Scottish Court of Session Decisions

"On or about 26 November 1998 the pursuer was employed as a leading fire fighter by the Ministry of Defence ("the defenders") at RAF Leuchars. His duties included transferring equipment from one fire tender ("the first tender") to another fire tender ("the second tender"). Both tenders were Mark 9 tenders. No instructions were given by the defenders to their employees as to the system to be adopted for transferring equipment between tenders. The transfer of equipment from the first to the second tender took place at the same time as the water tanks of the second tender were being filled with water. There was no gauge on the second tender to indicate when the water tanks were full. The only way of knowing when the tanks were full was when water overflowed from them. As a result of said water filling operation the ground was covered with water. The pursuer required to transfer breathing apparatus from the first to the second tender. Said apparatus was situated in the rear cab of the first tender. The apparatus weighed approximately 13 kilograms. It was bulky. The pursuer stood on the foot plate of the first tender. Said foot plate was approximately one metre from the ground. It was wet. The soles of the pursuer's boots were wet. The pursuer reached into the cab and lifted the apparatus with both hands. As he was about to descend from the tender his foot slipped causing him to fall backwards and land heavily on his back. As a result of the accident he suffered the loss, injury and damage hereinafter condescended upon. The accident was reported to the defenders."

The evidence about the accident

"Record the statement as nearly as possible in the customer's own words. Read it out to the customer for agreement and then ask him or her to sign it below."

The first part of the statement read as follows:

"On the above date whilst working as a firefighter at RAF Leuchars I slipped about 8-10' down steps whilst wearing the breathing apparatus on my back. I tried to get up but couldn't move due to pain in my back. I was taken to Ninewells on a backboard and kept in overnight. I was x-rayed and told I was OK. I was bruised and swollen where the cylinder had been forced against my back at the bottom."

At the foot of the page there appeared in type the words "I agree that what is written above is a correct record of my statement", below which appeared the signature "Danny Rooney" alongside the date 22.5.00.

"On the above date I was part of the fire crew covering RAF LEUCHARS when due to the unservicabilty (sic) of one of the fire vehicles we were ordered to transfer fire equipment between vehicles before the next aircraft movement. While carrying out this task I fell backwards from a Mk 9 fire vehicle while wearing a breathing apparatus onto the concrete hardstanding.

I tried to get up off the ground with the help of my colleagues but couldn't do so and it was very hard when I tried to move. So I had to stay on the ground which was very wet due to the overflowing of the serviceable (sic) vehicle, an ambulance was called and I was placed on a backboard and transferred (sic) to hospital in Dundee and kept in overnight."

He said that that was incorrect and that he had made a mistake there. That was not what he told Dr McGregor and that was not what had happened. He was there and he knew what happened to him. He was not going to put on breathing equipment just to transfer it to another vehicle. He did not dispute that he was walking backwards and that he slipped and fell. The note from the medical officer at RAF Leuchars to Ninewells Hospital (7/2 of process, p5) stated:

"Fell approx 4 ft from fire truck (walking backwards) onto concrete."

"As you are no doubt aware, our client is employed by your insured as a civilian fire fighter based at their RAF Leuchars, Fife base. He sustained an accident in the course of his employment on 26.11.98 at approximately 4 pm.

In accordance with issued instructions, our client was to assist in the transfer of firefighting equipment from one fire engine to another, whilst at the same time the fire engine in question was being filled up with water from an outside hydrant. Our client was carrying out such duties at the time as part of an 11 man crew, and whilst in the course of transferring the breathing apparatus from one engine to another by means of loading this on his back, he slipped heavily on a sheet of ice which had formed on the tarmac as a result of water overflowing from the fire engine which was being filled with water."

He stated that he did not know who wrote the letter, but that was not what happened. He only knew that he was trying to do his job when he slipped and fell: that's what happened.

"Whilst removing CABA cylinder from rear door of Mk 9 fire vehicle, slipped backwards off step due to footwear being wet falling onto back causing injury."

The information he got was from "the guys who attended him on the ground". As far as he was aware nobody at all witnessed the accident. He surmised that the pursuer was a possible source of information.

