Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2006] CSOH NUMBER132
	OPINION OF M G THOMSON, QC Sitting as a Temporary Judge   in the cause   SINEAD GRACE DODDS (A.P.)   Pursuer;   against   BARON DAVIDSON OF GLEN CLOVATHE RIGHT HONOURABLE DR LYNDA CLARK, QC, MP, THE ADVOCATE GENERAL FOR SCOTLAND AS REPRESENTING THE MINISTRY OF DEFENCE   Defender:     ­­­­­­­­­­­­­­­­­________________

 

 

Pursuer: Di Rollo, QC, A C Forsyth; Anderson Strathern, WS

Defender: Armstrong, QC, K F Campbell; Morton Fraser

 

29 August 2006

 

Introduction

[1] In this action the pursuer seeks damages for injuries which she sustained in the course of her employment with the Ministry of Defence ("the "MOD"). She had joined the Royal Navy for 22 years, but injured her right ankle while negotiating an assault course on the 11^th day of her basic training. By the end of the Proof, substantial agreement had been reached with regards to quantum of damages. The issues for decision were whether the defender was liable to make reparation to the pursuer as a result of her accident and, if so, which of two agreed figures of damages should be awarded. There were also two outstanding objections to the admissibility of two topicchapters of evidence.

 

The established facts

[2] The pursuer was the middle of three children. Her father had left the family when she was about 21/2 years old. She and her brother and sister had been brought up by her mother. She left school at the age of 161/2 to attend college to train to become a hairdresser. Before she had become fully qualified, she worked in a hairdressing salon where latterly she was the victim of bullying by another employee. She was distressed by the bullying and left that employment in August 2000.

[3] In September 2000 the pursuer and her younger sister visited a Royal Navy Careers Office. After a brief written test and a check of the hearing and eyesight, both signed up to join the Navy.

[4] On 12 February 2001 the pursuer and her sister travelled by train to Plymouth to begin an eight week period of basic training at HMS Raleigh. On their arrival at Plymouth, the pursuer's sister changed her mind about joining the Navy and returned to her home in Scotland. The pursuer persevered.

[5] For training purposes the pursuer was placed in a group of about 28 male and female recruits known as "Cunningham". Their ages ranged from 18 to 28 or 29. The pursuer was not a particularly fit or sporting person, but between September 2000 and February 2001 she had done some swimming and running to prepare herself for this basic training. She knew from her elder brother, who had joined the Navy in 1999, that she would be tested on her swimming and running ability during basic training. It was her intention at the end of basic training to progress to become an operator mechanic which she related to her experience of using computers at school.

[6] Cunningham Group was under the charge of a petty officer, PO Carroll. It was his job generally to look after the recruits in Cunningham Group and to ensure that they arrived at the right place at the right time for instruction by other, specialist instructors. During the first week the pursuer spent some time being taught in a classroom. She also completed a 11/2 mile run and was not the last in the group. On another day she passed a swimming test which involved staying afloat for three minutes while wearing overalls. The pursuer felt that she coped well with the tasks which she was set during this first week and that she got on well with her fellow recruits.

[7] On the Thursday of the second week of basic training, the pursuer was struck on the right ankle while playing hockey in a game between Cunningham and another group of recruits. The pursuer was unable to continue to participate in the game. She did not receive medical attention, but her right ankle was swollen to the extent that she required to wear a size larger boot. On the following day, 23 February 2001, Cunningham Group was taken to the assault course.

[8] At the assault course the pursuer came under the charge of Physical Training Instructor Hodgkinson. Although the group was accompanied to the assault course by PO Carroll, it was PTI Hodgkinson and not PO Carroll who was responsible for instructing recruits such as the pursuer at the assault course. Recruits were normally taken to the assault course twice during their eight week basic training; once to be introduced to the course in week 2, and once in week 7 to perform the course in a more competitive atmosphere.

[9] The assault course consisted of a number of obstacles involving varying degrees of physical agility with the main aims of developing individual strength and stamina and co-ordination and team spirit within the group. Each obstacle had a name,. s Such as Leopard Crawl, The Pond, and The Cages.

[10] One of the obstacles was called The Ladder Drop. It consisted of a substantial, horizontal pipe with a small wooden platform fixed to its upper side. A ladder-like structure rested at an angle against the pipe on one side and afforded access to the platform on top of the pipe. The platform was 5 feet 3 inches above a landing area which consisted of pea shingle, a substance designed to absorb part of the impact of a person jumping on to it. The object of the obstacle was to climb up the ladder, stand on the platform and jump down the other side onto the pea shingle landing area. The principal risks associated with this obstacle were falling off the ladder on the one side, and sustaining injury in the course of the jump on the other side. The risks associated with the jump itself were failing to absorb the impact of landing, and thereby suffering some form of leg injury, and of falling backwards after landing and sustaining some form of head injury. The safe landing technique therefore involved flexing the knees on landing and leaning slightly forward.

[11] There was a difference between the parties as to whether, and, if so, when and where, PTI Hodgkinson had given the pursuer's group a general safety briefing before introducing them to individual obstacles. , and Tthere was also a difference between them as to whether or not PTI Hodgkinson had demonstrated the ladder jump in the sense of having performed it himself while the pursuer watched. It was not disputed, however, that PTI Hodgkinson demonstrated the jumping and landing techniques in front of the pursuer in the sense that he stood on the ground and demonstrated leaning forward and bending the knees and explained that the knees had to bendt on landing rather than before. The pursuer knew the safe jumping and landing techniques before she attempted the ladder jump.

[12] After successfully negotiating two or three obstacles, the pursuer's turn came to attempt the ladder jump. She successfully ascended the ladder, but hesitated on the platform. Her ankle was still swollen and painful from the previous day and the height of the jump was only two inches less than her own height. PO Carroll was standing on the landing side of the pipe and PTI Hodgkinson was on the ladder side. PO Carroll encouraged the pursuer to jump. Other members of the group were waiting behind the pursuer to jump after her. PO Carroll told the pursuer to do the jump however she wanted to. The pursuer jumped. She believed that she jumped and landed as she had been instructed to do by PTI Hodgkinson. She thought that she had landed safely. When she attempted to straighten up, however, she experienced severe pain in her right ankle.

