Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Urquhart v. Fife Primary Care NHS Trust [2007] ScotCS CSOH_2 (09 January 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_02.html
Cite as: [2007] CSOH 2, [2007] ScotCS CSOH_2

[New search] [Help]

OUTER HOUSE, COURT OF SESSION

[2007] CSOH 02

A3710/01

OPINION OF LORD BRODIE

in the cause

GLORIA JEAN URQUHART

Pursuer;

against

FIFE PRIMARY CARE NHS TRUST

Defender:

Pursuer: Di Rollo QC, Lauren Sutherland; Anderson Strathern WS,

Defenders: Stacey QC, Wade; Ranald F Macdonald, Solicitor

9 January 2007

Introduction

[1] The pursuer in this ordinary action for damages in reparation for personal injury is Mrs Gloria Jean Urquhart. Her date of birth is 26 April 1946. On 25 August 1998 she was working in the course of her employment with the defenders as a Grade C Enrolled Nurse at the Queen Margaret Hospital, Dunfermline, Fife. The pursuer avers that she sustained injury that day when, together with a nursing auxiliary, Miss June Berry, she was attempting to manoeuvre a dependent elderly patient. It is the pursuer's contention that her injury was caused by breach of regulation 4(a) or, alternatively, regulation 4(b), of the Manual Handling Operations Regulations 1992 and fault on the part of the defenders. Essentially, the case of fault depends on averments of breach of duties to take reasonable care to arrange for the making available and use of a hoist or other lifting aid in order to move the patient, and to see that the bed did not move while a patient was being moved.

[2] Mr Di Rollo QC and Miss Lauren Sutherland, Advocate, appeared for the pursuer. Miss Valerie Stacey QC and Mrs Wade, Advocate, appeared for the defenders. The witnesses for the pursuer were: the pursuer; her husband, Mr Robert Urquhart; Mrs June Berry, formerly a nursing auxiliary employed by the defenders; Mrs Nan Lomas, the widow of a former patient at the Queen Margaret Hospital; Mrs Marjorie Ward and Mr Norman Ward, husband and wife and friends of the pursuer; Mrs Elizabeth Franklin and Jane Hynd, the daughters of former patients at the Queen Margaret Hospital; Ms Fiona Watt, a charge nurse employed by the defenders who had worked with the pursuer between 1995 and 1997; Ms Elizabeth Gillen, a senior charge nurse employed by the defenders; Miss Michelle Fleming, a staff nurse employed by the defenders; Dr Richard Graveling, a consultant in ergonomics; Mr Sam Eljamel, consultant neurosurgeon; and Dr Alexander Renwick, a retired general practitioner. The witnesses for the defenders were Mr John Short, Clinical Services Manager, who was responsible for four wards and two day hospital wards at the Queen Margaret Hospital; Mrs Melanie Pearsey or Brodie, a staff nurse formerly employed by the defenders; Ms Lorna Lee, a staff nurse employed by the defenders; Mr Brian Paterson, now a ward manager in the State Hospital but in 1998 a staff nurse at the Queen Margaret Hospital; Mrs Julie Gould, manual handling co-ordinator at the Queen Margaret Hospital; Dr Christine Donnelly, lecturer at the School of Community Health, Napier University; Dr Derek Chiswick, consultant forensic psychiatrist; and Mr Arthur Espley, retired consultant orthopaedic surgeon.

[3] Parties lodged a joint minute agreeing certain matters including information upon which a calculation of damages might be based.

The pursuer's professional experience and responsibilities

[4] The pursuer explained that she had trained as a nurse in 1972. She had started work in the Queen Margaret Hospital in 1990. In 1998 the pursuer was a C grade enrolled nurse. She worked in ward 3. She worked shifts. She was one of what was described as the "red team". The patients in ward 3 were dependent and elderly. They required continuous care. The pursuer said that she enjoyed her work.

The accident

The patient

[4] One of the patients in ward 3 on 25 August 1998 was Mr G. His date of birth was 2 June 1920. He was about 5 foot 9 or 10 inches in height. He weighed about 62 kilograms. The pursuer described him as being in an advanced state of dementia. This meant that he was usually not able to understand instructions. Number 7/1 of process is a Risk Assessment of Patient Handling relating to Mr G. In that Mr G is described as "Confused. May let go of hoist. Has no comprehension of safe handling and behaviour can be unpredictable". In the "Problems and Capabilities" section of the Risk Assessment the Nursing Response in relation to toileting is noted as "Requires use of blue medi slings and two nurses to place on commode if physical condition poor." A medi-sling is a rectangular strip of plastic about 18 to 24 inches in length with cut-outs forming grab handles at each end. Two medi-slings are illustrated in the photograph which is number 6/7/1 of process. A medi-sling can be placed at a patient's back or under his thighs in order to assist in manoeuvring him.

The pursuer's account of what happened
[5] `The pursuer explained that on the morning of 25 August 1998 she was working with Mrs Berry. Mr G was in a cot-sided bed in the first bay of the ward. There were six beds in the bay, three on one side, and three on the other. Mr G had been doubly incontinent. The pursuer's objective was to move him from his bed to a commode in order to facilitate cleaning him. Together with Mrs Berry, the pursuer placed the commode slightly away from the bed and locked each of the four wheels of the commode. As was her habit, the pursuer checked that the brakes fitted to the wheels of the bed and found them to be on.

[6] The pursuer and Mrs Berry lowered the cot-side of the bed. They cleaned Mr G and got him up so that he was sitting, facing them, on the side of the bed. Mrs Berry stood nearer to the head of the bed. The pursuer stood nearer to the foot of the bed. The commode was to the pursuer's left. The pursuer explained to Mr G what she and Mrs Berry intended to do. She did not expect that he would necessarily understand but that he would find the sound of a human voice reassuring. The pursuer and Mrs Berry placed a medi-sling under Mr G's thighs. The pursuer held the medi-sling with her left hand. Mrs Berry held it with her right. The pursuer was looking over Mr G's shoulder. The pursuer's right arm was under his left armpit. Mrs Berry was mirroring the pursuer's actions. As the pursuer and Mrs Berry were about to lift Mr G he leant forward and, as a result, the bed moved back. The pursuer's left arm was pulled forward. Her left knee hit the floor. Her left breast sheared against the cot-side and was pushed up against her rib cage. The pursuer's left knee was twisted to the left. This was obviously painful. The pursuer tried to straighten her leg and her bottom hit the floor. She lowered her right arm to steady Mr G. She held on to him. He remained on the bed throughout. He did not show signs of discomfort or pain.

[7] Mrs Berry jumped over the pursuer's legs and ran up the corridor to get help. She returned with Staff Nurse Fleming. Then Fiona Watt arrived.