Discussion and conclusion about the facts of the accident

Evidence of injury

"Normal tone and full range of movements both arms and legs."

He said that was not correct. He was also referred to an entry in the nursing records for 26 November at 2200 hours which noted: "Refused any analgesia at this time." He said he was not denying that that happened but he had no knowledge of having refused painkillers. He had a memory of his wife leaving and his then falling asleep. He was in pain.

"Thank you for your letter concerning this pleasant 36 year old man. For the past two years he has been suffering from episodic rectal bleeding on defecation and 'constipation'. His constipation is actually difficulty initiating defecation and paradoxically he has up to 4 loose bowel actions a day."

He accepted that at that time he had loose bowel motions, but he had not had them for two years: they were sporadic or intermittent. He did not suffer from constipation and loose bowel movements all the time and he was very fit.

"I saw this patient for review today. He is still having some problems initiating defecation and then with frequency of defecation after this. He gets some discomfort in the peri-anal region after his bowels have moved a few times. I note that his recent barium enema was normal."

He stated that he did not accept that he had the two features of constipation and loose motions before the accident.

"Fell a week ago - still some muscular spasm - wait another week. (Sign for sickness certificate) - 8.12.98 -'back injury'.

Still gets the mushy stool problem. Try celerac and review."

The entry for 29 December 1998 reads:

"Still having the difficulty initiating defecation. Then the flood of stool. Has to go back x 3. Refer GE clinic (away January)."

He accepted that these entries did not mention loose motions and reiterated that that was because at that time he did not want to tell anyone: he just wanted it to go away so that he would get back to his life again. He was sent to St Andrews Memorial Hospital and was referred by the Dr John Wilson, Consultant Physician, to Mr David Bartolo, Consultant Surgeon at the Royal Infirmary of Edinburgh. In a letter dated 12 August 1999 to Mr Bartolo (7/8 of process, p 107) Dr Wilson wrote:

"I wonder if you might be kind enough to see this man - he is a 39 year old fireman who for the last 8 or 9 years has had some difficulty in initiating defecation. On occasions he may need to use his finger to assist. The stool itself is soft, and he has found a degree of relief with the use of Fybogel which he has been using for the last couple of years. ... there really are no other symptoms - he is fit and well, does not smoke and takes only occasional alcohol, and has previously been quite well.

Physical examination is normal and I enclose a note of his sigmoidoscopic findings.

It is not clear why he has this but I wonder if there is some anal sphinteric problem, and whether you would be prepared to investigate further."

He accepted that the first record of his incontinence problem was in his GP's note of 6 October 1999, which reads:

"Having marked difficulty at work. Fireman at Leuchars. When can't get access to toilet on call he can be incontinent of faeces. Getting extremely worried and scared by it. Stayed off work from last week. 22 years in Fire Service."

The entry also noted that he was given a sickness certificate for two weeks. He was adamant that his incontinence started on the Saturday after the accident and that he would never forget it.

"John Wilson recently referred this man to you and he has an appointment for your clinic in January of next year. He works as a fireman at RAF Leuchars - a job he has done for 22 years. Naturally he has to participate in emergency call-outs and on two recent occasions he could not attend at the right time because of the need to defecate. When he did have to then attend an emergency he ended up with faecal soiling on two occasions. Naturally he found this extremely distressing and his job is in jeopardy as a result."

He accepted that that letter read as though his incontinence problems were then recent but repeated that once he had had his accident he did not want to tell people. He began to weep and said "I've done wrong, but I'm sorry".

"Dear Sheryl

Firstly, I would like to thank you and your staff for the help I received when I was unwell in your office last Tuesday. Although the incident was very distressing it would have been much worse without your and Steve's help.

I am enclosing a copy of the Consultants (sic) medical report confirming my present medical condition was indeed caused by an industrial accident. Could you please arrange for corrective pay action to be taken on my behalf?

It is with deep regret that I must now request that due to my health problems I wish to apply for medical retirement at the earliest possible date.

I feel I must now take the advice of my GP and Consultant in that I will never be physically fit to return to Fire Service Duties and the sooner I accept that the easier my depression problems will become and I can then stop taking the medication. I can then plan some sort of life in the future."

