OUTER HOUSE, COURT OF SESSION [2007] CSOH 119 |
|
PD1051/04 |
OPINION OF LORD MACPHAIL in the cause GRAEME CARLING Pursuer; against W P BRUCE LIMITED Defenders: ________________ |
Pursuer: Ivey, Q.C., Wade; Lindsays,
W.S.
Defenders: Peoples, Q.C., Young; Brechin
Tindall Oatts
10 July 2007
Introduction
[2] I shall begin by describing the accident and setting out other facts which are not in dispute. I shall then discuss the credibility and reliability of the pursuer, the only witness whose veracity was criticised at the hearing on evidence. Thereafter I shall review the medical evidence and make findings as to the nature, extent and consequences of his condition. Finally I shall assess the damages.
The accident
[3] While
the trustworthiness of the pursuer's evidence was adversely commented on in
other respects, there was no dispute as to the reliability of his account of
the accident. It was clearly a very frightening experience. The accident
occurred on
[4] I am satisfied that the pursuer's account of the whole event, and his descriptions of what he was thinking at the time, are accurate. I am also satisfied, from the coherence and continuity of his account, that he probably did not suffer any loss of consciousness. When speaking of what occurred after the impact, he had some difficulty in breathing, and several times he raised his hand to his chest. He explained that when he tried to describe the accident he felt pains in his chest and he had problems with his breath: he had a clear picture in his mind and he relived it.
Other undisputed facts
[5] I
shall outline the material undisputed facts about the pursuer and his
post-accident condition, medical treatment and examinations before discussing
the criticisms of his evidence. He was
taken from the scene of the accident to
[6] I
shall discuss these injuries and problems in detail later. The basic facts are
as follows. The pursuer was a successful business man who was justly proud of
having raised himself from modest beginnings. He left school at 15 years of age
without any certificates. He described himself to Dr Hull, one of the medical
witnesses, as "a working class boy from Kirkton [in
[7] After the accident, there was a dramatic change. He found that he could not concentrate on his work, and had to give it up. His family found him difficult to deal with. He became aggressive towards them, verbally and on a few occasions physically. He was irascible, reclusive and emotionally isolated from them. He could not cope with the noise his grandchildren made. He spent most of his time alone upstairs, watching television and smoking and drinking. He began to drink and smoke to excess. He neglected washing, shaving and changing his clothes. If it was necessary for him to be taken anywhere by car, he was a very nervous and agitated passenger. He continues to behave in that way. His two sons, who were living at home at the time of the accident, tried to avoid him. They later left home. His wife left home for a time in 2003, but went back to the house every day to make sure he was eating and to try to look after him. She returned to live at the house, but she still goes and stays at her mother's house if she feels "it's getting too much." All these matters were spoken to in the unchallenged and acceptable evidence of the pursuer's wife, Mrs Margaret Carling, and his two sons, Graeme Carling Junior and Wayne Carling.
[8] The
details of the pursuer's contact with medical services and medical examiners
are as follows. In December 2002 his general practitioner, Dr Alexander Young,
referred the pursuer to the local community mental health team. In January 2003
he was seen on behalf of the team by Mr Stephen Martin, a clinical nurse
specialist in cognitive behavioural therapy (CBT). Mr Martin tried to treat the
pursuer with CBT, but did not succeed. The pursuer was admitted to
[9] Mr Martin, Dr Young, Dr Gilchrist, Dr Tait and Dr Hull were called as witnesses for the pursuer. Professor McMillan, Mr Taylor and Dr Livingston were called for the defenders. The reports by Mr Rickhuss and Professor Blair, as I have noted, were the subject of agreement by joint minute.
Credibility and reliability of the pursuer
[10] Although the veracity of the pursuer's account of the accident was not disputed, the defenders submitted that he had consciously exaggerated in his evidence on other matters and that he had been inconsistent in material respects when providing information to the medical witnesses. These are issues of importance, since those witnesses were agreed that they relied heavily on the accuracy of the information given to them by the pursuer when reaching their conclusions. It is therefore necessary to assess his credibility and reliability before considering the medical evidence.
[11] In attacking the credibility of the pursuer, the defenders relied on inconsistencies by the pursuer in his reporting of certain matters to the medical experts, and on a video-recording and observations of the pursuer which had been made without his knowledge by private investigators.
[12] First, in his reporting of the accident the pursuer gave the experts differing accounts as to whether he could recall the impact. He told Dr Gilchrist that he had recall of the impact (no. 6/1 of process, paragraph 1), which is consistent with his evidence in court. On the other hand he told Dr Hull that he was not able to remember the impact (Dr Hull's contemporaneous manuscript note of his interview, no. 6/24 of process, page 80, and his report, no. 6/3 of process, paragraph 10.04).
