiswick did not maintain or suggest that the pursuer was wilfully seeking to present a false account to him, or other professional witnesses, or to the Court. Although Dr Chiswick had some doubts as to precisely how one might categorise a situation from which the pursuer was currently suffering, he thought that the pursuer was stuck in a way of life in which everyone treated him as being disabled, and needing support, from which it had become psychologically very difficult, if not impossible, for the pursuer to escape.

[35] The second expert led by counsel for the defenders was Dr Ruth A Gillham, a consultant neuropsychologist in the Institute of Neurological Sciences at the Southern General Hospital, Glasgow. Dr Gillham saw the pursuer for medical legal purposes on 28 March 2002. Her report of that interview and assessment is No.6/5 of process. The information available to her from other documentary sources is recorded in the report; it did not include the Stobhill records. Dr Gillham interviewed both the pursuer and his mother. She then carried out psychometric tests, some of the tests being the same as, or similar to, the tests administered in January 2006 by Professor McMillan. The results are described in the report and, put shortly, produced a very poor outcome. In her report Dr Gillham expresses her belief that the deficits indicated by the formal testing were the result more of the pursuer's mood and a belief held by him that he is not able to perform, rather than any structural brain damage. In her opinion, such a minor head injury as that sustained by the pursuer could not have produced long term neuropsychological deficits and the pursuer's apparent poor functioning was a secondary consequence of his psychiatric illness.

[36] In her oral evidence, Dr Gillham expressed herself in perhaps more emphatic terms than those which she had employed in her written report. On testing, the pursuer was not trying to do his best. She accepted that he was probably still depressed at the time and depression could flatten the results of tests for cognitive ability because a person suffering from depression may give up more readily. The very poor results would indicate either someone who had sustained very severe brain injury or someone who was simply not trying. By way of example, in terms of brain injury, the very low score on the National Adult Reading Test could only be explained by a penetrating focal injury into the skull behind the left ear. The only alternative explanation was principally lack of effort although, in light of Professor McMillan's report, Dr Gillham accepted there might be some mild pre-existing dyslexia.

[37] Dr Gillham agreed that if one looked to the severe cognitive deficits demonstrated on the tests conducted by Professor McMillan one could readily say them to be consistent with brain injury. But it would have to be a very severe injury, such as results from deceleration injury in, say, a road traffic accident producing either diffuse axonal injury or a space occupying haematoma. Neither was possible in the circumstances of the present case in which the pursuer was simply getting up and banged his head. That could not produce sufficient force to result in the former - diffuse axonal injury - and the latter would have produced very rapid deterioration, and death, if not treated.

[38] While at the time at which she saw and assessed the pursuer Dr Gillham believed him still to be suffering from a depressive disorder unrelated to the accident on 25 October 2000, in the light of later medical reports which she had seen Dr Gillham thought him to be less depressed. However she thought that the pursuer now firmly believed that he had structural brain damage and that he had been educated into the deficits resulting from such damage. He believed that he has those deficits and the family circumstances have provided him with care and attention and supported him in that belief. Dr Gillham thought it now to be extremely difficult for the pursuer to escape from that belief and those circumstances. She regarded him as being disabled but due to psychological factors, not any organic brain injury.

[39] The final medical witness was Professor Ian Bone, a consultant neurologist in the Institute of Neurological Sciences at the Southern General Hospital. He saw the pursuer for medical legal purposes in February 2002. A mini-mental status examination was conducted in which the pursuer completed all tests except one without great difficulty, albeit slowly, and physical examination was unremarkable. In his report (6/4 of process) Professor Bone observed that the pursuer's presentation of a psychiatric illness within hours of a minor injury was unknown to him and a review of the literature provided no explanation.

[40] Professor Bone did not agree with the view that the pursuer might have suffered an organic brain injury. He was unable to see any mechanism which would result in any such organic injury. In other words, he could not conceive biologically what could happen - in this accident - to produce the claimed abnormality. It was not possible pathologically to see what could have happened. Moreover, a minor head injury of the kind described would not trigger the pursuer's psychiatric presentation. He had never seen a head injury producing this psychiatric presentation. Nor was there anything in the literature to support such a possibility. A Danish study of 8,200 patients admitted with schizophrenia or other psychosis had looked for head injury as a predisposer but found that head injury did not lead to psychosis.