The pursuer was later retired on ill health grounds. The medical retirement certificate (7/15 of process, p 27) from the Occupational Health Physician was dated 12 June 2000.

"In my opinion, Mr Rooney's psychological difficulties are due to a depressive illness (DSM diagnostic code 296.22, ICD diagnostic code F32.1) that, on the balance of probabilities was precipitated by the accident and its effects on his physical health and which would not have developed if the accident had not occurred."

He recommended more aggressive efforts at antidepressant treatment and clinical psychology therapy and expressed the view that if these approaches were used in combination it was likely that there would be some improvement in his depressive symptoms with some associated benefit on his general quality of life but that his psychological difficulties were likely to persist in some degree for as long as his difficulties with faecal incontinence continued.

"Thank you for kindly asking me to see this unfortunate man, who really is in quite a great deal of trouble because he is unable to work because of his defecatory disorder. He finds that he has to digitate to achieve defecation, then has to make repeated visits to the loo, up to 3-4 times over half an hour. Following this his anus feels very uncomfortable. He finds defecation easier if he does not sit down. He manages at home, but is finding things impossible at work. He has been in the loo and has had to miss going on an emergency call when aircraft are landing. Furthermore, he has been incontinent in the middle of the runway, and has become in quite a state over all of this.

His problems started about 8-9 years ago, but the incontinence seems to date following a fall onto his back last year.

If he does not digitate he is more likely to be incontinent. In addition, he is having some blood and jelly mixed with his stool.

On examination, he was fit, but rather anxious. His abdomen was normal. Rectally there was no pelvic floor descent. He had good resting tone, but a very poor voluntary contraction and he did not relax when asked to push down. I have arranged for him to have ano-rectal physiology investigations, together with biofeedback, at the Royal Infirmary and I will also organise an MR scan."

Mr Bartolo explained that it was his understanding when he wrote the above letter was that the pursuer had not been incontinent prior to the accident, that he had had some difficulty in initiating defecation, but this was a manageable problem and that he subsequently became incontinent following the accident. The pursuer's incontinence on the runway did not start till after his injury.

"Loss of control dates from the fall. Fell onto his back. Copy my notes to RIE."

"We have now completed the physiology investigations on this patient. They show that he has a normal resting pressure and much to my surprise can produce a squeeze, albeit it's not much. He has a reasonable cough pressure. What is highly abnormal is his rectal compliance. He has a volume of first sensation of 356 ml, which is grossly in excess of the normal 30-40 ml and a maximum tolerable volume of 417, which again is greater than the normal maximum of 300. His pudendal latency is normal. As you know his MR scan showed no evidence of neurological injury.

Loss of rectal sensation is a potent cause of faecal incontinence where the rectum fills before the patient becomes aware and then overcomes the sphincter, leading to passive incontinence."

He went on to state that the pursuer was being taught how to carry out rectal irrigation and asked Dr Rutherford to arrange physiotherapy for him to try to improve his conscious control of sphincter function. He explained that rectal compliance was the relationship between pressure in the rectum and the volume. A non-compliant rectum would accommodate a small amount of fluid and generate a high pressure, whereas a complaint rectum would allow a lot of fluid and generate a low pressure.

"A consultation was held at the BUPA Murrayfield Hospital to provide a medical report for Mr Rooney. He informed me that he was having physiotherapy but did not feel that he had sustained great benefit from this. As far as his control was concerned, he was irrigating his rectum regularly, using 2 litres of water. He felt that this had transformed his life in that he was no longer incontinent. His major problem was that he was required to be on duty for a 24 hour period and would not be able to spend 30-45 minutes in the bathroom, that rectal irrigation requires (sic). As a consequence his position as a firefighter has become virtually impossible to sustain, and he is no longer currently working.

It appears that this man had an existing disorder of defecation characterised by difficulty with evacuating his rectum. Following his injury this was also complicated by faecal incontinence, a symptom he had never previously suffered. Thus, on the basis of the history presented to me the incontinence only developed following his fall.