[13] The pursuer also gave inconsistent accounts of his suffering
from nightmares. In November 2003 he told Dr Gilchrist that he suffered from
nightmares but they were "usually about him rejecting his family and not about
the accident" (no. 6/1 of process, paragraph 6.1). On
[14] There was also an inconsistency as to whether in or about June
2004 the pursuer was able to go out of the house into the garden. Dr Hull,
having seen the pursuer on
[15] A further inconsistency was concerned with the pursuer's
suffering from diarrhoea. As I have noted, he went to see Dr Livingston on
[16] The pursuer also challenged certain statements attributed to him by the medical experts in their reports. Dr Livingston said in his report, in a narrative of what the pursuer told him at examination, "When Mr Carling did drive he experienced quite intense symptoms passing the accident site" (no. 7/18 of process, page 5). The pursuer denied that he had said that to Dr Livingston (notes of evidence, pages 106-107). Dr Gilchrist said in her second report (no. 6/29 of process, page 2) under the heading "Current reported physical problems", "He is aware that his right arm is not as it was and seems to have a degree of weakness. However as he never does anything, he never has to test it out by lifting anything." The pursuer denied making any complaint to her about his arm, and said there was nothing wrong with it (notes of evidence, page 201). Professor McMillan records, "He said he is in his house seven days a week and never goes out" (no. 7/19 of process, page 5). The pursuer denied that he told Professor McMillan that he never went out (notes of evidence, page 139).
I have already noted the pursuer's repudiation of the statement attributed to him by Mr Taylor about walking round the garden.
[17] A further apparent discrepancy is that on the one hand, the pursuer indicated in the witness box that he was not conversant with the medical witnesses' reports and was not involved in the preparation of this litigation (pages 186-188, 203-204); and that he avoided using the telephone because he did not want to talk to anyone (page 56). On the other hand Graeme Carling Junior said that while he, Graeme Junior, was looking after the litigation, the pursuer was given copies of all the correspondence and wanted to know what was going on. The pursuer would often telephone him and swear at him because he wanted some correspondence or because there was something he did not understand, to such an extent that Graeme Junior could not put up with it any longer, although at the same time the pursuer had a "couldn't care less" attitude (notes of evidence, pages 572-580). In addition, the pursuer noticed an error of fact in one of Dr Hull's reports (no. 6/30 of process) and caused his solicitors to draw it to Dr Hull's attention (notes of evidence, page 638).
[18] When determining what significance to attach to these matters, I accept that it would not be reasonable to expect meticulously consistent reporting from the pursuer. I am not inclined to attach importance to his differing accounts of his nightmares, but it is difficult to understand why he should have given two different accounts of whether he recalled an event as important as the impact. His evidence on that matter in court was acceptable, as I have indicated, and it is curious that he should have given a different account to Dr Hull. It is also hard to see why there should be differing accounts of whether he could spend time in the garden, and of whether he had diarrhoea as a side-effect of medication. Having heard the careful evidence of Dr Gilchrist, Dr Livingston, Professor McMillan and Mr Taylor in the witness box I consider it most unlikely that any of them recorded inaccurately what the pursuer told them. I accept the evidence of Graeme Carling Junior as to the pursuer's interest in this litigation and his use of the telephone. I find, accordingly, that all these considerations cause me to approach the pursuer's evidence with caution.
[19] In support of their contention that the pursuer had consciously
exaggerated his evidence the defenders relied on a surveillance video-recording
and observations made by private investigators on
[20] The defenders relied on the second video (no. 7/25 of process)
and on observations made by investigators on
[21] The investigators who were maintaining surveillance outside the
pursuer's house in Newtyle had no idea that he would be travelling to
[22] At
[23] At the airport the pursuer removed the luggage from the car, put it in a trolley and went to the check-in desks with it, carrying a shoulder-bag. He put the suitcases on the conveyor belt at the check-in desk, and after checking in, walked to the departure gate with Mrs Carling and Chelsea.
[24] The video is significant for this reason. It recorded events on
"39. There is no evidence that Mr Carling is exaggerating his difficulties in any purposeful way, and on balance of probabilities I do not think that he is exaggerating. However, this possibility cannot be excluded given that the disabling effects of the accident are much greater than would have been predicted, given his unusual presentation and given the litigation context."
Dr Livingston and Professor McMillan were shown the video. Professor McMillan was also shown the surveillance report. That additional material caused them to change their opinions.
[25] Dr Livingston accepted that it was very hard to judge a
person's mental state from such a video (notes of evidence, page 1138). He
said, however, that the video gave a different picture from that which the
pursuer had presented to him, which had been that the pursuer was avoidant of
his family, of car travel, noise, the telephone, social interaction and
stressful situations. The video showed the pursuer doing quite a number of
things which he had suggested were quite stressful for him. It would be hard to
imagine that
[26] Professor McMillan's views are summarised in his supplementary report (no. 7/27 of process):
"This is
somewhat different from what I had expected. He told me he tries to avoid
people as much as possible and seemed to avoid his wife in the house (Paragraph
17 in my report [no. 7/19 of process]). The surveillance report indicates that
he travelled by car from
During the video there were no signs of Mr Carling seeming anything but relaxed. In fact, he spent a relatively long day in Glasgow, much of the time walking about the streets. The disparity between the video/surveillance evidence, and my interview increases the inconsistencies between his presentation at interview, the seeming differences between neuropsychological assessments by Dr Gilchrist and myself (Paragraph 34), the severity of the injuries at the time of the accident and his apparently normal behaviour on the surveillance video.