[8] The pursuer was immediately aware of feeling generally hurt. Charge Nurse Watt told her to go to the Accident and Emergency Department. The pursuer's impression was of things happening quickly. She presumed that she got up from the floor to help Mr G. When the others arrived she stood aside to allow them to help the patient. She presumed that it was the others who transferred Mr G to the commode.

[9] The pursuer's husband, Mr Robert Urquhart, said in his evidence that on the day of the accident the pursuer had told him that she and another nurse had been with a patient, the bed had moved away and she had hurt herself. Her breast and leg were sore.

[10] Number 6/10/1 of process is a record of the Accident and Emergency Department which notes the clinical details relative to the pursuer's attendance on 25 August 1998. The attendance is timed at 0834 hours. Number 6/10/3 of process is a nursing note. Inter alia it records "twisted lower back, complaining of pain in neck". The pursuer denied giving an account which included these particular details.

[11] The pursuer was seen by Mr Melville, a consultant in accident and emergency medicine. His clinical note is contained in number 6/10/1 of process. It is in these terms:

"This lady is a nurse up in Ward 3. She was lifting a patient this morning when the bed slipped on a slippy floor. She sustained a very superficial abrasion over the left lateral chest wall. The skin really has not been broken and she does not require wound toilet. Close examination was unremarkable with normal breathing pattern in both lungs. She has also got some pain in her left breast but at the moment at least there is no sign of bruising. Coccyx feels normal to me although she is complaining of some pain at the tip of this and the left knee certainly on examination is entirely normal with a full range of movement and no suggestion of an effusion. My impression is one of a minor soft tissue injury for which I have prescribed Co-dydramol and I have given her appropriate advice."

I understood the pursuer to accept this as an accurate summary of what she had told Mr Melville and what he had found.

[12] Number 6/8 of process is an entry in the accident book completed by the pursuer. It is dated 25 August 1998 but I understood the entry to have been made later, on the pursuer's return to the hospital on 29 August 1998.

[13] Number 7/2 of process is an Incident Report Form. One section is headed "Description". It includes an account of the accident written by Mr Short based on information given to Michelle Fleming when she telephoned the pursuer at home. The pursuer accepted it as an accurate account of the accident.

[14] Number 7/15/123 of process is an account of the accident attributed to Mrs Berry. According to the pursuer it was not correct: Mr G had not been transferred, the pursuer did not stumble.

Accounts given by other witnesses

[15] June Berry recollected that there had been an accident in the ward involving the pursuer but she could not remember what had happened. As I have already indicated, number 7/15/123 of process is a manuscript account of the accident attributed to Mrs Berry. It was written and signed by Staff Nurse Lorna Lee. It was put to the pursuer in examination in chief. It was the pursuer's position that it was wrong. It was not put to Mrs Berry. Ms Lee confirmed in her evidence that she had spoken to Mrs Berry with a view to completing an incident report form. Ms Lee confirmed that the handwriting in number 7/15/123 of process was hers. She did not remember the details contained in the account but she accepted that it was broadly in accordance with what she remembered being told. Ms Lee had completed parts A, C and D of the Incident Report Form, number 7/2 of process.

[16] Fiona Watt said that she informed by Michelle Fleming that the pursuer had hurt herself. Ms Watt had gone to the ward to see what had happened. When she arrived she found the pursuer, as she put it, tidying up. She complained of having hurt her side. Mr G was sitting on the commode. Mrs Berry was there.

[17] It was Michelle Fleming's evidence that the pursuer had approached her to say that she had hurt herself. She was red about the rib area. She advised the pursuer to sit down and went to get Fiona Watt. When she and Ms Watt came to ward 3 the pursuer and Mrs Barry were tidying up. Mr G was seated on the commode.

Submissions as to what had occurred

[18] Mr Di Rollo commended the evidence of the pursuer as credible and reliable. It had been clear. Her account had been consistent. There was no doubt that an accident had happened in the course of moving Mr G onto the commode. That was confirmed by Mrs Berry. Had it not been for the requirement physically to handle the patient the accident would not have happened. In support of his submission that the pursuer should be accepted, Mr Di Rollo pointed to the various more or less contemporary documentary accounts of the accident which, in their essence, were consistent with what the pursuer had spoken to in evidence: the accident report (number 6/8 of process), the Accident and Emergency note (number 6/10/1 of process), the nursing note (number 6/10/3 of process), the incident report form (number 7/2 of process), the manuscript note by Michelle Fleming (number 7/15/122 of process), the hospital record (number 6/1/11 to 12 of process), the occupational health report to John Short (number 7/15/159 of process), the form filled in by Mr Short (number 7/15/137 of process), and Fiona Watt's nurse diary (number 7/21 of process). Mr Di Rollo also found support for the pursuer's account in the terms of the minute of the meeting on 16 September 1998 (number 6/9/15 of process) and the internal memo from Mr Short dated 26 August 1998 (number 6/24.22 of process). It was Mr Di Rollo's submission that Mr Urquhart's evidence as to his understanding of what had happened (based on what the pursuer had told him after the accident) was consistent with what the pursuer had spoken to in her evidence, as was the evidence of Mrs Berry, to the extent that Mrs Berry had any recollection of what had occurred. The tenor of Mrs Berry's evidence was that the lift had not been completed when the pursuer fell. I should therefore reject the suggestion that the pursuer fell after Mr G had been transferred to the commode. That required one to suppose a random fall followed by the bed moving. It was not difficult to understand what had happened, albeit that the precise mechanics might be difficult for the pursuer to describe. Dr Graveling had not found her account impossible.

[19] Mrs Stacey, on the other hand, submitted that the pursuer had failed to prove that she fell in the way described in her evidence and averred at page 8 A to C of the Closed Record. Mrs Stacey pointed to the discrepancies as between the pursuer's evidence as to what occurred after her alleged fall and that of the other nurses, Fiona Watt and Michelle Fleming and, for what it was worth, the account ascribed to June Berry and apparently recorded by Laura Lee in number 7/15/123 of process. Mrs Stacey urged me to find the pursuer neither credible nor reliable. The mechanism of the accident as described by the pursuer was impossible as the nurse would fall on top of the patient. If, as the pursuer claimed, she had sat down heavily on her bottom, she would have to have "bounced back up" in order to support the patient. Mrs Stacey referred me to the evidence of Dr Christine Donnelly which was to the effect that if what the pursuer had described occurred, the patient would have fallen on top of her. When the pursuer attended the Accident and Emergency department little was found wrong with her. Moreover, there was evidence of a number of occasions when, as Mrs Stacey put it, the pursuer "had seen things differently from others". Mrs Stacey reminded me of the pursuer's psychiatric history, as spoken to by Dr Chiswick and documented in the medical records, numbers 7/9, 7/10 and 6/14 of process.