One can conclude on the basis of his story that the fall was likely to have played a role in the genesis of his faecal incontinence. There was a background problem of difficulty with evacuation and this in turn may have been related to his loss of sensation. In the absence of previous investigations firm conclusions cannot be made regarding his rectal sensation. He also has absence of his recto-anal inhibitory reflex and this in turn is likely to reflect loss of rectal sensation. ....

I consider that one can say with reasonable certainty that Mr Rooney had a long-standing defecatory disorder, characterised by difficulty with evacuation. Following his injury he developed faecal incontinence that has resulted from some form of neurological damage to his external sphincter."

"I believe quite strongly on the basis of Mr Rooney's history that his faecal incontinence has arisen as a result of neurological damage to his external sphincter, and therefore the conclusions of the medical tribunal are incorrect. My training in surgical science has taught me not to be dogmatic in reaching conclusions. Moreover, my training in medico-legal practice has indicated that conclusions should be reached not on the point of certainty, but on the balance of probabilities. I believe that in Mr Rooney's case on the balance of probabilities his incontinence arose as a result of his back injury, which was sustained during the course of his work."

The above remained his opinion, and he believed that any continuing incontinence was related to the accident. He was not surprised that irrigation was not as beneficial subsequently as it was initially. The opinion expressed by Dr Samantha Phillips in the Ministry of Defence file (7/15 of process, p 10) that it was likely that the pursuer's faecal incontinence was solely as a result of the injury sustained in the accident accorded with his own opinion. His experience of incontinence of the pursuer's type was that it never got better. It was correct that he could not pinpoint the particular neurological difficulty which caused the pursuer's incontinence, but it fitted a pattern with which he was familiar. He asked that a specialised neurological opinion should be obtained from Professor Swash, whom he had known since about 1983, and of whose work he was aware. Along with late Sir Alan Parkes, former President of the Royal College of Surgeons of England, Professor Swash had really laid the foundations of medical understanding of faecal incontinence and its treatment. In his presidential address to the Royal Society of Medicine in 1979 Sir Alan had referred to the fact that people would not admit to their nearest and dearest that they suffered from faecal incontinence for fear of social ostracisation. A paper in the Lancet by Professor Leslie Turnberg, Professor of Medicine and Gastroenterology in Manchester, referred to "the hidden complaint", specifically describing how many patients would go to their doctors saying they had diarrhoea rather than faecal incontinence, a complaint which people were reluctant to voice. He found from his own experience that sometimes a referral letter would say that the patient was suffering from frequent incontinence and at the consultation the patient would not say what the problem was. He had to lead patients by asking specific questions to get the answers. It was just socially unacceptable to be incontinent. The pursuer's account of thinking he had to pass wind when lying on the couch a couple of days after the accident and having discovered that he had been incontinent fitted in with Mr Bartolo's assessment of the causal connection.

"He landed on his back in the accident. There was swelling and bruising of his back and buttocks but x-rays did not reveal any fractures. He remained off work for about two weeks, resting on a couch at home with pain in his back, but not the legs. He told me that a couple of days after the accident he was incontinent of faeces and that this grew worse over the next few days. He found that he could not control his bowels, finding faeces in his clothing, and also finding that he could not prevent defecation from occurring when it began to commence. His wife said he should go and see his doctor, but he did not at first do so. He returned to work but was troubled by incontinence of faeces occurring while on duty. He then remained away from work but after a twelve month period, allowed for him to recover, he was dismissed."

"Mr Rooney is generally healthy and there is no specific abnormality in the nervous system in the sense that there is no underlying neurological disorder that might lead to incontinence, for example, multiple sclerosis. Specific examination of the lumbosacral region reveals that the spine is normal. The plantar responses are flexor and the tendon reflexes in the arms and legs are normal including the knee and ankle jerks. There is no weakness, wasting or sensory loss in the legs, including the buttocks and perianal skin. The anal reflex is present. Anal tone is normal and there is a vigorous cough response of the anal sphincter. There is no evidence of weakness of the anal musculature. The anal sphincter is not patulous. The anal margins are clean and there was no faeces on the finger of the examining glove. He seemed to walk with a very slight stoop but there was no other suggestion of abnormality."