[41] As respects SPECT scans, Professor Bone testified that they had only two clinical uses, namely in cases of epilepsy and dementia. He had been personally involved in the development of SPECT scans; had done a lot of interpretation of scans at the start of their use; and had written about them in the professional literature. The pursuer's scan (no. 6/40 of process) showed nothing specific and nothing diagnostic. It was not a test which he would advise or perform in a case such as the pursuer's since it simply would not give any useful information. While figure 20 on the scan (no. 6/40 of process) might possibly be an abnormality, it could also simply be that the section crossed a fold in the brain.

[42] With that summary of the specialist witness evidence, I find it convenient, before turning to the submissions made by counsel respecting the expert medical evidence, first to deal with two matters which in many respects are factual issues but are important in the assessment of the expert evidence. These are first, the evidence respecting whether at the time of the accident the pursuer was undergoing the concurrent development of a depressive illness. The second area is the evidence relating to the pursuer's cognitive status in the initial months after the accident.

Concurrent depressive illness
[43] In my view it is clear from the evidence of Dr Jamieson, which I accept, that when the pursuer consulted him on the morning of Friday 27 October 2000 the pursuer gave to Dr Jamieson a history of being depressed for two months. The pursuer also gave a history of symptoms and concerns consistent with his being thus depressed. He also appeared to Dr Jamieson in terms of mood to be depressed. Dr Jamieson diagnosed him as suffering from depression. A similar account of being depressed over the preceding weeks was given later that day by the pursuer to Dr Math at the Larkfield Centre. Dr Math also noted in the pursuer's actual presentation features indicative of a depressive disorder and diagnosed the pursuer as suffering from depression. In his submissions counsel for the defenders pointed to what he said was an inaccuracy in Dr Math's note of previous medical history in its making reference to a road traffic accident in 1984. However it does not appear to me that such an inaccuracy (assuming it to be so) renders Dr Math's evidence otherwise in any way unreliable.

[44] It has also to be borne in mind that on attending Dr Jamieson and when seen by Dr Math the pursuer was accompanied by his girlfriend. As already mentioned, Dr Jamieson said he was "almost certain" that the girlfriend was present and gave no contradictory information; and although Dr Math was uncertain whether the girlfriend was present throughout the interview, or whether she spoke with her separately at the end, Dr Math was clear in her evidence that she wished, sought and obtained corroboration, including corroboration of the duration of the symptoms of depression from the pursuer's girlfriend. Although one should be cautious about attaching great significance to a single word, Dr Math's note that the girlfriend was happy that the pursuer had "finally" come to see a psychiatrist is certainly consistent with the pursuer having been ill for some time and of his girlfriend being aware of it.

[45] In addition there is the evidence of Dr Howat to which reference has already been made. The pursuer gave to Dr Howat on 28 October 2000 a similar account of being depressed for several weeks; of thinking about his father; and of worrying about girlfriend problems. Independently of the pursuer's account, Dr Howat's evidence, which I accept, was to the effect that he was also given to understand by members of the family present in the house that the pursuer had been unwell for several weeks. In addition, there is the note contained within the hospital records of an account in similar terms and a similar presentation to the community psychiatric nurses on Sunday 29 October 2000. Moreover there are various other isolated adminicles supportive of depression, such as the evidence of the pursuer's brother Liam that on 25 October 2000, or the early hours of 26 October 2000, the pursuer was crying over the death of his father, which was seen by most of the experts as being entirely consistent with a depressive disorder, and which was universally agreed could not be the result of a minor traumatic episode some hours previously.

[46] On the other hand, while not, I think, disputing that the pursuer had given an account to Dr Jamieson of being depressed for some weeks prior to 27 October 2000, counsel for the pursuer sought to challenge the accuracy of that account and to displace the foregoing body of factual medical evidence of a developing depressive disorder by relying on evidence adduced by him from members of the family and two of the pursuer's workmates to the effect that prior to the accident the pursuer was functioning happily and normally.