[13] PTI Hodgkinson and PO Carroll carried the pursuer from the landing area and placed her on the ground to the side of the jump so that she did not obstruct other recruits who continued to use the obstacle. The pursuer had to wait approximately 20 to 255 minutes for an ambulance to come. At first the seriousness of the pursuer's injury was not appreciated and the paramedics who attended with the ambulance expected her to walk to the ambulance.

[14] The pursuer was taken by ambulance to the sick bay where a duty doctor examined her and considered that she had probably sustained a ligamentoaus injury. The pursuer waited two hours at sick bay before being taken to HM Drake, where her leg was x-rayed and a fracture was diagnosed. The pursuer was then transferred to Derriyford Hospital, but the assigned driver was off duty and left her at the hospital gates so that she was obliged to walk up the hospital drive on crutches and carrying her own x-rays. When she entered the hospital she was immediately attended by two nurses and her treatment began. On the following day the pursuer underwent open reduction and internal fixation of her ankle. She had suffered a complex intra-articular tibial plafond fracture. She was an in-patient for one week and wore a brace on her ankle for five months. On her discharge from Derriyford Hospital she was transferred to HMS  Raleigh before returning to her home near Edinburgh. The journey was distressing for the pursuer. She was taken to Plymouth Airport but then left at the main entrance to make her own way with a suitcase. Her ankle was not weight bearing at that stage. Moving about in the airport before she reached the check-in desk was difficult and distressing. She reachedflew to Bristol but had to spend the night in a hotel there before her flight from Bristol to Edinburgh.

[15] The pursuer remained in Edinburgh for three weeks. During that time she attended the orthopaedic department of the Royal Infirmary of, Edinburgh and her right ankle was x-rayed and her treatment reviewed. At the end of this period the Navy required her to return to HMS Raleigh. She did not wish to do so, but the Navy insisted and her mother encouraged her to return. She travelled by air from Edinburgh to Plymouth but there was no-one to meet her on her arrival there and she had to wait for three hours at the airport before she was collected.

[16] On her return to HMS Raleigh the pursuer spent the first weekend in sick bay. She was in the care of two male orderlies who, she felt, were unhelpful towards her. She had practical difficulties with meals and washing and showering. On the following Monday she was transferred to accommodation with other female recruits who helped to look after her. At about this time the pursuer spoke to two female recruits who had been members of a different group who had undertaken the assault course on the same day as the pursuer. They had had a different instructor (PTI). They told the pursuer that their group had been given the option of descending from the platform at the ladder jump from a sitting position on the platform, thereby reducing the practical height of the jump.

[17] The pursuer returned to Scotland for the Easter Weekend in the middle of April 2001. She travelled by train and again the journey was awkward for her because she was still using crutches. On her return to HMS Raleigh she was given appropriate physiotherapy and, towards the end of May, a psychological assessment was carried out. She was found to have suffered a significant lowering of mood since the accident and to be extremely concerned about her future both within and outside the Royal Navy. On 27 May 2001 her orthopaedic condition was reviewed and she was informed that she would be unable to resume her Navy training. The pursuer was very distressed by this news. For seven or eight weeks in June and July the pursuer was given sick leave and returned to her home. On 7 August 2001 the pursuer was medically discharged from the Royal Navy. Thereafter she continued to be treated at the Royal Infirmary of Edinburgh. She had an arthroscopy of the ankle in December 2001 when the fixation pins were removed. She then had about nine weeks of physiotherapy. Although she had no further treatment thereafter, she continued to suffer pain and discomfort in her ankle for which she required to take painkillers. Sometimes she required as many as six-eight per day but on some days only two and on other days none at all. That was still the position at the date of Proof. By that time she had not resumed employment although she would be fit for some form of sedentary or semi-sedentary occupation in the future.

[18] The pursuer's life was seriously and adversely affected as a result of the physical injury to her ankle. Her ankle is prone to swelling and she sometimes requires to wear a support bandage. She now only wears flat shoes. She no longer wears a skirt because she is self conscious about the appearance of her ankle. Her walking distance is about 15 minutes. She has difficulty climbing and deascending stairs. Although she would be physically able to drive, she has lost the confidence to do so. She put on weight. Her social life was adversely affected.

[19] At about the end of March 2001 the pursuer's consumption of alcohol increased. The extent of that increase, its duration, causes and consequences were all matters of dispute to which I shall return.

 

The objections

[20] At the end of the Proof, senior counsel for the pursuer renewed his objection to the admissibility of two topicchapters of evidence. The first objection was to any evidence to the effect that PTI Hodgkinson had demonstrated the ladder jump to the pursuer's group in the sense of having carried it out himself. Counsel submitted that the defender had no record forof such evidence. The defender had an averment (at p. 10B-C) in the following terms: "The technique for each jump was explained to the Trainees and demonstrated." Senior counsel for the defender submitted that that averment was apt to cover the evidence in question. The pursuer averred (at p. 7D-E):

"PTI Hodgkinson failed to demonstrate the jump. The Ministry of Defence noted the need for very clear instruction and practical demonstration in their investigation of the accident."

Those averments were met by a blanket denial.

[21] In my opinion the defender's averment is ambiguous and is capable of referring to either a static or a practical demonstration. The difficulty is that the word "demonstrate" is apt to cover both an instructor standing beside a particular obstacle and explaining and showing the physical positions involved while standing on the spot and doing the same thing while negotiating the obstacle. I do not think that the addition of the word "technique" in the averment makes one or other meaning more likely. The first sentence of the pursuer's averment to which I have referred illustrates that the pursuer's pleadings encountered the same difficulty. Accordingly I repel this objection.

[22] The second objection was to the admissibility of evidence to the effect that the pursuer had been told in the course of the demonstration by PTI Hodgkinson that she had the option of carrying out the ladder jump from a sitting position. Again, it was submitted that there was no record of such evidence. The defender had an averment (at p. 10C) in the following terms:

"Had a trainee, including the pursuer, wished to jump from a seated position, she would have been permitted to do so on the first run through of the assault course."