Discussion and findings

[20] In considering whether the pursuer had made out her averments as to how she had come to sustain injury on 25 August 1998, I had regard to the various pieces of evidence relied on by counsel. Clearly they did not all have equal weight. For example, I consider that Mrs Stacey was correct to attach little importance to what appears in number 7/15/123 of process and which would seem to be the basis of the defenders averments at page 13 A of the Closed Record. Mr Di Rollo correctly pointed out that Lorna Lee was not asked whether she had taken a statement from Mrs Berry and that it was never put to Mrs Berry that she had given a statement to Ms Lee. The terms of the statement were not put to Mrs Berry. These criticisms did not persuade me entirely to ignore Ms Lee's manuscript headed "June Berry's version" but I was not inclined to place reliance on the precise wording of what, at best, is a very brief note by Ms Lee of her understanding of Mrs Berry's view of what happened. Mr Di Rollo had also submitted that Lorna Lee was an unsatisfactory witness for reasons that he gave: she had been disciplined in respect of a slapping incident and she said that she had never been involved in getting Mr G onto a commode, whereas Brian Paterson had said in his evidence that that Ms Lee had had contact with Mr G, carrying out all necessary care, including toilet care. I was unimpressed by these criticisms. When she came to give her evidence Ms Lee appeared to me to be both intelligent and careful. I take her to have completed number 7/15/123 of process in good faith but that does not mean that it is necessarily a precisely accurate description of the accident. I came to prefer the pursuer's account, as spoken to her in her evidence. I detected nothing in the way that the pursuer gave her evidence which led me to doubt either its credibility or reliability. I did not, however, consider that to be conclusive of the issue. It is correct that there was evidence that there had been occasions when the pursuer, as Mrs Stacey put it, "had seen things differently from others". She had a psychiatric history, as spoken to by Dr Chiswick. However, Mrs Stacey did not explain exactly how these two chapters of evidence might help me in forming a view as to whether the pursuer was to be regarded as credible and reliable in relation to her account of what occurred on 25 August 1998. I have to make a judgement on that. As Mr Di Rollo accepted, the pursuer's account of the accident itself was uncorroborated. Moreover, as Mrs Stacey pointed out, there were discrepancies as between the accounts given by Fiona Watt and Michelle Fleming, on the one hand, and that given by the pursuer on the other, in relation to what happened immediately after the pursuer sustained injury. It was not entirely easy to understand just how the pursuer had fallen. I was not however persuaded, notwithstanding the evidence of Dr Donnelly (which she qualified under cross-examination), that what the pursuer had described was physically impossible. The pursuer was the source of the information in the contemporary documentation. The documentation therefore does not provide corroboration but it does point to the pursuer having given a consistent account from almost immediately after the occurrence. Looking at matters in the round, I considered that the salient features of that account: a fall resulting in the pursuer striking her left knee and bottom on the floor, by reason of her becoming unbalanced because of a backward movement of the bed while Mr G was sitting on it before a lift or transfer was attempted, had been established on the balance of probabilities.

[21] I have accepted the pursuer's account of the bed moving notwithstanding that she had previously checked and found the brakes on the wheels to be on. It follows that application of the brakes did not prevent the bed moving.

[22] The pursuer avers, at page 8 B of the Record, that the bed slid due to a combination of the surface of the floor, the lack of rubber covering on the wheels of the bed and the fact that the brakes only operated to lock two of the four wheels. The pursuer further avers that prior to her accident there had been previous incidents of and complaints about beds slipping.

[23] The productions include correspondence directed to Mr Forrest, the Estates Manager at the Queen Margaret Hospital (numbers 6/24/35 and 6/24/35 of process), which would suggest that the critical feature was that the rubber tyres on the wheels of the beds were hard and therefore did not offer sufficient grip to resist lateral movement. This explanation is consistent with such other evidence as I heard but I consider that Mrs Stacey was correct when she said that there was no evidence as to what actually was wrong with the wheels. (beyond what may be no more than self evident but nevertheless was advanced as the explanation of the accident by Dr Graveling: a low coefficient of friction as between bed wheels and floor). I do not consider that that is important given that it was established that prior to the pursuer's accident there had been previous incidents of and complaints about beds slipping. On the limited evidence available, I regard it as reasonable to infer that whatever it was about the beds or the floor or both that had led to beds slipping on previous occasions was the reason why Mr G's bed moved as it did on 25 August 1998. It was Mr Short's evidence that the problem was finally solved by replacing the wheels. To judge by number 6/24/26 of process this seems to have been done shortly before 16 March 1999. The examination of a bed (thought to be the bed involved in the accident) reported by Dr Graveling in number 6/14 of process indicated that a pull force in excess of 30 kilograms could not move the locked wheels at the foot of the bed.

[24] Ms Gillen spoke to her concern about the matter (which she saw as relating to the flooring) after a minor incident involving another patient, Mr H. She raised it at a minuted charge nurses' meeting on 8 July 1998, at which Mr Short was present. It was then decided that Ms Gillen should write to Mr Short outlining the problem to enable him to bring it to the attention of "the appropriate parties". At the meeting on 5 August 1998 Mr Short confirmed receipt of a letter from Ms Gillen (number 6/24/20 of process) and undertook to discuss it with the same appropriate parties. At a meeting on 19 August 1998 Mr Short confirmed that he had spoken to Mr Forrest of the defenders' Estate Department and was awaiting feedback. At the meeting on 2 September 1998 it was not known whether any progress had been made on the review of beds in wards 3 and 4. There are references to the problem of beds moving in the minutes of the six subsequent charge nurse meetings, the last of which was on 9 December 1998, but nothing appears in these minutes to indicate that very much had been achieved. Mr Short accepted that he had been made aware of the incident involving Mr H and that he knew of two other incidents, one involving a patient the other involving a nursing auxiliary. He agreed that it was a serious problem, albeit that there are gradations of seriousness, but he maintained that it was being addressed seriously. As far as use of a hoist was concerned, I accepted the evidence of Ms Gillen, in preference to Mr Paterson who suggested that the Sara hoist could have been used, by reason of her experience, the thoughtful way in which she gave that evidence and the reasons provided for her views. None of the hoists discussed (the Sara, the Uno and the Dextra) would have been practicable as a means of lifting Mr G, who could not be taken to be capable of weight-bearing, who could not be relied on not to move about and who, according to the pursuer, had previously fallen out of a hoist.