[47] It is indeed the case that in general terms those witnesses described the pursuer in that fashion. In more detail, of the family witnesses, Mrs Rodgers stated in her evidence that she had not noticed her son being depressed prior to the accident and on the morning of the day of the accident when he brought his dog down to her he seemed as usual. Mrs Rodgers could not recollect her son having said anything to her about not sleeping or eating. Mr Liam Rodgers said that prior to the accident the pursuer was outgoing, liked cycling, did karate and liked to go out with his mates. The pursuer's brother John said in evidence that prior to the accident the pursuer was "happy go lucky"; he went to aikido; did some cycling; and socialised with women. Michael Rodgers described his brother as being a "life and soul of the party" type; a hard worker who liked to enjoy himself. The pursuer did not appear to him to be depressed and had not said anything to him about not sleeping or eating well. Paul Rodgers described the pursuer as a basically normal young man who did not seem depressed. And the pursuer's uncle, John, described him as a normal, red blooded, young man.

[48] Of the witnesses who had been fellow employees, Robert MacDonald deponed that in the week before the accident the pursuer seemed normal. His recollection was that he ate well, always bringing in to work pieces and fruit. However in cross examination he stated that he did not sit with the pursuer at the same table in the canteen and usually read his newspaper. Richard Palmer had worked with the pursuer at an earlier stage in his career. He described the pursuer as not being different on his return to work with the defenders within the week preceding the accident from how he had known him previously. He remembered that the pursuer had a big piece box and that on the pursuer's first day back he and the pursuer got into trouble for chatting too much and not getting on with their work. James Barrat simply said that when the pursuer returned to work again with the defenders he seemed fine.

[49] According to the submission of counsel for the pursuer it was to be inferred from the evidence which I have just narrated in summary that the pursuer could not have been suffering from any depressive disorder, or any incipient such disorder, prior to the accident on 25 October 2000 because, on that evidence, the pursuer had been functioning normally and happily and had not exhibited any signs of depression. The consequence was that there was a sharp, clear temporal link between the occurrence of the accident and the onset of the pursuer's illness. There was thus a strong argument post hoc ergo propter hoc which in turn invited the only conclusion of the sustaining of some form of brain injury, since all of the medical witnesses accepted that the accident could not produce the sudden and immediate development of severe depression.

[50] Underlying that submission is the assumption that the onset of depressive illness will necessarily be readily apparently even to those of passing contact in the context of work or family relationships. On the question of the extent to which a developing depressive disorder will be apparent, Dr Turner expressed the view that it was difficult to mask depression and it would be unusual to find someone with depression who was able to change jobs. Dr Chiswick readily accepted that evidence that the subject had been attending work; appeared to be eating normally; and to be generally happy or normal would not favour a diagnosis of depression. However, he went on to say that in his experience many people with developing depression can "cover it up and get on with it". Usually people developing depressive disorder carry on for some time before giving up work. Dr Chiswick went on to observe that work colleagues were not the best people to judge signs of emerging depression. Those best placed were the person or persons with whom the subject shared daily living. Dr Gillham was to broadly similar effect. In her experience one commonly encountered people with developing depressive disorders who were able to hold things together until something, often trivial, happened, such as a cold or domestic plumbing problem, following which the depressive disorder became acute and much more manifest to more people. Insofar as there may be a conflict between Dr Turner and Drs Chiswick and Gillham I prefer the evidence of the latter two. In particular it seems to me that in the evaluation of the weight to be attached to lay observations it is important to have regard to the extent of contact between the observer and the subject. I therefore turn to that topic.

[51] Prior to the accident the pursuer lived on his own and the extent to which the various family members had contact with him varied. Moreover, the questions asked of them by counsel for the pursuer regarding the pursuer's personality or lifestyle prior to the accident were often couched in the wide terms, without particular or focus on contact or observation in the 6-8 weeks immediately preceding the accident.