The video tape and surveillance report cast doubt on whether Mr Carling was indeed suffering from post traumatic stress disorder at the time of my assessment and makes me think there is an element of purposeful exaggeration in his account of the persisting effects of the accident."
[27] In evidence Professor McMillan said that what was shown on the video was inconsistent with what the pursuer had told him of his problems (notes of evidence, page 854). "It didn't seem to me to be the same person that he had described in the interview" (page 856).
[28] Dr Hull, on the other hand, did not consider that there was any inconsistency between what was shown on the video and what the pursuer had reported to him. He considered that there was "a lack of almost due care towards the granddaughter" and his immediate thought "was actually child protection, should he have been allowed to have his granddaughter with him" (pages 576-577). He appeared to be distracting himself from difficult thoughts. His intolerance to noise was to sudden unexpected noise (pages 577-579). Dr Hull's overriding impression was of watching some one with a chronic mental illness (page 587). A sufferer from PTSD could overcome his avoidance of doing something if it was absolutely necessary for him to do it (pages 572-573, 583-584).
[29] It is also necessary to take into account, when assessing the significance of the video and surveillance report, that the medical witnesses had not previously detected any evidence of exaggeration on the part of the pursuer. Dr Hull had tested the pursuer for exaggeration and malingering (pages 497-499, 613-615). No such evidence was found by Dr Young (pages 26-27). Nor did Professor McMillan find such behaviour in his first report, quoted above, although he was careful not to exclude it as a possibility. Mr Taylor felt there was no evidence to suggest that the pursuer was exaggerating his symptoms (page 947). Dr Livingston thought there was nothing to suggest that the pursuer was not trying when he performed the various tests set for him (page 1111).
[30] In addition, it is necessary to consider whether the pursuer had any reason to exaggerate in his descriptions of his condition. The only witness who gave evidence with any bearing on this question was Professor McMillan, who suggested it was possible that the pursuer might be exaggerating for financial gain. He was careful to explain, however, that it would not simply be the case that the pursuer had decided to give up work and obtain money by pursuing a damages claim. He said, "Well I think it's more complicated than that. I think Mr Carling has suffered from PTSD and I think that he has abused alcohol and I think there is an element of elaboration" (page 886).
[31] In my opinion that response by Professor McMillan encapsulates the true position. I do not think that the pursuer in his reporting of his symptoms to the medical witnesses or to the Court was motivated by thoughts of giving up work and obtaining damages instead. There is acceptable evidence from the pursuer and his sons that he was a man who enjoyed his work. The pursuer also gave evidence that after the accident he wanted to get back to work, and there is evidence to the same effect from his general practitioner, Dr Young; the clinical nurse specialist in CBT, Mr Martin; Dr Gilchrist and Dr Hull. I am satisfied that he was anxious to return to work, and that he became frustrated when his condition failed to improve. His frustration led him to take a despondent view of his state of health, and to express himself from time to time in terms that were over-emphatic and too extreme to be entirely accurate. I believe, however, that he was telling the truth as he saw it and I do not consider that he was trying to deceive the doctors or the court.
[32] I am nevertheless satisfied that there are obvious discrepancies between what he reported to Dr Livingston and Professor McMillan and what is recorded on the video and in the surveillance report. I accept the evidence of Dr Livingston and Professor McMillan as to the existence of inconsistencies, and I an unable to accept the interpretations to the contrary in the evidence of Dr Hull. I have declined to follow Dr Hull's views on this point with reluctance, because in my opinion he was in many respects an admirable witness. His special interest is in post-traumatic reactions and he spoke from very extensive experience of PTSD. His evidence was in general lucid, authoritative, and properly subtle and nuanced. In addition, he had the advantage of speaking of the pursuer as a patient who had been under his care. I have reached the conclusion, however, that his interpretation of the video was unduly favourable to the pursuer, and the views of Dr Livingston and Professor McMillan should be preferred. Despite the fact that exaggeration had not been suspected by any of the medical practitioners who had had dealings with the pursuer before the date of the video, the video in my opinion calls in question the reliability of the information which he had given them. There was general agreement that the experts relied on the information provided to them: Dr Gilchrist (page 207), Dr Hull (pages 613-614) and Dr Livingston (pages 996-997) all spoke to that effect.
[33] In view of my findings as to the significance of the video, together with what I have found to be a need for caution in the assessment of the pursuer's evidence owing to the other discrepancies already discussed, it is in my opinion prudent to discount the more emphatic and absolute expressions used by the pursuer in the accounts of his condition which he gave to the experts and in the witness box.