Statutory breach, fault and causation of the accident

Manual Handling Operations Regulations 1992

[25] Regulation 4 of the Manual Handling Operations Regulations 1992 provides as follows:

"4. Duties of employers

(1) Each employer shall-

(a) so far as is reasonably practicable, avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured; or

(b) where it is not reasonably practicable to avoid the need for his employees to undertake any manual handling operations at work which involve a risk of their being injured -

(i) make a suitable and sufficient assessment of all such manual handling operations to be undertaken by them, having regard to the factors which are specified in column 1 of Schedule 1 to these Regulations and considering the questions which are specified in the corresponding entry in column 2 of that Schedule,

(ii) take appropriate steps to reduce the risk of injury to those employees arising out of their undertaking any such manual handling operations to the lowest level reasonably practicable, and

(iii) take appropriate steps to provide any of those employees who are undertaking any such manual handling operations with general indications and, where it is reasonably practicable to do so, precise information on-

(aa) the weight of each load, and

(bb) the heaviest side of any load whose centre of gravity is not positioned centrally."

Submissions

[26] Mr Di Rollo submitted that the accident had been caused by breach either of regulation 4 (1) (a) or, assuming that it not reasonably practicable to avoid the need for manual handling, regulation 4(1)(b), of the 1992 Regulations. On his approach it was important that a hoist had not been used. The pursuer had been in the course of moving Mr G onto the commode when she had her accident, albeit that she had not got to the stage when the transfer had started. Mr G had moved forward as the pursuer and Ms Barry were about to lift or transfer him. Manoeuvring Mr G was a manual handling operation. He was unable to weight bear. He was simply a load. A mechanical device should have been used. Had it not been for the requirement physically to handle the patient the accident would not have happened. If a hoist had been used, the patient's weight would have been taken by the hoist and if his weight had been taken by the hoist what had happened would not have happened. Mr Di Rollo explained that he was not suggesting that the accident could not have happened even if a mechanical hoist had been used but he emphasised that the court had to consider what had actually occurred: an accident just when a nurse was about to take weight on the medi-sling. As Mr Di Rollo put it, if you avoid manual handling, you avoid the accident. However, it was also the case that if you prevent the bed moving you avoid the accident. Although some witnesses had been reluctant to recognise that beds had a tendency to move, Mr Short, Ms Gillen and Mr Paterson all knew of beds moving. Dr Graveling had said that it should not have been tolerated. If it were to be accepted that it was not reasonably practicable for nurses to avoid manual handling, the defenders had not fulfilled their regulation 4(1)(b) duties. These included the duty to make a suitable and sufficient assessment of all manual handling operations which could not reasonably practically be avoided. Such an assessment would have included an assessment of the tendency of beds to move. The court could not be satisfied that the defenders could not reasonably be expected to do anything about it. It would not do for the defenders to say that if the pursuer has an accident that was just too bad. Mr Di Rollo accepted that the pursuer had had training and had not been taught the particular lift she was about to carry out on 25 August 1998. However, whatever had been taught was not enforced in everyday practice.

[27] For the defenders, Mrs Stacey did not dispute that this was a manual handling case but she submitted that assuming that the pursuer had suffered an accident as she had described, it had not been proved to have been caused by the defender's breach of statutory duties. It was not reasonably practicable for nurses to avoid manual handling altogether and the steps taken to reduce the risk of injury were appropriate. The pursuer had been given adequate training. There were hoists available on the ward and the medi-slings, when used appropriately, were suitable aids. There had been a suitable and sufficient risk assessment. The pursuer had not proved that the risk assessment did not take account of the wheels moving but, in any event, all the nurses, including the pursuer, knew the bed might move if force was exerted against it. The defenders had been investigating the problem having only been formally apprised of the situation in late May 1998. The accident occurred less than three months later and by that time the defenders had done as much as was reasonably practicable to eliminate the problem. As Mrs Stacey put it, all the evidence was to the effect that the risk had been identified and steps were being taken to avoid the beds slipping. However, the only case made against the defenders was under the Manual Handling Regulations. There was no case, for example, under the Provision and Use of Work Equipment Regulations. Therefore the only relevance of the wheels on the bed was a failure to take this matter into account when assessing the risk of injury. In any event the pursuer (on her version of the incident) had been contributorily negligent. She knew that the beds slipped and she knew about the problems inherent in lifting patients.

Discussion and decision

[28] In presenting his case, Mr Di Rollo did not ignore the slipping of the bed but the main thrust of his case was that manual handling should have been avoided by using a mechanical hoist to lift Mr G. That was not done and therefore, so Mr Di Rollo submitted, there had been a breach of regulation 4(1)(a) of the Manual Handling Operations Regulations 1992. I shall begin by considering this, the primary contention put forward by Mr Di Rollo.

[29] It is my view that the fact that a hoist was not used to effect the proposed lift cannot be regarded as the direct cause of the pursuer's accident. However, in my opinion, a short answer to the pursuer's regulation 4(1)(a) case is that on the evidence of Ms Gillen, which I accept in preference to anything to contrary effect said, for example, by Brian Paterson, it would not have been reasonably practicable to have avoided the need to undertake the manual handling of Mr G by using a hoist. That is not the end of the matter of statutory breach. As Mr Di Rollo submitted, a conclusion that it is not reasonably practicable to avoid manual handling operations at work which involve a risk of the employees undertaking them being injured has the result of imposing the duties incumbent on the employer in terms of regulation 4(1)(b).

[30] The method that the pursuer and Ms Berry proposed to use in order to transfer Mr G onto the commode may be described as a cross-arm lift (as illustrated on number 6/14/10 of process). The evidence before me was that professional opinion has changed over time but that looking at the issue from the perspective of 1998, there would be general agreement that for two nurses to lift a 62 kilogram patient who might be unable to weight-bear (I take from the evidence that Mr G's ability to weight-bear, such as it may have been, could not be relied upon) using the cross-arm lift would involve a risk of injury to the nurses. That was the evidence of Dr Graveling who explained: "[The cross-arm lift] was recognised in 1992 but it became recognised as not a good lift sometime between 1992 and 1997 ...[it] became recognised as unsafe by 1997." Dr Donnelly would not have used a lift under the axilla. Elizabeth Gillen thought the cross-arm lift was banned. She was sure that nurses were not meant to be lifting by 1998. Mrs Gould described her function in the Queen Margaret Hospital from 1997 as to facilitate a non-lifting policy. This is, of course, no different from the defenders' position on Record (which Mrs Stacey did not seek to depart from) where they aver that the technique averred in the pursuer's pleadings (which she spoke to in evidence) was unsafe. The defenders go on to aver, at page 19D of the Record, that it was the pursuer's duty to use a hoist and, separatim, a safe manual handling technique. However, according to Ms Gillen, whereas using a hoist to lift Mr G would have been impracticable, an acceptable technique would have been to use a swivel transfer, described in her evidence in alternative forms. I understood Dr Graveling to accept that the swivel transfer, in its second alternative, was "reasonably safe but it could be safer". Now I accept that the pursuer had been trained in the swivel transfer technique, as I accept that the defenders had implemented a no lifting policy. She therefore should not have decided to use a cross-arm lift in order to transfer Mr G to the commode. She should have decided to use a swivel transfer. That is what I take it Ms Gillen would have done.