[52] Mrs Rodgers had the most frequent contact in that she normally saw the pursuer briefly each workday morning and evening when he delivered or collected his dog. When asked about the account given by the pursuer to Dr Jamieson on 27 October 2000 she said that she did not know about this - "Brian lived alone". Liam Rodgers said that he saw the pursuer "off and on" and, perhaps as an indicator of his relationship to the pursuer, his evidence was that he did not know the girlfriend Jennifer or for how long she and the pursuer had been seeing each other. The pursuer's brother John was more precise respecting the number of occasions upon which he might have seen the pursuer in the two months prior to the accident and indicated perhaps six to eight occasions when he might have called round at the pursuer's house. Michael Rodgers stated that he would see all of his brothers once or twice per week; but he did not socialise with the pursuer. Michael thought he might have met the girlfriend on one occasion but he did not know her name, nor for how long the relationship had been ongoing, nor indeed how frequently the pursuer was seeing his girlfriend. Paul Rodgers said that he saw the pursuer three or four times per week - that is to say more frequently than his other brothers - but again Paul said he had never met the pursuer's girlfriend. Moreover, he stated in cross examination that he would never expect the pursuer to discuss with him any worries which the pursuer might have had over the death of his father or whether his girlfriend was "two-timing" him. Finally, Uncle John's contact was described in the vaguest of terms - "perhaps once a week or once a month". The transitory contact between the pursuer and his fellow employees during the three days preceding the accident has already been indicated. I would only comment that it was not suggested that they were working as a team.

[53] I also have to say that it was my impression that the members of the family, like the pursuer, have persuaded themselves fully - and perhaps understandably - that the pursuer suffers from a brain injury acquired on 25 October 2000 and that persuasion has led to an unwillingness or inability on their part to accept the contemporaneously noted statements - such as the note of what was said by Mrs Rodgers to the CPN on 29 October - inconsistent with the view that there was any problem or difficulty in the pursuer's mental or emotional state prior to 25 October.

[54] Counsel for the defenders submitted that when properly analysed the evidence of the family members and the fellow employees was lacking in any sufficient weight to displace to any material extent the evidence from the pursuer's own GP and the emergency service GP, Dr Howat, and Dr Math and the inference therefrom that the pursuer was suffering from a developing depressive disorder prior to the occurrence of the accident. Given the consistency of the account provided to those medical witnesses, the corroboration afforded by the presence and interview of the girlfriend and, in the case of Dr Howat, certain family members and, on analysis of the evidence, the limited contact between the pursuer and the family members over the crucial period I consider that this submission is well founded. It may also be noted that as counsel pointed out the girlfriend had a significant part in the pursuer's life since it was the pursuer's girlfriend who took the initiative in seeking a GP appointment; who accompanied the pursuer to the GP and the Larkfield Centre on Friday 27 October 2000; and who reported his attempt at self harm on 7 November 2000.

[55] I would add that in the course of the proof, and in his closing submissions, counsel for the pursuer invoked the possibility that, in giving the history to Dr Jamieson which he gave, the pursuer was "talking nonsense". This was indeed the only explanation offered by the pursuer, that explanation being no doubt consistent with his view that he had suffered a serious brain injury. However, as was observed by inter alios Dr Gillham, not only did the pursuer give, on several occasions, an account of depression confirmed by his girlfriend or members of the family but, importantly, he described symptoms which were indeed classic symptoms of a depressive disorder. Crying over the premature death of one's father, hiding under a bed in that context and concerns over the possible loss of a girlfriend were not signs of confusion or disorder but were indicators of the very depressive disorder of which the pursuer complained. To describe oneself as having been depressed and to have suffered from the symptoms or indicators of depression does not in any way fit with an assertion of "talking nonsense". I therefore am unable to accept the pursuer's evidence of that account of "talking nonsense", and the submission based upon it.

Cognitive defects
[56] It is clear that the neuropsychological tests carried out by Professor McMillan and Dr Gillham indicated - on the face of matters - that the pursuer had very serious cognitive deficits at the time at which he sat those tests. It was generally accepted by the medical witnesses (other than Dr Turner) that if such cognitive deficits were the result of an acquired brain injury their existence should be manifest very shortly after the traumatic incident causing the injury. It is therefore appropriate to consider the contemporaneous evidence respecting the pursuer's cognitive abilities in the period following the accident.