The pursuer's condition
PTSD
[34] While I have reached that view as to the credibility and reliability of the pursuer, there remains on the other hand the acceptable evidence of Mrs Carling and the pursuer's sons Graeme Junior and Wayne relative to the undisputed facts which I have already set out. Those facts were among the information which the medical witnesses had before them when they concluded that the pursuer suffered from PTSD. Dr Hull, who is an expert in post-traumatic reactions and had treated the pursuer, had no doubt that he suffered from PTSD, the degree of which he assessed as severe to profound. Mr Martin, who also treated the pursuer, also had no doubt that he was suffering from PTSD. Dr Gilchrist was of opinion that PTSD was likely to account for most of the pursuer's difficulties (no. 6/29 of process, page 6, paragraph 8.8; notes of evidence, page 181). Dr Livingston's final view of his diagnosis of PTSD, after he saw the video, is not entirely clear. I accept, however, Professor McMillan's final position, notwithstanding his interpretation of the video, that the pursuer nevertheless suffered from PTSD. Having weighed all these considerations I have concluded that the pursuer does suffer from PTSD. However, in view of my reservations as to the reliability of some of the more extreme information given by the pursuer to the medical witnesses, I consider that it is proved on a balance of probabilities that the degree to which he suffers it is between moderately severe and severe: it is not proved that it is severe to profound.
Abuse
of alcohol
[35] A further matter which must be taken into account in assessing the pursuer's condition is his abuse of alcohol since the accident. The pursuer's counsel submitted that the pursuer's alcohol consumption and his PTSD were "enmeshed" as part of the whole psychiatric condition he suffered. The defenders' counsel, on the other hand, submitted that available treatments for PTSD had not worked because of the pursuer's obstinate and unreasonable attitude to controlling his drinking. He therefore should not be treated as a person who, by reason of injury, would be unlikely to work again. It is accordingly necessary to examine the material evidence in some detail.
[36] As I have narrated, before the accident the pursuer drank at
weekends, but he did not drink during the week. His post-accident abuse of
alcohol appears to have taken the following course. In January 2003 Mr Martin,
the clinical nurse specialist in CBT, began to treat the pursuer with cognitive
behaviour therapy. The pursuer did his best to co-operate, but he was impatient
and was frustrated that the treatment was not producing rapid results. He did
not accept that he had PTSD (pursuer's evidence, pages 32, 37, 39). Mr Martin
gave convincing evidence that the pursuer was trying too hard and had an
unrealistic expectation of the time it would take for him to regain control of
himself and his situation. He was very self-critical (pages 312, 313). He did
not accept that he was suffering from PTSD and began to drink heavily. The pursuer said that he began to do so about
the end of 2002 and January 2003 (page 31). He was then admitted to
[37] The pursuer nevertheless continued to drink. When he saw Dr
Gilchrist in November 2003 he told her that he had been drinking very heavily
but had been drinking less recently, although he had relapsed slightly over the
previous two weeks. He had been drinking one bottle of whisky through the
night. From December 2003 he reduced his drinking to one bottle of wine per
night. He was also smoking 50 cigarettes a day. Dr Hull recorded in the same
report, "His alcohol intake plus cigarette usage combined with his lack of self
care, are described by Mr Carling as an attempt to shorten his life span
without actually committing suicide" (page 5, paragraph 5.00). He was still
drinking a bottle of wine a day when he was examined by Mr Taylor on
[38] In a letter of 31 May 2005 Dr Hull wrote, "since he got an
interim payment he has once again begun to drink heavily seeing his family's
financial security as now having been achieved to some degree and he can
retreat into alcohol to numb himself from the fear, hopelessness and tendency
towards rumination over his trauma" (no. 6/30 of process, paragraph 6.01).
Having seen the pursuer on
[39] Dr Gilchrist saw the pursuer on
"2.6 Mr Carling continues to drink alcohol to excess. He said he is currently drinking about a bottle of vodka a day and/or sometimes whiskey or beer. He is fully aware that this is excessive and is likely to harm his health in the long term but does not feel concern about this. He said he has tried to follow all of the treatments he has been given since the road accident, but has not seen any 'real improvement'. He strongly believes that without the alcohol he would 'not be here' (alive). He said he tries to drink enough alcohol to stay in a blurred condition, which lessens the pain of how he feels. He is drinking every day and certainly smelt strongly of alcohol at interview."
[40] In the witness box on 8 and
[41] There were passages in the medical evidence which discussed the relationship between PTSD and the consumption of alcohol. Mr Martin said that a patient with PTSD frequently "self-medicates" with alcohol (page 358). Dr Gilchrist said it was likely that a patient such as the pursuer would self-medicate with alcohol (page 135). It was something he was driven to do "because from his perceptional point of view he sees benefits" (page 148). The alcohol abuse stemmed from trying to deal with the symptoms of PTSD (pages 367-368). Professor McMillan said that treatment for the PTSD and the alcohol abuse would be interwoven, because the pursuer was "most likely self-medicating himself with the alcohol and because of the psychological problems, and so there may need to be a package" (page 910).