That, it was submitted, did not entitle the defender to lead evidence to the effect that the pursuer had been given the option of jumping from a sitting position. Although I allowed the question to be asked under reservation, no evidence was elicited to the effect that the pursuer had been given the option of carrying out the jump from a sitting position. PO Carroll did not mention the sitting position, although it would have been included in the general comment that the pursuer should do the jump however she wanted to. In any event, he was not the pursuer's instructor. Accordingly, I found no evidence to which this objection could apply and I repel it.

 

Merits

[23] The pursuer's case on the merits was that herfor the accident to the pursuer had been caused by the actings fault of PTI Hodgkinson. He had failed to demonstrate the ladder jump in the sense of having performed it himself, and that he ought to have instructed the pursuer's group that they had the option to jump from a sitting position which and that he should have demonstrated this alternative in the same way of having performed it himself. To the extent that PTI Hodgkinson was carrying out a teaching procedure devised and implemented by the Royal Navy, the MOD was at fault. Senior counsel for the pursuer did not submit that the MOD owed any higher duty of care to the pursuer than to any other recruit because of prior knowledge of susceptibility to physical injury as a result of the blow to her ankle while playing hockey on the previous day. That susceptibility would be relevant to quantum of damages once liability had been established.

[24] Evidence for the pursuer on this point was led from two expert witnesses. The first was Geoffrey Edmondson, a consultant in physical education, sport and play. He had considerable experience in the risk assessment of physical education generally and in relation to the training of armed services in particular. He had particular considerable experience in assessing the safety of assault courses. He gave his evidence in a clear and confident manner. That confidence was evidentclearly based on substantial, relevant experience. He had visited the scene of the accident in the company of the pursuer on 19 November 2003.

[25] Mr Edmondson emphasised the importance of giving recruits such as the pursuer a clear physical demonstration of how to negotiate each obstacle safely. That involved the instructor himself negotiating the obstacle. Jumping was an obvious hazard. Safe jumping techniques had to be demonstrated. Employers such as the MOD hads to take account of the varying ability, physical fitness and self confidence of new recruits such as the pursuer. He emphasised the need for progression. A recruit such as the pursuer should be able to practisce the landing technique from a safe height, namely one at which the risk of injury wais small, before attempting to apply the same technique to a higher jump with a correspondingly greater risk of injury. For this reason recruits such as the pursuer should have been shown how to jump from both a sitting and a standing position and PTI Hodgkinson should himself have performed both types of jump. Mr Edmondson thought that it was necessary for all recruits to attempt the jump from a sitting position before progressing to jumping from a standing position. His reasoning was that while some recruits would be able to cope safely with jumping from a standing position, others would be at significant risk of injury and an instructor such as PTI Hodgkinson could not distinguish one type from the other. There were further complicating factors. A recruit might have a latent injury or f physical weakness. Recruits might be subject to peer pressure. Some might be frightened to jump but reluctant to show that fear in front of other recruits and their instructors. Others might be inclined to throw themselves into assault course activities with little or no regard for their own safety. It was for this reason that Mr Edmondson thought that it was worth taking the extra time for all recruits to negotiate the ladder jump twice, once using each method.

[26] The second expert witness was Dr Richard Graveling, Senior Ergonomics Consultant with the Institute of Occupational Medicine. He had reviewed the relevant literature and had prepared a detailed report (6/32 of process). He identified two factors which increased the risk of injury to the pursuer; lack of prior experience in jumping from any significant height and the minor injury which she had sustained on the previous day. He explained that the risk of injury could be significantly reduced by bending the knees on impact so as to reduce the forces of impact. He also stated that demonstrating the correct technique to "break" the fall would be more effective than a verbal instruction to bend the knees. He concluded that jumping from a standing position rather than a sitting position was probably the main cauourse or factor for the pursuer's injury.

[27] Factual evidence regarding the accident was given by the pursuer, four fellow recruits who had safely negotiated the assault course on the same day as the pursuer and who had gone on to complete the basic training course, PTI Hodgkinson and PO Carroll. The pursuer's account of events was subjected to close scrutiny in cross-examination. I found her to be credible on the circumstances of the accident, subject to the qualification that there were certain key events which she had clearly rehearsed in her mind on numerous occasions since the accident so that they appeared to her to be very clear. Her recollection of other items which did not feature in her selected memory of the event was much less reliable. For example, the weight of evidence was to the effect that the landing area consisted of pea shingle. The pursuer believed that it was some form of wood bark. On that point, therefore I find her evidence to be unreliable. Similarly, the pursuer stated that she had walked up the ladder to the platform whereas the weight of evidence was that recruits were instructed to, and did, crawl up the ladder using hands and feet. I found the pursuer's four fellow recruits all to be honest and credible witnesses who were trying their best to remember the details of the assault course on the day of the pursuer's accident. Their recollections were, however, imperfect. The events were more than five years ago and they had all encountered the assault course for a second occasion during the seventh week of their basic training. The difficulty which some of these witnesses had in recalling details of events was illustrated by the two witnesses led by the defender. K A Dinsmore was not sure whether the pursuer was in the same group as him or not. He thought that he had been in the Cunningham Group whereas she had been in the group called Drake. He did not recall the ladder jump. He did not appear to recognise a verbal description of it and when he was shown a photograph of what had previously been identified as the ladder jump, he said that he did not recall ever having seen it. Katie Romanowska remembered the pursuer's accident. She had jumped first and remembered hearing the pursuer cry out behind her and attempting to turn back to assist her but being told to carry on with the course. She only slightly recognised the same photograph when it was shown to her and she remembered the landing as being onto grass.

[28] I found PTI Hodgkinson to be an unsatisfactory witness who had a tendency to change his evidence to suit the occasion. At first, he had no recollection of the pursuer's accident, but when that became a difficult position to maintain in light of some of the documents which he was shown, he remembered it. His position on the importance of demonstrating the ladder jump in the sense of performing it himself was similarly unsatisfactory. His position Aat first was that he did not consider such a demonstration to be essential and he conceded that he did not always carry out such a demonstration. He explained that there were occasions when he was unfit to do so as a result of various injuries which he had sustained. When pressed on the matter in cross-examination, he accepted that it was essential to carry out such a physical demonstration but he made no attempt to reconcile that acceptance with his other evidence to the effect that it was not his invariable practice to carry out such a demonstration. He made no attempt to explain why on some occasions no practical demonstration was given when he appeared, latterly, to accept that such a demonstration was essential.