[57] In the course of her examination of the pursuer on 27 October 2000 Dr Math carried out basic testing of the pursuer's cognitive abilities. She found him to be oriented and able to perform such tasks satisfactorily. He was, for example, able to spell the word "world" backwards. When admitted to hospital on 7 November 2000 further - admittedly basic - tests of the pursuer's cognitive ability were carried out by a Dr Holdsworth, the results being noted in the hospital records at 7/8 of process, p.28. It appears that - as Dr Turner put it - there was a good deal of cognitive function. For example, the pursuer was able to do "serial 7s" [the exercise, in mental arithmetic, of successively, or serially, subtracting 7 from the initial given number and the product of each subtraction] and to remember accurately a fictional name and address. Subsequent updates to the initial multi-disciplinary forms all record under the heading "cognitive function" that the pursuer had no obvious or evident impairment (see e.g. no.7/8 p.85, 90).

[58] For the purposes of his report, Dr Chiswick conducted a close study of the Stobhill Hospital records, including in particular the nursing notes which, said Dr Chiswick, can be valuable since nurses are in close contact with the patient on a daily basis. Dr Chiswick observes that prior to February 2001 there is barely a reference suggestive of any cognitive impairment. The nursing notes indicate that the pursuer was able to initiate telephone conversations with various people, to play pool, and on one occasion to devise and execute a plan for bringing, under concealment, a length of washing line into the hospital. Between 8 and 14 February 2001 there was an episode of confusion and misperception, probably caused by a change in the regime respecting the pursuer's drugs. Further, as Dr Chiswick indicated in his evidence, the pursuer's ability in the days ensuing after the accident to give consistent accounts to doctors of his depressive illness and to answer consistently and appropriately questions relating to his symptoms does not square with the pursuer having any cognitive deficit at that time.

[59] Accordingly, while the contemporaneous observations recorded in the medical records might not wholly exclude the possibility of the pursuer's having had some minor degree of cognitive deficit, it is apparent from them that there is no positive evidence that the pursuer suffered from any significant cognitive development at all until, at the earliest, February 2001 when there was a brief period of confusion and misperception, probably better explained by a change in the drug regime.

Submissions on the expert evidence
[60] Counsel for the defenders submitted that no real support for the proposition - essential to the pursuer's case - that the accident resulted in an acquired brain injury was to be found in the evidence of Mr Dunn. If anything, the converse was the case. In cross examination Mr Dunn had readily accepted that it would be highly unusual to have significant cognitive deficits from such a minor injury. In Mr Dunn's experience such deficits were always the result of a more serious injury, involving loss of consciousness. It was evident from the terms of section 9 of his report that Mr Dunn had always entertained doubts about causation in this case. He had opted for a link because of what he believed to be the coincidence of the temporal onset of symptoms and the spatial link suggested by the SPECT scan. In cross examination however Mr Dunn had accepted that if either link could be otherwise explained that would make a difference. As respects the spatial link, Mr Dunn accepted that the SPECT scan was of no diagnostic assistance and that such changes as were shown on the scan could equally be explained by a prior depressive illness. On the temporal link, Mr Dunn also agreed that if there were a developing psychiatric condition prior to the accident that would make a difference to the thinking which he had expressed in his report. If anything, Mr Dunn gave support to the defenders' position, which was not dependent upon the existence of a depressive illness, in that he readily accepted the improbability of any causal link between such a minor incident and any organic brain injury.