[42] Dr Livingston said it was not uncommon to find that people with PTSD drank excessively to try to sedate themselves (page 1121). One would assume that a reasonably intelligent person would realise he or she was drinking far too much, which was not helping him or her in the long run, and that he or she needed to do something about it; but he did not get the impression that the pursuer had carried out "that important piece of introspection" (page 1123). In theory there was nothing stopping an individual cutting down or stopping (page 1124). The success rates in dealing with people with alcohol misuse problems were pretty poor (page 1125). The pursuer was not physiologically dependent on alcohol (pages 1125-1126). Drinking alongside the PTSD had an adverse impact upon the prognosis. But a logical way forward would be for the doctor to offer to help the patient to deal with the symptoms the patient was trying to treat with the alcohol (pages 1126-1127). There was a limited prospect of cognitive therapies working if the pursuer was simply self-medicating his anxiety with alcohol (page 1074). The consumption of excessive amounts of alcohol got in the way of therapy, reduced motivation and was an important factor in impeding progress (page 1076). The pursuer's drinking aggravated the situation by destabilising his mood and having an adverse impact on temper control (pages 1062-1063).
[43] Dr Hull said that there was a fair degree of evidence that post-traumatic stress increased a person's risk of drinking excessively (page 471). The pursuer used alcohol both to self-medicate and to self-harm (page 506). His condition improved quite markedly when he had a trial without excess alcohol and he became aware of the detrimental effects of alcohol (page 532; no. 6/30 of process, paragraph 7.01). It was unrealistic and simplistic merely to advise the pursuer to stop drinking. The interaction between PTSD and alcohol was very complicated. The PTSD had to be treated as the primary disorder, but that could not be done without paying attention to the alcohol abuse. Treatment of people for both disorders at the same time was sometimes successful and sometimes not so successful: it was a very complicated business. For the pursuer the alcohol and the PTSD were meshed with each other: it was difficult to see whether the PTSD had caused the alcohol problem or whether the traumatic event had caused both. The pursuer was psychologically dependent on alcohol because he believed it made a difference (pages 536-541). Dr Hull had worked long and hard in looking at the pursuer's alcohol problem and had encouraged him to move to a position where he was willing to make a change in his drinking (page 719). He had been able to attempt to control his drinking, but he could not persist. The reasons why he had resumed his drinking were multifactorial (pages 715, 720, 723-724).
[44] The defenders argued that if the Court was satisfied that there had been conscious exaggeration, the situation of uncertainty was further aggravated by the pursuer choosing to drink very heavily since shortly after the accident. The evidence disclosed that PTSD was a condition that could be treated effectively only if the patient was prepared to curtail his drinking. The pursuer's evidence confirmed that he knew that perfectly well. He was not physiologically dependent on alcohol. It was his obstinate and unreasonable attitude to reducing his very heavy alcohol consumption which had caused the available treatments for PTSD not to work. It would therefore be wrong in principle to regard him as someone who, by reason of injury, would probably not work again and could not be successfully treated despite his best efforts and those of his treating doctors. If the Court was satisfied that the pursuer continued to suffer from some degree of PTSD, an award of damages should be discounted to reflect the likelihood that control by him of his drinking would have enabled him to receive more effective treatment for PTSD with the real prospect of such treatment resulting in his being able to work for at least some of the period since the accident.
[45] As I have explained, I do not think that the pursuer's exaggeration of his symptoms was deliberate or "conscious", but that does not affect the essence of the defenders' submission. I have some sympathy with the submission because in the passages of his evidence quoted above the pursuer gave the impression that his heavy drinking was a matter of choice. Dr Hull said at one point, "he has chosen, I suppose lifestyle choices, that would shorten his life span, and that would include his drinking, his smoking" (pages 459-460). It might therefore appear prima facie that in resorting to drink the pursuer had made a free, deliberate and informed decision which was of such substantial importance that it negatived a causal connection between the accident and the gravity of his present condition. I have reached the view, however, that such an appreciation of the situation would be incorrect. I am persuaded, primarily by the evidence of Dr Hull, that heavy drinking is a condition which may reasonably be expected to accompany PTSD. Dr Hull said that it was very rare to see any patient after trauma having only PTSD: that was the exception which proved the rule. The co-morbid conditions with PTSD ranged from depression to other anxiety disorders, substance misuse problems, alcohol problems and behavioural problems. There was a fair degree of evidence that post-traumatic stress made people vulnerable to drinking and increased their risk of drinking excessively. The co-morbidity of PTSD and alcohol misuse or alcohol dependence varied in studies between 30 per cent and as high as 78 per cent in some studies, the latter relating to combat veterans in America (pages 471-472).
[46] The other medical witnesses to whose evidence I have referred above also made it clear that it was not uncommon to find that people with PTSD drank to excess. Having regard to all that evidence, and in particular to the evidence of Dr Hull who spoke not only with authority as an expert in post-traumatic reactions but also with experience of treating the pursuer, I find that alcohol abuse or alcohol dependence is not an abnormal accompaniment of PTSD, and that the pursuer in resorting to heavy drinking should be regarded as still reacting to the accident and not as being in control of his situation and free to act otherwise. I have concluded, accordingly, that the pursuer's resorting to alcohol and his failure to reduce or discontinue his drinking should not count against him in the assessment of damages.