[29] His position on the alternative of jumping from a sitting position was that it was an option which was available if a recruit refused to jump, or if he, PTI Hodgkinson, spotted a hesitant recruit. The existence of this option was not explained in advance.

[30] PO Carroll had retired from the Navy in 2002. He had taken no steps to prepare himself to give evidence. He had looked at no documents or photographs. I found him to be a credible witness. He said that generally a practical demonstration of the ladder jump was given but he could not be sure whether it had been on the occasion of the pursuer's accident. He did, however, have a clear recollection of the pursuer and of her accident. He described her as "not a physical sort of person" and as someone who needed to be encouraged to negotiate the obstacles. He remembered gently persuading her to jump and telling her to do it however she wanted to. He remembered the pursuer injuring herself on landing.

[31] The two recruit witnesses who were led for the pursuer, Toni O'Hare and Simon Davis both spoke to the fact that PTI Hodgkinson had not physically demonstrated the ladder jump himself. I found them both to be credible and generally reliable witnesses.

[32] On the evidence of Mr Edmondson and Dr Graveling, a jump of the height of the ladder jump for new recruits such as the pursuer was a potential danger and presented a risk of physical injury. That ought to have been apparent to the MOD. Similarly, the varying abilities of such recruits could not be known to the MOD with any certainty. There was also the more remote risk of a recruit being predisposed to injury such as was the case with the pursuer as a result of her injury the previous day while playing hockey. The MOD should have reduced the risk of injury by requiring PTI Hodgkinson physically to demonstrate jumping from both a sitting and a standing position and to give all the recruits such as the pursuer the opportunity to jump first from a sitting position and then from a standing position. Had the MOD done so, it would have materially reduced the risk of physical injury to the pursuer and would probably have prevented it. The system spoken to by PTI Hodgkinson, namely offering the sitting alternative to recruits who refused to jump or who appeared to him to be hesitant was inadequate and plainly did not work in the pursuer's case. On the evidence of PO Carroll, the pursuer was evidentlplainly hesitant but PTI Hodgkinson did not step in to demonstrate to her in any way how to descend more safely from a sitting position. PO Carroll may well have told the pursuer at the last minute to do the jump however she wanted to, but without the sitting position jump having been physically demonstrated to her before, that was inadequate.

[33] I accepted the evidence of the pursuer, Toni O'Hare and Simon Davis that PTI Hodgkinson had not himself performed the ladder jump. While one might have thought that a static demonstration of the landing technique would have been adequate, I accepted the evidence of Dr Graveling that the technique of bending the knees on landing rather than landing with bent knees was more likely to be appreciated through physical demonstration rather than verbal instruction. Accordingly I find that PTI Hodgkinson was at fault in not himself performing the ladder jump and that that failure also materially contributed to the pursuer's physical injury.

 

Quantum

[34] Parties were agreed that in the event that I found that the accident was caused by fault of the defender and that

"in terms of the expert medical evidence her whole loss is attributable to the accident, then the damages payable will be £191,400 gross of benefits which may be repayable...",.

bBut that if in terms of the expert medical evidence her whole loss was not attributable to the accident, then the damages payable would be £83,136 gross of benefits which might be repayable. (Joint Minute No. 26 of process, paragraphs 1 and 3.). These two possibilities arose because of apparently conflicting evidence given by two expert witnesses. For the pursuer, Dr Derek Chiswick, Consultant Forensic Psychiatrist, gave evidence to the effect that as a result of the accident the pursuer had developed an adjustment disorder which was initially of a severe degree and by April 2006 was moderate in degree. Dr Chiswick described "adjustment disorder" as a psychological condition consisting of a state of subjective distress and emotional disturbance sufficient to interfereto the extent that it interfered with social functioning and the performance of normal day-to-day activities.

[35] For the defender, Dr Alan Carson, Consultant Neuropsychiatrist, gave evidence to the effect that the pursuer suffered from alcohol dependence. He explained that this was an unusual reaction to a situation and that it involved a degree of behavioural choice. He believed that the pursuer had active psychological difficulties prior to the accident rather than mere latent vulnerabilities. Because he believed that the pursuer's alcohol dependence was not caused by the accident, he concluded that the accident had only contributed to 20-30% of her psychological symptoms over the year or possibly two years following the accident. He accepted that that assessment was in no way scientifically based but rather a guide to his opinion on the case. In view of this apparent difference of expert opinion, it is necessary to examine the evidence more carefully.

[36] Dr Chiswick interviewed the pursuer and her mother on three different occasions, 17 October 2002, 31 March 2005 and 27 April 2006, and produced a detailed report on each occasion (Nos 6/2, 6/20 and 6/31 of process). In addition, he prepared a report dated 19 June 2005 (No. 6/21 of process) in which he commented specifically on Dr Carson's report of 25 May 2005 (No. 7/8 of process). In each report he detailed the medical records of the pursuer to which he had had access as well as narrating the history which he had obtained from both the pursuer and her mother. He was well aware of the pursuer's medical and psychological history before the accident. His conclusion was that the pursuer showed a pre-disposition to develop mental health symptoms in the face of an adverse life event such as serious injury, but that there was no evidence to suggest that she had any pre-existing psychiatric disorder prior to the date of the accident. He considered that the precipitating factors for her adjustment disorder where thea physical ankle injury, the traumatic events between February and August 2001 and the state of impairment which the pursuer continued to experience as a result of her ankle injury. Without that sequence of events she would not have developed and adjustment disorder. (No. 6/20 of process). In arriving at that opinion, he was well aware that prior to the accident the pursuer's alcohol consumption had been "a social drink at the weekends" and that thereafter she had periods of heavy drinking.