[31] I take a swivel transfer from bed to commode to be an example of a manual handling operation which involves such a minimal risk of the employees undertaking it being injured that, in 1998 at least, it was appropriate to regard it as reasonably safe, in circumstances where bed and commode offered secure platforms from which and to which to transfer the patient. That was not the case with Mr G's bed. It slipped or otherwise moved. That in my opinion was the proximate cause of the accident. What follows from that?

[32] As Mr Di Rollo submitted, if it is impractical for the employer to avoid the need for manual handling then it must comply with the duties imposed by regulation 4(1)(b). Regulation 4(1)(b)(i) requires the employer to make a risk assessment and, given the terms of regulation 4(1)(b)(ii), act upon it. With all respect, I am not satisfied that Mrs Stacey's responses to this part of the submissions made on behalf of the pursuer: that there was no evidence that the defenders did not take the slipping problem into account when carrying out their risk assessment and that, in any event, the risk of beds slipping was known to, among others, the pursuer; met the criticism that because the slipping problem was not eliminated there can be said to have been a breach of regulation 4(1)(b)(ii), it being regulation 4(1)(b)(ii) rather than regulation 4(1)(b)(i) that is relevant when it comes to consider what caused the accident: Logan v Strathclyde Fire Board 1999 Rep LR 97, Taylor v City of Glasgow Council 2000 SLT 670, Skinner v Aberdeen City Council 2001 Rep LR 118. I use the expression "eliminated" advisedly because whatever the problem was it has, on the evidence, been solved. That satisfies me, despite the absence of quick progress demonstrated by the minutes of the charge nurse meetings, that the problem was capable of identification on the "suitable and sufficient assessment" required by regulation 4(1)(b)(i) and, once identified, capable of solution. I would regard it as self evident that a tendency of a patient's bed to slip or otherwise move on application of the level of force associated with a patient leaning forward would suggest an associated risk of injury to patient and nurse. I was, however, confirmed in that view by the evidence of Ms Gillen and Mr Short. There was clearly a reasonable risk of injury associated with beds moving. The obligation imposed by regulation 4(1)(b)(ii) is to reduce the risk of injury arising out of an employee undertaking manual handling operations to the lowest level reasonably practicable. Notwithstanding their having implemented a no lifting policy and having provided training in the swivel transfer technique, because they failed to eliminate the slipping problem I am not satisfied that the defenders took appropriate steps to reduce the risk of injury to employees arising out of them undertaking manual handling to the lowest level reasonably practicable. I therefore consider that they were in breach of regulation 4(1)(b)(ii) of the 1992 Regulations. When considering the pursuer's regulation 4(1)(a) case in the light of the facts it appeared to me that there were questions, first, as to whether the pursuer was in fact engaged in manual handling when she had her accident; and, second, assuming that she was so engaged, whether the pursuer's accident can be regarded as having occurred because she was engaged on manual handling as opposed to simply while she was engaged on manual handling. However, viewed from the perspective of regulation 4(1)(b)(ii) I have been less troubled over the causal connection between breach and injury. I am satisfied that it is proper to regard the pursuer's injury as having been caused by the defenders' statutory breach.

[33] The pursuer also presents cases at common law, founding on failures to see that a hoist or other lifting aid was available for use and to see that beds on the ward did not move while a patient was being moved. I would reject the provision of hoist case for essentially the same reason that I rejected the regulation 4(1)(a) case. I do not consider that it was practicable to require the pursuer and Mrs Berry to use a hoist to transfer a patient with Mr G's disabilities. Mr Di Rollo said that Mr G was to be considered simply as a load, like any other. Mr Di Rollo was correct, up to a point. The 1992 Regulations clearly apply to the manual handling of hospital patients, as they apply to sacks of cement. Nevertheless different considerations are relevant in the case of a patient (or, indeed, any person), on the one hand, and to a sack of cement, on the other. The comfort and safety of the patient are of importance: cf Sussex Ambulance NHS Trust v King [2002] EWCA 953. As the defenders aver, a nurse's job requires the manual handling of patients. Here, use of a hoist offered Mr G neither a comfortable nor a safe means of transfer to the commode whereas a swivel transfer was, on the pursuer's expert's assessment, reasonably safe for all concerned. In my opinion there was no negligence on the part of the defenders in not securing the use of a hoist. I have come to a different conclusion in relation to the case that asserts a failure to take reasonable care to see that the beds on the ward did not move while a patient was being moved. I take it to be beyond argument that it was reasonably foreseeable to the defenders that there was a risk of material injury to patients and staff if the problem of beds slipping on the application of moderate and usually applied force was not remedied. That is so, without invoking regulation 4(1)(b)(i) of the 1992 Regulations. On 10 July 1998 Ms Gillen succinctly but clearly identified the risk in her letter to Mr Short, citing "many near miss accidents but also falls". Now, I recognise that simply because a reasonably foreseeable risk has not been obviated over a period of weeks does not necessarily infer negligence. However, the risk here was not remote. Mr Short, who I regarded as an impressive witness, who gave his evidence in a fair and measured way, accepted as much when he agreed that it was a serious problem. He added that it was being addressed seriously and pointed to the apparent difficulty of those with technical responsibilities in finding a solution. Clearly, the ease or otherwise of taking a precaution or eliminating a risk is very relevant to a consideration as to whether there has been negligence. While it may be the case that both Ms Gillen and Mr Short took appropriate measures at an appropriate time to identify and refer the problem to those who were in a position to do something about it, the performance of those with the technical responsibilities seems, on the face of it, to have been less than impressive: some nine months passed before new wheels were fitted. Of course, what I must consider is the failure to eliminate the problem, not over a period of some nine months, but over a shorter period ending with the date of the pursuer's accident: about six weeks if one takes as a starting point Mr Short being put on notice by Ms Gillen, a little longer if one takes the starting point as being May 1998 when the problem first came to light. I accept, as Mrs Stacey submitted, that it would appear from the evidence that investigation was ongoing to see how the problem could be resolved. I accept, as Mrs Stacey also submitted, that the defenders could not fix the problem until they knew what was wrong. The question remains as to whether the matter of finding out what was wrong was being pursued with reasonable diligence, given the significant risk to safety of patients and staff presented by slipping beds. I immediately accept that there may have been technical or practical difficulties which would explain the apparently slow progress in dealing with the problem and which, when considered, might lead to the conclusion that those responsible were acting with all reasonable care. My difficulty about coming to such a conclusion is that neither Mr Forrest nor anyone else who was practically involved in attempting to deal with the problem of the slipping beds gave evidence. There is no issue but that there was in the circumstances a duty on the defenders to take reasonable care to investigate, identify and remedy the problem of slipping beds. The question is whether the defenders did enough within the available time to allow me to conclude that they were not negligent. The onus is, of course, on the pursuer to prove negligence rather than on the defenders to disprove negligence. However, in my opinion the evidence led in relation to the slipping of beds was sufficient to raise a prima facie inference of negligence which, in the absence of any direct evidence from those responsible for investigating, identifying and remedying the problem, the defenders failed to displace: cf Binnie v Rederij Theodoro BV 1993 SC 71 at 86 to 87.