Brain injury
[47] The pursuer avers that in addition to suffering PTSD he sustained long-term damage to the frontal area of the brain. The defenders, on the other hand, aver that he sustained a minor head injury and that subsequent investigations by scanning showed no significant structural damage to the brain caused by the injury.
[48] The medical witnesses expressed differing opinions on this matter. Dr Gilchrist carried out a number of tests when she examined the pursuer. They showed that he had problems with attention processing and executive functioning. She concluded that his presentation was fully compatible with a head injury which had damaged the frontal areas of his brain by bruising or shearing of small nerves. Professor Blair's finding that the pursuer had lost his sense of smell was consistent with such an injury (report, no. 6/31 of process, paragraph 7.2) Such an injury could not be ruled out by negative scan results because it would not necessarily appear on a scan (Dr Gilchrist's report no. 6/1 of process, paragraphs 8.14, 8.18). It was not possible to be 100 per cent certain, but on balance it was her opinion that the pursuer had suffered minor but persisting damage (notes of evidence, pages 144-145, 180). Such damage would diminish the pursuer's prospects of recovery (page 176).
[49] Dr Hull did not claim any particular expertise in cognitive assessment, but from a clinical perspective, having reviewed all the information and having examined the pursuer's cognitive function, he considered that the pursuer showed many of the symptoms of frontal lobe syndrome. He considered that Professor Blair's report supported that view (pages 465-467, 483-485). Such organic damage made the prospect of effective treatment for PTSD slightly less than it would otherwise have been (page 729).
[50] Dr Tait considered that the pursuer's thinking and behaviour suggested damage to the frontal lobes of the brain as well as PTSD (pages 393-395, 400).
[51] Mr Taylor's view was that it was no more than a possibility, and not a probability, that the pursuer had suffered a degree of minor brain damage. He was not convinced that such damage had caused the pursuer's psychiatric problems, but he did not exclude the possibility that he might have suffered microscopic brain damage which in some way might be contributing to his psychiatric condition (no. 7/17 of process, paragraphs 11.1, 11.3; notes of evidence, pages 940-945).
[52] Dr Livingston did not consider that there was any major issue in relation to the pursuer's head injury (page 1041).
[53] Professor McMillan considered that the pursuer had sustained a very mild traumatic brain injury, and traumatic brain injury was not a significant issue (no. 7/19 of process, paragraphs 32, 40). There had been no neurological findings on brain scanning (notes of evidence, page 884).
[54] In my view the opinion of Dr Hull, which is supported by the evidence of Dr Gilchrist and consistent with Professor Blair's report, is highly suggestive. Having regard also to Mr Taylor's evidence, it appears to me that it would be unwise to exclude completely the possibility that the pursuer sustained a brain injury which resulted in frontal lobe syndrome. In view of the absence of supporting evidence from the brain scans, however, I have concluded that I should find that such an injury is not proved on a balance of probabilities. If I had found it proved, I would have taken account of Dr Hull's view and found that it made no material difference to the pursuer's prospects of recovery.
Other injuries
[55] There was no dispute about the pursuer's other injuries. At the time of the accident he sustained chest bruising and a minor head injury. After being taken to Ninewells Hospital and discharged on the same day, he spent six weeks bedridden at home suffering from chest pains. He also sustained a whiplash injury which caused him pain in his neck and shoulders. In addition, he had pain in his lower back and his left knee. The pain in his neck, back and left knee were persisting when he was examined by Mr Rickhuss in January 2004. Physiotherapy had not helped. He was very stiff and sore. His knee had given way on several occasions. Mr Rickhuss suspected that his back, shoulder and neck problems were unlikely to improve, whatever the treatment, but the knee might improve with further management. When Mr Rickhuss examined him on 5 August 2005, he was still suffering pain in his back, shoulder and knee. He was now in a chronic situation, where further intervention was extremely unlikely to make any difference to his condition (agreed reports, nos. 6/2 and 6/32 of process). When the pursuer gave evidence on 8 November 2005 he said that his neck was sore all the time. The pain in his back was manageable: he could walk a few miles, and he did not try to lift anything too heavy. His knee from time to time gave way when he put his full weight on it, particularly when he was going upstairs (notes of evidence, pages 18-20).
[56] The pursuer also lost his sense of smell as a result of the accident. He is unlikely to recover it. Since the senses of taste and smell are intimately linked, his appreciation of food and drink is markedly diminished. He is also unable to smell odours indicating potential dangers such as burning. His inability to smell pleasant odours results in a general decrease in his enjoyment of life. (Professor Blair's agreed report, no. 6/31 of process.)
Pre-accident medical condition
[57] The defenders made various averments about the pursuer's health in the years before the accident, to the following effect. First, in August 1985 he consulted his then general practitioner in connection with a back injury which he had sustained, causing lumbar strain. His present back and neck symptoms were only partly attributable to the accident. Secondly, in or about February 1993 he sought advice in relation to a complaint of indigestion and heartburn for which he was taking regular medication. He was advised that he was smoking and drinking too much, that his weight had increased and that he should alter his lifestyle. That advice was repeated by his general practitioner in August 1995. Thirdly, in September 1995, when he was unemployed, he was described as "very stressed".