[61] Counsel for the defenders invited rejection of the evidence of Dr Turner insofar as it was directed to the pursuer's having acquired an organic brain injury. Although a skilled psychiatrist, Dr Turner was not a specialist in head injury. In attributing the significant cognitive difficulties which emerged on later psychometric testing to the brain injury at the time of the accident, Dr Turner proceeded on the view that such cognitive difficulties, caused by organic insult, would not necessarily be evident shortly after the incident but might develop much later. Since the other expert witnesses, particularly Mr Dunn and Professor McMillan, were clear that any such cognitive deficits would emerge acutely or quickly, Dr Turner was thus proceeding on a basis not shared by any other of the medical witnesses, including in particular the witnesses with particular knowledge of head injury. On the other hand Dr Turner did agree that it would be highly unusual for such a minor blow to produce any brain injury. Until the SPECT scan he had - in counsel's submission correctly - been treating the pursuer for a depressive disorder. The essence of Dr Turner's approach was that there were features of the pursuer's behaviour in the aftermath of the accident which he thought were atypical of a psychiatric injury but might be explained by brain injury. (However neither Dr Chiswick nor Dr Gillham agreed with that view). Having received the result of the SPECT scan Dr Turner had proceeded on the view that it indicated trauma although others, particularly Mr Dunn and Professor McMillan, accepted that such changes as the scan might indicate could also be explained by depressive disorder. Moreover, while Dr Turner now accepted the triviality of the incident on 25 October 2000 in terms of trauma, it appeared that he had proceeded at an earlier stage, including the stage at which he decided that the acquired brain injury might be a diagnosis, that the accident had been much more serious, involving loss of consciousness.

[62] In the course of his submissions respecting the evidence of Professor McMillan, counsel for the defenders noted that on any view Professor McMillan accepted that it would be a very rare event for such a minor injury as occurred in this case to create such serious effects as appeared on his subsequent testing. Although the professor said that he some experience of minor injury producing serious effects, his evidence on that matter was, said counsel, "woolly", the number of cases being described as more than one or two, but less than ten. And of those it appeared on subsequent questioning that some involved loss of consciousness. The mainstay of Professor McMillan's approach was the tests administered by him on 7 January 2006. The severity of the deficits prima facie indicated by the test results was seen by him as being unlikely to be the result of depression. However, said counsel, Professor McMillan did not make any allowance for lack of effort on the pursuer's part or for his having been accustomed to carrying out such tests and being able to produce the results consistent with his view of his situation; whereas Dr Chiswick and Dr Gillham provided an explanation in the pursuer's psychological state and the fact that having done those or similar tests a number of times the pursuer would know how to produce results consistent with brain injury. But a major weakness in Professor McMillan's evidence was that he came to the case very late, having seen the pursuer only on the Saturday preceding his giving evidence and without having had an opportunity to consider all the material. In particular Professor McMillan had not been able to review the Stobhill Hospital notes and when asked about matters in them gave only guarded answers, consistent with that inability and lack of opportunity.

[63] As respects the expert witnesses led for the defenders, counsel for the pursuer advanced certain criticisms of the tone and demeanour in which they gave evidence. Dr Chiswick's evidence was unusual in that he was, said counsel, unwilling to answer certain questions. Counsel for the pursuer submitted that Dr Chiswick had shown some hostility towards the pursuer. Of Dr Gillham it was submitted that she had appeared dogmatic. She had been wrong in maintaining that if her colleague Professor McMillan had had all the information which she had, the professor would have shared her conclusion since, said counsel, the professor did have that information available. However, as I understood the submission of counsel for the pursuer, the principal contention respecting the evidence of the expert witnesses for the defenders was that their evidence depended on the presence of a developing depression which, in accordance with the submission which I have earlier narrated, was displaced entirely by the evidence of the family members and the pursuer's work colleagues.

Discussion
[64] In my opinion there is considerable force in the critique advanced by counsel for the defenders of the expert evidence led on behalf of the pursuer and I am in general agreement with those criticisms.

[65] As was observed by counsel for the defenders in the course of his submission, the starting point must be that all the medical witnesses accepted that the accident itself was very minor indeed and that it would be highly unlikely that such a minor blow would result in any organic injury to the brain. Indeed, Professor Bone, upon whose evidence counsel for the defenders placed particular stress, could not see any mechanism in which, pathologically, the claimed brain injury could occur. In other words, at best for the case of the pursuer, one is dealing with an injury - namely an organic brain injury - which is very improbable.

[66] As counsel for the pursuer made clear in his submissions, the argument advanced on behalf of the pursuer for a causal link, notwithstanding that improbability, proceeds first on the suggested temporal link. Both Mr Dunn and Professor McMillan said that they attached much importance to the temporal proximity of the accident and the onset of the apparent psychological disorder. But in cross examination they also said that it would make a difference to their respective thinkings were there to be evidence of a developing psychiatric or psychological disorder. For the reasons already given I consider that the contemporaneous medical evidence points strongly, if not irresistibly, to such a developing disorder and I am satisfied on the balance of probability that the pursuer was, very unfortunately, developing a depressive disorder prior to the occurrence of the incident on 25 October 2000. So the claimed temporal link appears to me to be unsound.