[34] I make no finding in respect of contributory negligence. In deciding to employ the cross-arm lift the pursuer may have failed to take proper care for her own safety but her decision to employ that lift, as opposed to a swivel transfer, did not, in any way that I have been able to discern, cause her to suffer her accident.

Injury and damages

The termination of the pursuer's employment

[35] The pursuer returned to the Queen Margaret Hospital on 29 August 1998. On 30 August she was punched in the face by a patient. She again went off work. She did not return. Her employment was terminated on medical advice with effect from 3 October 1999. She has not subsequently taken up alternative employment.

Injury: signs and symptoms

[36] Following on 25 August 1998 the pursuer has complained of symptoms associated with her lower back and the base of her spine. During her short return to work she experienced pain in her back, jumpiness in her left foot and a pins and needles sensation in the area of the coccyx and up the spine. She attended her general practitioner, Dr Renwick. He explained the pursuer's symptoms of pain in the coccyx radiating into the left leg, genital spasms and inability to feel when she needed to empty her bladder in terms of sacral nerve damage. On 14 January 1999 the pursuer was seen by Dr D G Jones, a consultant occupational physician. His memorandum on that attendance, dated 18 January 1999, is number 7/15/159 of process. He noted complaints of numbness, pain, particularly on bending, and stiffness. The pursuer however expressed a willingness to return to work if lighter duties were available. Dr Renwick advised against the pursuer lifting in a report dated 13 April 1999 (number 7/9/181 of process). In a further report, dated 24 August 1999 (number 7/9/175 of process) Dr Renwick assessed the pursuer's chances of returning to nursing as virtually zero. At this time the pursuer said that a lot of her activities, including gardening, walking, wood turning and riding, had been curtailed. She was not aware when her bladder was full. She had difficulty with bowel movements.

[37] As I have indicated, the pursuer did not return to work. She explained that she had been told by Mr Scott that nothing in the way of lighter work was available.

[38] On 17 March 1999 the pursuer underwent X-ray of her pelvis and X-ray and magnetic resonance imaging of her lumbar spine. The resulting images were reported by Dr Beggs, a consultant radiologist, in a letter which is number 7/9/185 of process. The MRI scan was reported in the following terms:

"Disc dehydration at multiple levels and disc space narrowing with reactive end plate changes at multiple levels in lower dorsal spine. Marked hypertrophy of ligamentum flavum and facet joints in mid and lower lumbar spine. No convincing evidence of significant disc prolapse or stenosis. There is hypertrophy of the L4/5 facet joint and ligamentum flavum which causes encroachment on the superior portion of the left L5 lateral recess. It is possible that it compromises the left L5 nerve root but this is highly conjectural. CONCLUSION: multi-level degenerative changes. No convincing evidence of nerve root compromise."

[39] The pursuer was referred to Mr Eljamel. His assessment of the MRI scan of 17 March 1999 differed from that by Dr Beggs. He considered that it showed moderate L4/5 lumbar canal stenosis. Although he did not consider that it was likely that the pursuer's local symptoms would be improved by surgery, Mr Eljamel performed an L4/5 decompressive laminectomy on the pursuer on 23 November 2000. The pursuer was discharged from hospital on 25 November 2000. Number 7/9/185 of process is the discharge summary. The pursuer considered that the lumbar decompression helped her symptoms of pins and needles. However she continues to suffer from the symptoms she had described as experiencing in about August 1999. She has coccygeal pain (also described in the evidence as coccydynia) of sufficient severity to wake her from sleep. She has pain below the point of the decompression. She requires regular analgesia. When in court the pursuer not infrequently changed position or stood after a period of sitting, in order, so I inferred, to alleviate pain. She has heaviness and jumpiness in her left leg. She cannot appreciate when she has a full bladder. Bowel movements are difficult. She has a lack of feeling in the saddle area. She can no longer enjoy her former leisure time activities. She is limited in what she can do in the garden. She has difficulty in visiting, for example, National Trust properties. She no longer engages in wood turning or hill walking. She tries to get out but her legs feel heavy and sluggish. Although I do not have a note of the pursuer mentioning this when she gave her evidence in the history which appears in Mr Eljamel's report dated 11 May 2006 (number 6/34 of process) there is reference to the pursuer having developed a weakness in her left foot by June 2000 and when he saw the pursuer on 10 May 2006 Mr Eljamel observed that she walked with a high step and flapping sound arising from her left foot as she elevated it to clear the ground.

Causation: evidence and submissions for the pursuer

[40] In presenting the pursuer's case in relation to the damage arising from the injury she had suffered in the accident, Mr Di Rollo adopted and founded on the analysis put forward by Mr Eljamel. A component within that analysis was Mr Eljamel's assessment that the pursuer had a degree of lumbar canal stenosis and degenerative changes in the form of hypertrophy of the ligaments and joints at the mid and lower lumber spine which pre-existed the accident. Mr Eljamel accepted that in the absence of these conditions it was to be expected that such symptoms as would arise from the incident on 25 August 1998 would settle within (say) eight weeks. Equally, because of the pre-existing condition of the pursuer's back, which may be taken to have been the cause of the back and leg pain that she had reported in April and November 1997, it was to be anticipated that the pursuer would have been experiencing low back and leg symptoms of an equivalent severity to what she has experienced subsequent to August 1998 by the time she reached the age of between 55 and 60 years, irrespective of any accident. In August 1998 the pursuer was 52 years of age. If Mr Eljamel was correct she was therefore reporting significant leg and back symptoms between three and eight years earlier than he would have expected, given the episodes in April and November 1997 and the period of some eight months during which she was symptom free prior to the accident. Mr Eljamel considered that this earlier than expected emergence of leg and back symptoms was the result of the accident. I rather understood Mr Eljamel to be reluctant to put this in terms of an acceleration of the incidence of symptoms and I can understand that but, equally, I understood Mr Di Rollo's approach which was to accept Mr Eljamel's evidence and to restrict his claim on the pursuer's behalf to the bringing forward by five years of what, on the balance of probabilities, would have occurred in any event. Mr Eljamel could not explain the symptoms associated with the bladder, bowel and saddle area either in terms of the pre-existing conditions or anything that might have resulted from the accident. Mr Di Rollo therefore did not seek to argue that these symptoms had been caused by the accident.