[58] These averments as to pre-accident consultations were supported in evidence by reference to medical records the accuracy of which was not disputed by the pursuer. There was no evidence that his present back and neck symptoms were only partly attributable to the accident. The significance of the other entries is discussed in the following paragraphs.
Prognosis
[59] The pursuer avers, and has in my opinion proved, that his orthopaedic injuries are unlikely to improve. He also avers that there may be some limited improvement in his psychiatric condition but he will never fully recover. His mental powers are likely to be permanently reduced as a result of the injuries sustained. He will not regain his powers of concentration, and the mental agility needed to carry out any job. He is unlikely to hold down in the future a job similar to his pre-accident one.
[60] The defenders aver that the pursuer suffers from moderately severe to severe PTSD. I have found that to be proved. The defenders go on to say that in approximately 18 months' time (the record is dated December 2004) the pursuer is likely to be capable of a return to the employment market. The consequences of the accident for him have been psychological in nature and there is potential for him to recover.
[61] In evidence the defenders' position was supported to some extent
by Dr Livingston and Professor McMillan. Dr Livingston, having interviewed
the pursuer on
"With regard to the prognosis, I think it is unlikely that Mr Carling will be able to return to a senior management position for the foreseeable future.
[ . . . ] Realistically he is likely to require another 18 months or so of treatment before he would be able to return to the employment market. At that stage I would anticipate that he would be capable of a very undemanding job which could be his first venture back into employment. I have advised Mr Carling that he should not dismiss this approach as he could at that point enter a virtuous circle recovering his self-esteem in the process of once again becoming a breadwinner. Much of this depends on whether Mr Carling is able either to limit his alcohol consumption or preferably to be abstinent from alcohol. This is essential. If he continues to drink at the present rate [15 to 20 units per day], he is likely to become alcohol dependent, an outcome which would have a markedly adverse effect on the prognosis."
In the witness box Dr Livingston added that the reality in dealing with people with substance misuse problems, including alcohol, was that it was very, very difficult and the success rates were poor (page 1125).
[62] When Professor McMillan saw the pursuer on
[63] On the other hand, Dr Gilchrist in her report of
"8.14 At present, and without the successful outcome of intervention, it is my opinion that he is not able to return to his old type of work or indeed to obtain and hold down any paid employment. His current difficulties of impaired concentration, impaired cognitive functioning, marked irritability, noise intolerance, inability to cope with distraction or interference, heavy drinking, poor timekeeping and social blunting, would also make attempting to retrain impossible for him. I feel it is understandable that Mr Carling does not feel he could cope with a simple and repetitive work situation, given the challenging and demanding line of work he used to have. It is therefore my opinion that without an improvement in his psychological state, Mr Carling is unfit for employment."
Dr Gilchrist's evidence was to the same effect (pages 183-185).
[64] Dr Hull agreed that the pursuer could not cope with a menial job because that would be detrimental to his self-esteem. In any event his physical condition would prevent him from doing manual work. An employer would not give him an interview. Work would involve him in encountering intrusive phenomena which he tried to avoid (pages 509-512, 556-558; report, no. 6/30 of process, paragraphs 2.00, 17.01). Dr Hull did not see the pursuer returning to employment at all: he found it difficult to see how the improvement required could be attained. All the treatments that were evidence-based had been tried and had proved unsuccessful, even though he had been given medication above the normal limits. The pursuer had tried really hard, but despite all that effort he was really no further forward. In the future, said Dr Hull, there may be new treatments, and the pursuer would be a very reasonable candidate to try anything new that there was evidence for. "And secondly, I'm not very good at giving up and Mr Carling is one of the few patients I've seen that I haven't been able to help, and I do think if he felt he wanted to give it another shot I'd be very happy to go with that." (Notes, pages 519-530.)
[65] The defenders argued that on the evidence it could not and should not be assumed that the pursuer by reason of injury in the form of PTSD would not return in any capacity to employment. I consider, however, that Dr Hull's views on this matter are particularly persuasive and authoritative. I attach weight to his evidence, for the reasons already stated. I accept all that he has said above. In addition, none of the other witnesses holds out any hope of employment for the pursuer unless he reduces or discontinues his consumption of alcohol; and I have found above that for the pursuer to do so would be a very difficult matter. I accordingly find that there is no prospect of the pursuer's returning to work unless in the future some new treatment is tried and is successful. In view of Dr Hull's expertise and persistence, however, that is a prospect that should not be left entirely out of account in the assessment of the loss of future earnings.