[37] In his first report, Dr Chiswick referred to some of the traumatic events which the pursuer experienced betweenfore February and August 2001:

"She said she thinks of the accident 'all the time' and wonders, 'why me? There were 28 of us'. She wonders 'what the future holds" for her'. She is very angry with the way the Royal Navy dealt with her and her injury. She is hurt and bewildered that they can have been so uncaring or lacking in appreciation of her disability. In particular she was greatly distressed by: (1) an initial 2two-hour wait in sick bay with what was described as a 'sprainframe'; (2) being 'deposited alone' at Derryford Hospital (sic); (3) making the complex journey home to Edinburgh after her discharge from Derryford Hospital; (4) being left 'helpless' at Plymouth Airport to await transport to her ship [subsequently corrected to 'barracks']; (5) being required to make repeated journeys between Plymouth and Edinburgh without assistance; (6) at HMS Stonehouse, while on crutches, being expected to manage the stairs and be able to carry a tray; (7) being subjected to abusive comments from NCOs to the effect that she was 'kidding on'."

It is important to note that of the seven particular factors enumerated, with the exception of factor (5), all occurred within the first two months after the accident and that most of the journeys referred to in factor (5) occurred within thate period or within three months of the accident.

[38] In his first report Dr Chiswick considered, but rejected a diagnosis of post-traumatic stress disorder. At that time (17 October 2002) he considered the pursuer's increased drinking as follows:

"She is drinking far in excess of advised safe limits for alcohol consumption. She does not currently show features of harmful use of alcohol but, if her current level of consumption continues, she is likely to run into serious difficulties with regard to her mental and physical well-being."

[39] At that time Dr Chiswick had had access to the pursuer's Royal Navy medical records. Those records disclosed that in May 2001 the pursuer's psychological condition gave cause for concern and she was referred to the Department of Community Psychiatry at HMS Drake for assessment. There is no reference in the pursuer's Navy medical records toof any untoward alcohol consumption. A urine analysis carried out as part of the pursuer's medical record on release from the Navy on 9 July 2001 recorded no abnormality.

[40] The pursuer's GP medical records contain a letter dated 26 July 2001 sending her registration forms for completion and return (No 6/3.61 of process). In evidence it emerged that a Registration Questionnaire (No 6/3.67 was probably the pursuer's response to that letter. It contained the questions: "Do You Drink Alcohol?" and "How Much?", to which the pursuer responded: "Yes" and "Not a lot" respectively.

[41] According to the pursuer's medical records, the first time that her drinking habits received any medical attention was on 11 May 2002 when she attended her general practitioner along with her mother. The pursuer had had an emotional outburst the previous evening and she presented with a history of mood swings and heavy drinking. The general practitioner referred the pursuer to Dr Moffoot, a consultant psychiatrist. His referral letter, dated 16 May 2002, briefly described the history given by the pursuer on 11 May 2002. The letter stated inter alia:

"She has a history of anxiety and panic attacks and I believe she has seen a CPNM in the past for an anxiety management course.

We have discussed her alcohol problem initially and in the meantime I have not prescribed any medication."

The pursuer's GP medical records do not disclose any reply to that letter, although they do contain a letter from Dr Moffoot, dated 20 February 2003, concerning an apparently unsuccessful attempt by the pursuer to use her psychiatric condition to avoid having to give evidence as a witness in a criminal trial arising from a brutal assault. He referred to having reviewed the pursuer with Louise Mason, a community occupational therapist, who had been supporting her. The letter contained no reference to the pursuer's alcohol consumption.

[42] It appeared that as a result of the referral to Dr Moffoot, the pursuer had been referred to Brendan Perry, an alcohol liaison nurse. Again, the pursuer's medical records contain no report or letter from Brendan Perry recording his assessment of the pursuer's alcohol consumption. Dr Chiswick's first report refers to a letter written by Brendan Perry to Dr Chiswick, presumably in response to an invitation from the latter. That report included the quotation from Brendan Perry's letter that on 9 October 2002:

"She was extremely distressed, she was unable to walk without a stick, she was feeling frustrated, and the problems of her uncertain future was (sic) beginning to overwhelm her. As such I asked Dr Danika Coates (SHO to Dr Mofofoot, Consultant Psychiatrist) to interview Sinead with me. It was felt appropriate that she should receive Cchlorpromazine 25 mgs once daily or a maximum of three times daily.... wWe will be aiming to restore some self confidence in social situations, in travelling and within herself."

Dr Chiswick recorded no reference by Brendan Perry to the pursuer's alcohol consumption.

[43] In his second report Dr Chiswick recorded that on 31 March 2005 the pursuer was attending a community psychiatric nurse, Mr Brendan Paerry (sic). She had informed Dr Chiswick that her drinking was "not as bad as it had been". Dr Chiswick's second report again contained various quotations from the pursuer's medical records. He referred to a letter following on from attendance by the pursuer at the orthopaedic clinic of the Royal Infirmary of, Edinburgh on 13 January 2004. That letter apparently stated that the pursuer did not consume any alcohol. Dr Chiswick's second report further recorded various entries from the medical health records of the pursuer kept by Midlothian Community Mental Health Team. The discharge letter from an occupational therapist dated 9 June 2003 recorded: "lLevel of functioning has been variable.... nNo longer using alcohol to help her cope." A letter from Brendan Perry dated 2 September 2004 recorded: "uUse of alcohol is not excessive". The entry for 2005 was in the following terms:

"Referred by Brendan Paerry (sic) to clinical psychologists (28 January): 'forced resignation from the Navy, robbed her of her intended career and of necessity caused a dramatic change in her life... lLegal battle... quite ?? dtraining... increase in her symptoms of anxiety... always found her to be appropriate, honest and has coped remarkably well with her difficult situation... has used minor tranquillisers when stresses has became too difficult, but she herself requested a different approach, hence this referral to yourself".

Reviewed on 3 March by Brendan Paerry: (sic)

"Alcohol hardly an issue... isf not planning any regular employment or career decisions until after court case...coping with all stresses, will leave for open appointment meantime, Sinead happy with this arrangement".