[41] As appears from his report dated 11 May 2006, Mr Eljamel diagnosed the pursuer's condition as a complex regional pain syndrome after minor trauma to the coccyx and back area. He saw the leg and back symptoms as being attributable in part to the stenosis and in part to what had occurred in the accident. It was difficult to determine just what it was that had occurred in the accident but a possibility was a disc prolapse that had impinged on a nerve, thereby irritating it, albeit that there was no record of a disc prolapse in the pursuer's case. That nerve might then have remained irritable or hyper-sensitive, giving rise to chronic pain. Putting it differently, a minor injury had lowered the pain threshold of the nerve. In cross-examination Mr Eljamel developed the mechanisms of injury that fell to be considered. First, there was direct trauma such as would have resulted from the hitting of the coccyx on the floor. Second, there was the massive reflex mechanism of muscles contracting and jarring the relevant part of the body. With direct soft tissue injury one would expect recovery in 80 per cent of cases within six to eight weeks. It was the case of indirect injury with flexing and twisting of the back where I understood Mr Eljamel to see greater potential for damage. Again in cross-examination Mr Eljamel made reference to a tearing of tissue, such as would occur in a disc prolapse, with the release of chemicals producing irritation of nerves. He went the distance of saying "I believe that there must have been a disc tear at the time [of the accident] which caused chemicals to get out". Mrs Stacey put to him that he did not know whether this is what had happened and he responded that in the absence of other explanation that could be taken to be the explanation. Had there been no stenosis, the swelling consequent on injury might not have impinged on a nerve. However, stenosis meant that the available space was restricted, thus increasing the chance of a nerve being affected.

Causation: evidence and submissions for the defenders

[42] Mr Eljamel had been impressed by the genuineness of the pursuer's demeanour. That view was not affected by his findings in relation to the distribution of altered sensation. He regarded it as consistent with L5 involvement. The expert led by the defenders, Mr Epsley, was also initially impressed by the genuineness of the pursuer. In his report dated 10 December 2003, (number 7/19 of process), which, together with his other reports, he adopted when he gave evidence he stated that he had found no exaggeration or illness behaviour during examination. Mr Epsley repeated that position in his report dated 12 May 2005, (number 7/28 of process). He stated that he was convinced that the pursuer was not fabricating her symptoms. That said, as appears from these reports, Mr Espley was unable to explain the continuing level of alleged symptoms in terms of the physical effects of the reported accident. He was prepared to accept that initially the pursuer's coccygeal pain was caused by the accident but he could not understand why it was continuing or, as the pursuer reported to him, worsening. He pointed to findings which did not, in his opinion, correlate with the pursuer's complaints or which were otherwise inexplicable: glove and stocking (ie non-anatomical) distribution of altered sensation involving the lower thigh, calf, ankle and foot; normal findings on rectal examination (carried out on 14 June 2001) notwithstanding that if the associated nerves had been damaged there would have been a loss of anal tone; equal girth of the calf muscles and no inequality of shoe wear, despite reported inability to dorsiflex the left foot; exquisite tenderness over the midline lumbo-sacral operation scar; absence of local tenderness in the coccyx on examination on 26 November 2003 but otherwise on 21 April 2005, despite reported coccygeal pain (a finding which Mr Epsley accepted might have to do with the use of an analgesic). Like Mr Mr Eljamel, Mr Epsley was puzzled by the pursuer's report of altered sensation affecting the bowel and bladder.

[43] In cross-examination Mr Di Rollo pressed Mr Epsley as to his assessment of the pursuer as not fabricating her symptoms. He asked whether he wished to depart from what appeared in his reports on that point. Mr Epsley responded by saying that, in the light of having recently seen additional medical records, he did, although if he were to leave that material aside, he would remain convinced that she was genuine.

[44] Mr Epsley did not accept that the pursuer had a spinal stenosis or that she had suffered a disc prolapse. He relied on the report of the MRI scan by Dr Beggs, number 7/9/185 of process. However, he accepted in cross-examination that he was not in a position to challenge the account given in the discharge summary, dated 29 December 2000, following on the decompression carried out by Mr Eljamel (number 7/9/301 of process).

[45] When she came to make her submissions, Mrs Stacey commended the evidence of Mr Epsley. She was critical of the evidence of Mr Eljamel. She reminded me of how he formulated the case. He was unable to explain the bladder complaints or the problems in the saddle region. As she understood his evidence, he divided the other symptoms from which the pursuer suffered into two groups. The first group consisted of those which he claimed were directly associated with the accident but not with the pursuer's underlying spinal stenosis: back pain and pain in the coccyx. The second group consisted of those which he claimed were directly associated with the accident but also were to be attributed to the pursuer's underlying spinal stenosis: some back pain, the foot drop, numbness, and leg heaviness. In relation to the first group, Mr Eljamel had accepted that it would normally be anticipated that symptoms would resolve in 6 to 8 weeks from the date of the accident. If psychological factors were ruled out, in Mr Eljamel's opinion this was to be explained in terms of a complex regional pain syndrome resulting from a disc prolapse at the time of the original accident due to a muscular reaction to the fall and associated with a release of chemicals and irritation of nerve ends. However Mr Eljamel had conceded that he saw no evidence of disc prolapse or nerve compression at L4/L5 on the MRI scan. He had not found evidence of a disc prolapse when he had operated on the pursuer. He accepted that a significant disc prolapse would have caused more pain than the pursuer reported at the time of the accident. He had been unable to point to literature about nerves reacting in the way he had described. In relation to the second group of symptoms, Mr Eljamel was unable to be specific about the extent to which the stenosis had caused these symptoms as opposed to the accident. He had also conceded that if one had a stenosis then any activity of daily living might have brought on the symptoms and she would in any event have suffered the symptoms within 3 to 8 years. Mrs Stacey also criticised Mr Eljamel for failing to take a detailed account of the mechanism of the accident and for failing to report on what if any neurological testing he might have carried out. He departed from his original description of the accident as "bringing up" the symptoms associated with spinal stenosis.