[66] The defenders also argued that it could not be assumed that the pursuer would not, but for the accident, have succumbed to disabling anxiety. The argument ran that there was evidence to the effect that by reason of his personality, described by Dr Gilchrist as a Type A personality, the pursuer would be more vulnerable or susceptible than normal to heightened anxiety and resulting periods of disability if, for any reason, some event reduced the degree, or his perception of the degree, to which he was in control of his own destiny (pages 81-82). There was also evidence that one of the pursuer's older brothers had suffered from a depressive illness. The pursuer had had an episode of stress in 1995 when changing jobs that had been sufficiently serious for him to attend his doctor. Dr Young, his present general practitioner, had said that the pursuer was not a frequent attender: that might suggest that the 1995 episode was a significant one and an indicator of his vulnerability. There was also evidence that, from a medical standpoint, the pursuer led an unhealthy lifestyle and had been advised to reduce his drinking and to lose weight. Having regard to these factors, the Court should adopt a conservative approach when arriving at any figure for future loss of earnings or future disadvantage to earning capacity by reason of the accident.
[67] I do not consider that Dr Gilchrist's evidence can bear the weight that the defenders sought to place upon it. I do not think that the fact that one of the pursuer's brothers had a depressive illness is helpful when assessing what the future might have held for the pursuer. Nor do I consider that the episodes in 1995, some seven years before the accident, throw any light on that subject. There is no evidence that the pursuer's health had been a cause for any significant concern since that time.
[68] I find, accordingly, that the pursuer's prognosis is as I have stated it above. There is no likelihood of his condition improving unless some new form of treatment is discovered which produces a positive result.
Damages
[69] The pursuer claims damages for past and future loss of earnings, solatium, and services provided by his wife.
[70] The following figures are agreed by joint minute. First, if the pursuer had remained in his pre-accident employment, he would have received in such employment, from the date of the accident to the date of the commencement of the proof (8 November 2005), £156,000 net in respect of his combined salary, pension payments, discretionary bonuses and car and fuel benefits, inclusive of interest. Secondly, if he had remained in employment, he would currently be receiving £51,140 net per annum in respect of his combined salary, pension payments, discretionary bonuses and car and fuel benefits. Thirdly, the value of the pursuer's claim under section 8 of the Administration of Justice Act 1982 in respect of past and future care, inclusive of interest, is £25,000.
[71] It was agreed at the Bar that the pursuer's loss of earnings to
the date of making avizandum (
[72] It was further agreed that I should record in this Opinion that for the purpose of benefit recovery, no damages are awarded in respect of cost of care or loss of mobility.
[73] As to the pursuer's loss of earnings to date, upon the view I
have taken of the effect of the evidence I cannot support a suggestion made by
the defenders that the pursuer could have returned to work by about March 2006,
after 18 months of treatment. I do not consider that the pursuer should have
returned to work before the date of this Opinion. I shall accordingly award the
agreed figure of £207,087 with interest thereon at the rate of four per cent
per annum from
[74] As to future loss of earnings, the pursuer was born on
[75] As I have found above, however, it is necessary to take account of the prospect, which is not negligible, that some new treatment might be discovered which could result in the pursuer's being able to return to some form of employment. In view of that, I shall reduce the multiplier to 8.5. The figure for future loss of earnings therefore comes to be £51,410 x 8.5, which is £436,985, or £437,000 in round figures.
[76] As to solatium, the pursuer's counsel contended for a figure of
£75,000, of which £50,000 should be attributed to the past. The defenders did
not accept that the pursuer had established that he was continuing to suffer
from PTSD with little or no prospect of his disorder improving, but on that
hypothesis they argued for a figure of £30,000 to £35,000. The pursuer's
advisers' statement of the valuation of his claim (no. 11 of process) had
stated a figure of £45,000, which was closer to the relevant figures in the
Judicial Studies Board (JSB) Guidelines at page 813 and to the awards made in Cooper v Reed and Atlas Radio Cars (2001), Kemp & Kemp, C2-016 and Mizon v Comcon International Ltd (1999), Kemp & Kemp, C2-003.
Reference was also made to two awards by the Criminal Injuries Compensation
Board (as it then was): Calvert [2000]
CLY 1539 and George [2002] CLY 3517.
[77] As I have indicated, I have accepted that the pursuer continues
to suffer from PTSD to a degree which is between moderately severe and severe,
but I consider that the prospect of his making some improvement in the future
is not negligible. The JSB Guidelines for PTSD give ranges between £36,650 to
£58,500 for "severe" cases and between £13,500 to £33,800 for "moderately
severe" cases. I assume that "severe" cases include cases which would fall
within Dr Hull's description of "profound" which I have held not to apply to
the pursuer. I also take into account the pursuer's other injuries. Having
considered the matter in the light of the JSB Guidelines and the first three
cases cited above, I have reached the conclusion that an appropriate award in
this case would be £40,000, of which one third, or £13,350 in round figures,
should be attributed to the past. Interest will run on the latter sum at four
per cent per annum from
[78] The award in name of services is agreed at £25,000, as noted above.
Past earnings loss: £207,087
+£14,776
Future earnings loss: £437,000
Solatium: £42,527
Services: £25,000
Total: £726,390
Interest will run on the sum of
£207,087 at four per cent per annum from