[44] Against the background of that information which Dr Chiswick had obtained from the pursuer's mental health records, he expressed the opinion that since he had last seen the pursuer in October 2002 she had continued to attend Mr Brendan Perry who had provided the principle input for her mental health problems. Dr Chiswick remained of the view that the pursuer had developed a severe degree of adjustment disorder together with excessive alcohol consumption. It is significant, in my opinion, that this analysis by Dr Chiswick of the pursuer's mental health records from Midlothian Community Mental Health Team did not contain any reference to excessive alcohol consumption by the pursuer and that the focus of Brendan Perry's work with the pursuer in 2003, 2004 and the first three months of 2005 appeared to be her psychological condition and not any abuse of alcohol.

[45] When Dr Chiswick saw the pursuer and her mother for the third time on 27 April 2006, he concluded that there had been some periodic excessive drinking but that currently she did not show evidence either of alcohol dependence syndrome or of harmful drinking of alcohol. When Dr Chiswick was giving evidence in court, he again stated his opinion that although the pursuer drank too much from time to time she was not alcohol dependent. He explained that he had found it difficult to "pin down" the level of the pursuer's alcohol consumption because of inconsistencies in her account of events when he discussed alcohol consumption with her. He recognised that she might have been drinking secretly and for this reason he had regard to related behaviour, such as the time of day at which she had said she was drinking.

[46] Dr Carson examined the pursuer once, on 7 May 2005. He did not interview the pursuer's mother. He had access to a medical report on the pursuer by Miss McQueen, Consultant Orthopaedic Surgeon, dated 12 August 2002, Dr Chiswick's first report, the general practice records for the pursuer, her records from the Royal Infirmary of Edinburgh, her records from Derriyford Hospital, her Royal Naval Sservice records and her records from HMS Drake. He took a full history from the pursuer including a detailed history of events between 23 February and 7 August 2001. This history included an increase in the pursuer's drinking after her return to Plymouth at about the end of April 2001. Her accommodation was then closer to a bar and she started drinking every night. She told Dr Carson that after her orthopaedic review on 25 May 2001, she was told that her career in the Navy was over. She felt crushed by that news. She told Dr Carson that she was seeing a psychiatrist because she was drinking and angry all the time. Her drinking continued to increase and when she returned to her home for two weeks in June 2001 she told Dr Carson that she was drinking from lunchtime onwards, that she was physically agitated until she had had her first drink and that she suffered morning retching, diarrhoea, high pulse and palpitations. She knew that she was drinking too much.

[47] According to Dr Carson, the pursuer told him that her heavy drinking continued after she had left the Navy on 7 August 2001 and that she sought medical help on 11 May 2002. Her general practitioner then referred her to an alcohol problems counsellor whom she saw twice a week at first and she received help with anxiety and agoraphobic symptoms "but was drinking heavily during this period". She told Dr Carson that approximately a year after the accident she began to cut down her drinking but was still very drunk at weekends. I note that that was some three months before the first medical record of her excessive drinking, namely 11 May 2002 and the subsequent referral letter to Dr Moffoot dated 16 May 2002.

[48] Dr Carson also recorded in his report that the pursuer had been ready to leave the Navy on two or three occasions before the accident occurred but that her family, in particular her mother, had persuaded her to stay. She therefore blamed her mother for putting her in a position where the accident happened. This proposition completely contradicted the pursuer's evidence that she had been pleased to join the Navy, that she was fully committed to a career in the Navy and that she had coped well with, and had enjoyed her basic training up to the time of the accident. For this reason this passage from Dr Carson's report was explored in evidence with him. He was quite certain that that was what she had told himher. It had emerged from the pursuer spontaneously, buton the bidding but it was ofwith particular interest to Dr Carson as it shed light on the pursuer's relationship with, and fdeealings towards her mother, and it was another focus for the pursuer's anger and frustration at the accident and its consequences for her.

[49] My assessment of the pursuer and the way in which she gave her evidence was that she was coping with basic training training, thatbut she was not ready to leave the Navy on two or three occasions during the eleven days immediately preceding the accident and that her mother did not persuade her during those days to stay in the Navy. Furthermore, I consider that the pursuer did not intentionally give to Dr Carson the account of events which he recorded in his report. I conclude therefore that there was a misunderstanding between the pursuer and Dr Carson on this point not withstanding the latter'sck of certainty that what he recorded was what she said. There is one possible explanation. There is no doubt that after the accident the pursuer wished to return to Scotlandleave the Navy as soon as possible so that she could be cared for at home by her mother, even if that meant leaving the Navy, but that her mother persuaded her to stay in the Navy and to return to Plymouth to be cared for there. It is possible that confusion between the pursuer and Dr Carson arose overafter the timing of those events.

[50] Dr Carson recorded the pursuer's current alcohol consumption as at 7 May 2005 as being within normal limits. She told him that she rarely drank. She had cravings but that they had decreased recently. In his report Dr Carson set out various quotations from the medical records which weare available to him. I note that tThe first line of his entry from the general practice notes for 3 August 2001 seems inherently unlikely and isf not reflected in the GP records produced to the court. The extracts from letters and other records reflect the total absence of reference to excessive alcohol consumption by the pursuer before the letter of 16 May 2002. I note in particular a letter from the pursuer's general practitioner dated 7 March 2002 to Ms Verreacchia, a nurse counsellor, in the following terms:

"Many thanks for seeing Sinead who has requested counselling. She is having difficulty in coming to terms with an ankle injury, which forced her to leave the Navy last year .... Sinead has a history of anxiety and panic attacks and has seen a CPN in the past for an anxiety management course."

[51] Dr Carson narrated at some length the terms of a letter dated 9 June 2003 from an occupational therapist to the pursuer's general practitioner but I note that he omitted the last sentence in which she stated: "She will continue to see Brendan Perry in the short term although (sic) is no longer using alcohol to help her cope.".

[52] In the "opinion" part of his report, Dr Carson doubted the reliability of the pursuer's description of events. He was "far from convinced" that she was telling him the whole story. He felt that slightly different versions of events were being given by the pursuer to different people and he noted from the terms of the letter from Dr Moffoot, dated 20 February 2003, that there was "clear evidence that [the pursuer's was] not above using her medical problems to solve social dilemma". He concluded: "Therefore she is able and willing to manipulate situations at times.".