Findings on injury and causation

[46] A starting point in the assessment of what injury the pursuer has established as having been caused by her accident is to recognise that it is common ground between the experts (although they differ in their reasoning) that many of her past symptoms and essentially all of her present symptoms cannot be attributed to the accident on 25 August 1998. Mr Epsley would not allow much more than pain in the coccyx extending for weeks rather than years (although he did seem to accept that there might be some cases of coccydynia which would only clear up over an extended period). Mr Eljamel did not suggest that the bowel and bladder symptoms had anything to do with the accident and he emphasised that the spinal stenosis that he considered he had identified pre-dated August 1998, as was the case with the degenerative changes that he described. While Mr Eljamel attributed the pursuer's foot, leg and back symptoms to a superimposition of the trauma of the accident on a pre-existing stenosis, and while he explained in cross-examination that he could not tell the cross-examiner what would have happened had it not been for the accident, he accepted as probable that because of the stenosis the pursuer would have experienced essentially similar symptoms before her sixtieth birthday and possibly by the time of her fifty fifth birthday, irrespective of the accident. It follows that on the available expert evidence I cannot find either the need for surgery or the foot, leg and back symptoms insofar as emerging after age 60 to have been caused by the accident. In relation to the foot, leg and back symptoms Mr Di Rollo made the concession, which on the evidence he could hardly withhold, splitting the difference between age 55 and age 60, that he was only claiming damages in respect of five years' symptoms (ie to age 57 years and 6 months or thereby).

[47] I am prepared to accept the pursuer as an honest historian in relation to her symptoms. There was nothing in the way that she gave her evidence which made me question her credibility. She made favourable impressions on Mr Eljamel and, at least initially, on Mr Epsley. In so approaching the pursuer's evidence, I have had regard to what Mr Epsley said in relation to the inconsistencies in the pursuer's presentation when it was tested by reference to the signs mentioned in the course of his evidence.

[48] I therefore accept the pursuer's account, which gets support in the medical records, of an onset of symptoms following on the accident. While not, of course, conclusive, that is at least suggestive that the symptoms resulted from the accident. Mr Epsley's evidence puts in issue why they should have been so enduring and, indeed, as severe as they were. I accept the assessment by Mr Eljamel, as the surgeon who decided to operate on the pursuer on 23 November 2000, that prior to the accident the pursuer had a condition of stenosis affecting the space at the L4/5 level. While I would regard Mr Eljamel's explanation of how the pursuer's accident brought about the symptoms of which she complained, to be speculative, I did give weight to his acceptance, which I took to be based on his experience of other cases, that at least some of the pursuer's symptoms could be attributed to the accident. That a not insignificant trauma should result in persisting pain in the back and leg by reason of the irritation of tissue in an area where nerves were already potentially compromised by stenosis and degenerative changes does not seem so implausible even if the precise mechanism is unknown. Now, Mr Eljamel did put forward a mechanism. If the pursuer's reported symptoms are put to one side, the suggested mechanism was unsupported by other evidence. I have described it as speculative and I would not regard it as proved, but I am not in a position to reject it entirely. Mr Epsley, for his part, had been prepared at least initially to take at face value the pursuer's account of ongoing pain. Looking at all the evidence I find that the pursuer has established as a matter of probability that her fall on 25 August 1998 resulted in the onset of back pain, heaviness in the leg and foot drop but that essentially similar symptoms would have emerged no later than five years later irrespective of whether the pursuer had had an accident. I do not regard her operation as a consequence of the accident. Neither do I regard as a consequence of the accident the symptoms of which she complained but which could not be related to her fall by either of the medical experts.

Quantification of damages

[49] Mr Di Rollo invited me to assess solatium at £15,000 under reference to the decision of Lord Hardie in Miller v Lothian Primary Care NHS Trust, 1 July 2004, unreported, and Lord Menzies in Emslie v Bell, 12 August 2004, unreported (in each of these cases the award was £12,000). Mrs Stacey, referring to the English Judicial Studies Board guidelines, allowed no more than £7500 on the basis that this was to be regarded as a case of soft tissue injury (including disc prolapse) from which a full recovery had been made within five years without surgery. Regard has to be had to the evidence of Mr Eljamel, which Mr Di Rollo accepted, that irrespective of any accident, the pursuer would have gone on to suffer similar symptoms at a date in the relatively near future (taken as five years on from August 1998). What I am therefore called upon to do is to make an award to compensate pain and suffering over a limited period of time, albeit that the pursuer has been conscious of symptoms continuously since her accident. In that respect the present case is comparable to McCarvel v Strathclyde Fire Board 1997 SLT 1015, a decision of Lord Macfadyen which is mentioned by Lord Menzies in Emslie v Bell supra. In McCarvel the award was £5000. Precision is impossible but I have found the JSB classification referred to by Mrs Stacey to be closer to the present case than the decisions founded on by Mr Di Rollo because it is only some of the symptoms complained of that fall to be taken into account and those for a period of no more than five years. I shall accordingly make an award of solatium in the sum of £7500. I shall award interest on that sum for the five years following the accident at 4 per cent and thereafter at 8 per cent. My arithmetic would suggest a total for interest to date of decree as approximately £3500 but in case I am wrong about that, in the event that the matter cannot be dealt with by agreement, the case will be brought out By Order with a view to my being addressed on the precise sum for which decree should be granted.

[50] I am grateful to counsel for providing calculations in relation to wage loss as this reduces my labour and the consequential likelihood of mistakes. Mr Di Rollo only sought five years' wage loss, for the reasons I have already mentioned. I have accepted that the pursuer was physically disabled from carrying out the duties of her employment by reason of her accident, five years prior to the date when she would otherwise have been compelled to give up work because of back and leg symptoms. I heard evidence which at least raised a question as to whether the pursuer might have given up nursing earlier than that. I have in mind the difficult and sometimes stressful nature of her duties, some of her colleagues' assessment of how well she performed these duties and her relationships with some other members of staff. The point is not taken by the defenders in their pleadings and was not pressed by Mrs Stacey. On balance, I have come to the conclusion that it would be speculative to proceed on the basis that, had it not been for her accident, the pursuer was likely to have given up work before becoming physically unable to continue. I therefore shall award damages on the basis of five years' wage loss. Counsel are agreed on the figure to within a few pounds. I mean no disrespect to the very careful defenders' calculation when I take the pursuer's total figure of £56,635 as representing past wage loss. There is, of course, no future wage loss. Again I have a doubt about the interest calculation. It appears to me that the pursuer is entitled to interest at 4 per cent for the first five years but at 8 per cent thereafter because as at that date she has suffered the full extent of the damage. However, I am prepared to be addressed on that and the arithmetic which might follow thereon in the event that parties do not agree the matter.

[51] The parties were agreed in terms of their Joint Minute that in the event of the pursuer being found entitled to an award under sections 8 and 9 of the Administration of Justice Act 1982 the amount thereof inclusive of interest should be £10,000

[52] As I have already indicated parties will have the opportunity to address me in relation to interest before I pronounce decree, if it is necessary for them to do so.