[67] The medical legal experts for the pursuer also placed weight on what counsel for the pursuer - and Mr Dunn - termed the spatial link between the site of the cut sustained on 25 October 2000 and the area of possible abnormality of perfusion shown in the SPECT scan. However, as the evidence developed during the course of the proof, that link became very tenuous. First, it was accepted by the witnesses that a SPECT scan is not a diagnostic tool in this context and furthermore that interpretation of the results of the scan is very difficult. Secondly, it is also accepted that the believed abnormality was not consistent only with organic injury but could be explained by the existence of a depressive disorder in the months preceding the scan. Insofar as there may be differences in testimony concerning SPECT scans I prefer the evidence of Professor Bone whose knowledge of and experience with SPECT scans is greater than that of the other witnesses. As already indicated, Professor Bone considered that no assistance was provided by the SPECT scan, and indeed he questioned whether what was said to be an abnormality was in fact possibly a fold in the brain.

[68] With the exception of Dr Turner, all of the medical witnesses agreed that if the pursuer had sustained a traumatic brain injury producing significant cognitive defects, those defects would have developed acutely, i.e. shortly after the trauma. Professor McMillan, having agreed with that proposition, recognised and accepted that if the cognitive defects were not present for some time after the incident he would require to reconsider his position. I have already discussed the evidence relating to the presence of cognitive defects in the immediate period following the accident. There is no evidence that in the three months or so following the accident the pursuer had any significant cognitive defects. I accept that during that period the pursuer did not undergo neuropsychological testing such as that carried out by Professor McMillan, but the pursuer was under in-patient psychiatric care. As was pointed out by Dr Chiswick, whose evidence on this matter I accept, not only is there no record of any significant impairment but the recorded activities indicate substantial, if not unimpaired, cognitive functioning. It is no doubt the case that the tests carried out by Dr Gillham and Professor McMillan give results indicating the presence of significant cognitive defects. However, in their evidence Dr Gillham and also Dr Chiswick provide explanations for this in terms of lack of effort, familiarity and a concern to produce a result to which the pursuer has become psychologically thirled. In light of the whole evidence I accept their evidence (and in doing so reject the criticism of counsel for the pursuer respecting the mode or tenor of the evidence in which Drs Chiswick and Gillham gave evidence, which did not accord in any way with my impression of those witnesses).

Decision
[69] It was, I think, accepted by all of the medical witnesses who gave evidence that the pursuer's case is a complicated one and that on whatever view one might take of matters, there are some features which may not be immediately and readily open to explanation. However, the claim made against the defenders depends upon the pursuer establishing on the balance of probabilities that the deficits and difficulties from which he has undoubtedly suffered are the result of his having acquired an organic brain injury by reason of the accident on 25 October 2000. While one naturally has sympathy for the pursuer and his family members respecting his and their difficulties, I have to decide the case on the evidence and having considered the evidence carefully, I have to say that for the reasons previously indicated I am unable to hold it established that on a balance of probabilities the blow which the pursuer suffered to his head on 25 October 2000 led to his sustaining an organic injury of the brain.

[70] In these circumstances my requirement is to assess damages for the very minor injury which the pursuer suffered on that date. Counsel for the pursuer suggested a figure of some thousands of pounds. I am unable to agree with that view of matters. Counsel for the defenders invited, subject to contributory negligence, the invitation of a decree of payment of damages of £500 with interest thereon at the rate of 8% per annum from the date of the accident. The precise assessment of an award of damages for the very minor insignificant incident in respect of which I am invited to make an assessment is a matter upon which little help is to be derived from the cases reported in the law reports, since they are all concerned with serious injury. Viewing matters as a "simple dunt on the head", which in all likelihood would not have resulted in any claim at all, I think that the figure suggested by counsel for the defenders is reasonable and I shall therefore pronounce decree for 80% of that sum, with interest from 25 October 2000 at 8% per annum.