[53] Dr Carson's primary diagnosis was "Aalcohol Ddependence with physisychological dependence (DSM-4 /for 303.90)". He stated: "It does have to be stressed how unusual a reaction to a situation this is and also that it involved a degree of behavioural choice." He made that diagnosis against the background of his opinion that the pursuer had been significantly more disturbed prior to the accident than might at first glance be perceived as having been the case. He believed that the pursuer's psychological difficulties were active prior to the accident not just latent vulnerabilities. He appears to have been influenced to some extent by the consideration that the pursuer had wished to leave the Navy prior to the accident having occurred. With regard to the pursuer's psychological condition after the accident, Dr Carson concluded: "I believe following discharge from the Navy, Miss Dodds has had some mild low grade psychological problems, but I also think there areis suggestions that she has been functioning at a level somewhat better than she claims."

[54] Dr Carson's diagnosis of alcohol dependence was influenced by the description which he had obtained from the pursuer of morning retching, diarrhoea, high pulse and palpitations. That description was within two pages of his report which were put to the pursuer in evidence and with which she agreed. When that description was put to Dr Chiswick, he accepted that it was consistent with alcohol dependence, but explained that he had not obtained that history.

[55] Dr Carson also stated in evidence that he thought that Mr Perry had made a diagnosis of alcohol dependence. It was clear that Dr Carson held Mr Perry in high regard as a very experienced charge nurse and that Dr Carson respected Mr Perry's diagnosis. I have been unable to find any trace in the medical records produced to the court of such a diagnosis having been made by Mr Perry.

[56] There is a reference to "Aalcohol dependence syndrome" in a document contained in the pursuer's GP records (no. 6/25.16 of process). Under the heading "Priority Clinical/User Marker" an entry reads: 16/05/2002 High Alcohol dDependence sSyndrome". The first point to note about that entry is that 16 May 2002 was the date of the first referral letter by the pursuer's general practitioner to Dr Moffoot seeking the latter's views on whether the pursuer had an alcohol related problem. As at that date no one had attempted a diagnosis of the pursuer's alcohol related condition. The second point is that this document was referred to on only one other occasion in evidence, when it emerged that it was a secondary record, in that it had been prepared by someone from the pursuer's primary medical records to facilitate computerisation of her medical records. There was no evidence as to whether or not the compiler of this secondary record had any medical qualification. Only one other entry in the document was explored in evidence. The entry recorded "14/03/1991 High Fracture of lower limb Lleft Aankle". That entry appeared in fact to relate to a green stick fracture of the pursuer's left arm for which she was treated at the Royal Hospital for Sick Children on that date. I consider therefore that it would be most unwise to place any weight on entries in this secondary document without first having regard to the primary medical record from which the relevant entry had been made. It is possible that Dr Carson was misled by the "Aalcohol dependence syndrome" entry.

[57] I agree with Dr Carson's assessment of the pursuer that she was prone to give slightly different versions of events to different people. I consider that she was also capable of exaggerating symptoms when it suited her. With regard to the history which Dr Carson obtained from the pursuer of morning retching, diarrhoea, high pulse and palpitations, I consider that she may well have experienced some or all of those symptoms on one occasion, but not repeatedly as Dr Carson took from what she told him. There is the further complication that in taking this history from the pursuer Dr Carson did not always obtain a complete understanding of the pursuer's position, as was illustrated by the misunderstanding over whether or not the pursuer wished to leave the Navy before the accident. I consider also that Dr Carson was at something of a disadvantage in arriving at his diagnosis of alcohol dependence in theparticular absence of information from any source other than the pursuer herself. He did not have the benefit of interviewing her mother. The extreme symptoms which Dr Carson recorded, and which Dr Chiswick did not, wereas supposed to have occurred when the pursuer was at home and it would perhaps be surprising if the pursuer's mother had not observed them. Dr Carson may also have been misled by his belief that a diagnosis of alcohol dependence had been made by Brendan Perry. Furthermore, it appears that Dr Carson did not have access to the records of the Midlothian Community Mental Health Team which were available to Dr Chiswick at the time of compiling his second report. Those records were not produced to the court. Nor did Dr Carson have any direct contact with Brendan Perry as apparently Dr Chiswick did in the form of Brendan Perry's letter dated 14 October 2002 and referred to in Dr Chiswick's last report. For all these reasons I prefer Dr Chiswick's assessment of the pursuer's drinking habits and I am unable to accept Dr Carson's diagnosis of alcohol dependence with physisychological dependence.

[58] With regard to the assessment of the pursuer's mental health immediately prior to the accident, I prefer the opinion of Dr Chiswick that she was psychologically vulnerable but functioning, to that of Dr Carson that she was significantly more disturbed with active psychological difficulties before the accident. I therefore accept Dr Chiswick's diagnosis of adjustment disorder which I find was caused or materially contributed to by the pursuer's accident injury, the continuing physical impairment which she suffered as a result of that injury and the feelings of anger and frustration which she suffered as a result of the accident itself and at the loss of the career in the Royal Navy which she had hoped to enjoy. I find that the pursuer's adjustment disorder was also materially contributed to by the traumatic events between February and August 2001 and that some, but by no means all of those events were caused by what might be described as noviervous actus intervenientes. I distinguish ed between events during this six month period which wereas a natural consequence of the pursuer's accident and those which were caused by the actions of others, albeit others for whom the MODdefender might in theory theory have been viprecariously liable. That was not the pursuer's case. For example, I distinguished between anger and frustration which the pursuer felt over events directly caused by the accident, such as her medical treatment and her need to travel between Edinburgh and Plymouth, one being her home and the other her place of work, and the loss of her anticipated career in the Navy, on the one hand, and anger and resentment at treatment by the driver who left her at the hospital gates instead of seeing her to the door of the hospital or the orderlies who made no allowance for her inability to carry a tray of food while using crutches, on the other hand..

[59] Senior counsel for the defender submitted that the events between February and August 2001 constituted noviervous actus and that those events were an essential part of Dr Chiswick's diagnosis. This distinction is important because of the decision of the Second Division in Graham v David A Hall Limited, 1996 SLT 596. That case concerned an employee who had sustained an injury to her back when she salipped on the stairs at the place of her employment. The medical evidence was that she should have recovered from the injury within three months of the accident, but that she continued to complain of various symptoms at the date of the proof, about five years after the accident. The Lord Ordinary restricted the amount to which he would have awarded the pursuer's as solatium to that which reflected his view that she should have recovered within about three months, and that any continuing disability was caused by the pursuer's anger at what she felt was unfair treatment by the defenders after the accident, which had resulted in a psychological disturbance. The Second Division held that the defenders were liable for any psychological injury caused by their negligence, whether or not the pursuer was by nature more susceptible than other persons tofor such injury, but that it was not the accident which caused her continuing symptoms but what had happened thereafter.

[60] This decision was considered again by the House of Lords in Simmons v British Steel PLC,lc 2004, SC (HL) 1994. In that case the pursuer had sustained a severe blow to the head in an accident for which the defenders were liable. After the accident the pursuer experienced an exacerbation of a pre-existing skin condition, and he developed a change in his personality which resulted in a severe depressive illness. The Lord Ordinary awarded damages in respect of the head injury, but was not satisfied that the pursuer had proved that the skin condition and the depressive illness wereas sufficiently causallosely connected to the accident. He found that the pursuer had become angryer after the accident and that it was his anger which led to the exacerbation of the skin condition and the depressive illness. The Second Division took a different view on the facts and held that the skin condition began to worsen within a matter of days. They found that the exacerbation of the skin condition and the depressive illness were directly caused by the accident and awarded damages accordingly. The House of Lords held that the Lord Ordinary had been entitled to make the findings in fact in which he had made and that the Second Division had been ian error when they interfered with them, but that the question of whether the Lord Ordinary was right on the issue of remoteness requireds to be answered. Under reference to the decision in Graham v David A Hall Limited, Lord Rodger of Earlsferry stated [at para 58]:

"So, here, the Lord Ordinary held that the exacerbation of the pursuer's psoriasis was caused not by the accident but by 'his anger at the defenders' treatment of him' (2002) SLT pP713 F-/G).

It is important to notice that, consistently with his conclusion in para 20, the Lord Ordinary does not single out the defenders' treatment of the pursuer after the accident. If he had, the Graham case would have been in point and the Lord Ordinary would have been entitled to regard his anger at the defenders' failure to visit him or show any interest in him as the, distinct, operative cause of his psoriasis and, hence, of his depressive illness. But, as the Lord Ordinary himself found, this was only one among a number of factors, all of which brought about his condition. His anger at the defenders' that the accident had occurred at all, despite the warnings, also made a material contribution to the development of his condition. Before the House, senior counsel for the defenders sought to argue that the principleal in Wardlaw v Bonnington Castings Limited did not apply in this situation, but he cited no authority for his proposition and, in my view, it is unsfound. The usual rule applies and, in the absence of any basis for identifying and apportioning the respective roles played by the various factors inand the development of the pursuer's condition, the pursuer is entitled to recover damages for all of his injuries.".

[61] At paragraph [55] Lord Rodger considered an argument for the defenders' that the pursuer's psoriasis and his depressive illness sprang not from the accident itself, but from his anger at the happening of the accident and hence he could not recover damages. Lord Rodger disposed of the argument thus:

"I see no reason to give effect to such a distinction, even supposing that it can be realistically drawn in a given case. Regret, fear for the future, frustration atof the slow pace of recovery and anger are all emotions that are likely to arise, unbidden, in the minds of those who suffer injuries in an accident such as befell the pursuer. If, alone or in combination with other factors, any of these emotions results in stress so intense that the victim develops a recognised mental illness, there is no reason in principleal why he should not recover damages for that illness".

[62] While I accept that certain of the events which occurred between February and August 2001 constituted novi actus intervenientes, in the sense considered by the Second Division in Graham v David A Hall Limited, other traumatic events during that period fell, in my opinion, into the category described by Lord Rodger in paragraph [55]. Furthermore, I can find no basis forof identifying or apportioning the respective roles played by the factors which Dr Chiswick identified as precipitating the pursuer's adjustment disorder. Both he and Dr Carson acknowledged that there was no scientific or other reasonable basis for so doing. On the basis therefore of my finding that the pursuer's original injury, the continuing physpsychical impairment which she suffers as a result of the ankle injury and the anger and frustration which she has experienced as a result of both of the accident itself and at its termination of an anticipated hopeful career in the Royal Navy, I find nothing in the expert medical evidence in the case to persuade me that the pursuer's whole loss is not attributable to the accident (as would be required by paragraph 3 of the Joint Minute). Furthermore, I find that the majority of the traumatic events which the pursuer experienced during February and August 2001, in particular her frustration at being incapacitated by her injury, the inevitable treatment process even without intervening inconsiderate treatment by others, the need to travel while physically incapacitated caused by the pre-existing distance between her home and her place of work and the anger and frustration at the unfolding in late May and early August 2001 of the termination of her hoped for ful career in the Royal Navy as the unavoidable consequence of her physical injury, also made a material contribution to her adjustment disorder. Accordingly I award damages in terms of paragraph 1 of the Joint Minute.

 

Result

[63] For the forgoing reasons I repel the pleas-in-law for the defender and I shall pronounce decree in favour of the pursuer in terms of paragraphs 1and 2 of the Joint Minute (No 26 of process) in the sum of one hundred and ninety one thousand, four hundred pounds (£191,400), gross of benefits which may be repayable in terms of the Social Security (Recovery of Benefits) Act 1997, made up as follows:

Solatium £35,000

Interest (two thirds for the past) £ 4,923

Past Loss of Earnings £53,550

Interest (from October 2001) £ 9,817

Future Loss of Earnings £68,080

 

Pension Loss £15,030

Services £ 5,000

Grand Total £191,400

In terms of paragraph 2 of the Joint Minute parties were agreed that in terms of Section 8 of, and Schedule 2 to, the Social Security (Recovery of Benefits) Act 1997, the sum attributable to "compensation for loss of earnings" will be £50,000 and the sums attributable to "compensation for cost of care" and "compensation for loss of mobility" will be nil. Parties were further agreed that interest on the sum of £191,400 should be payable by the defender to the pursuer at the rate of 8% a year from 6 June 2006 until payment, and I shall pronounce decree accordingly.