He explained that he was more interested in finding out whether there was a neurological abnormality, rather than assessing the absolute strength of the muscle. He thought the clinical examination was notoriously unreliable in assessing the strength of the sphincter muscle.

"Mr Rooney's story does suggest that defecation occurs more or less inadvertently and that, although sensation is diminished, it is the defecatory response that leads to defecation, rather than defecation occurring totally without sensory control. The history very strongly suggests that the defecatory abnormality occurred in some way in relation to the accident. It is difficult to identify the particular pathology. No exploratory procedures have been carried out and no biopsies have been made of the anorectal mucosa or wall to assess the muscular or nerve supply of this organ (and I do not think that these would be indicated since they would not lead to treatment). It is recognised in the medical literature that trauma can lead to neurological damage and incontinence. If, for example, there is damage to the pelvis there may be impotence and incontinence. There is not usually a problem with rectal control alone, but the pursuer had a problem with defecation before so his position may be different. While there is no evidence in the records of this, it is possible that there was retroperioneal haemorrhage which might have damaged the small fibre sensation to the anorectum".

"Mr Rooney's faecal incontinence is temporally related to the accident he suffered in November 1998. He was not incontinent prior to this event and was incontinent afterwards. There was a previous history of defecatory abnormality in that he had a rather typical story of obstructed defecation suggesting mucosal prolapse requiring digitations to sustain a normal defecatory behaviour. After the accident there was an abrupt change in the function so that he became incontinent, with the knowledge of the desire to defecate but the inability to stop it. This has been associated with a raised sensory threshold and reduced anorectal compliance, as shown by the low threshold for maximal rectal volume tolerated. The incontinence is thus associated with a raised threshold for first sensation of rectal filling and a decreased threshold (volume) for rectal filling suggesting a combination of sensory deficit and decreased elasticity of the rectal wall. While it is difficult to identify the particular pathology, it is possible that there has been a haemorrhage in the pelvis or around the anorectum which may have led to the problems experienced by Mr Rooney. Having regard to the temporal relationship between the accident and the development of faecal incontinence, and given the existence of a possible pathology, I am of the opinion, on a balance of probabilities, that it is likely that the accident has caused or at least made a material contribution to Mr Rooney having developed faecal incontinence. With regard to treatment, it might be helpful to repeat the pressure studies and to offer bio-feedback to try and improve the strength of the anal sphincter muscle and to improve its coordination to a more normal pattern of behaviour. It seems to me unlikely that surgical management would be helpful, although I must defer to Mr Bartolo's considered views on this matter."

"In conclusion it is my opinion that the pursuer suffered from an abnormality of the anorectum known as obstructed defecation prior to his injury. The exact cause of this condition is unknown to medical science. On full investigation after the accident he has no objective evidence of a neurological deficit apart from a loss of sensation in the rectum. There is no explanation known to me on the basis of the pathophysiology of the anorectum which would explain how he could develop this abnormality due to the accident in the absence of other neurological findings. On the balance of probability I would consider his present symptoms to be due to a combination of pre-existing reduction in sensation in the rectum in combination with features of irritable bowel syndrome."

"Irritable bowel syndrome is also a condition poorly understood by medical science. It's a label widely used for patients, but it really means that patients have symptoms from the bowel that medical science doesn't understand. There are, however, some features of the condition which are well recognised. Patients tend to have diarrhoea that's often associated with anxiety. It can be caused by stressful situations and it is an extremely common condition. Of all patients I see with incontinence almost half have irritable bowel syndrome as a major component of their symptoms, some, like Mr Rooney, with an apparently normal muscle structure at the tail-end or the anus. So it's a common condition which causes patients to have diarrhoea and urgency. It's interesting in Mr Rooney's case that these were the cardinal symptoms he had. He said he was only incontinent when he had diarrhoea and urgency seemed to be one of his major symptoms. He had this feeling he needed to go to the loo all the time, which is why he clenched his buttocks, and wasn't incontinent at home he told me because in that situation he could go to the loo. The difficulty with this condition is that patients know they can be overwhelmed by the diarrhoea and urgency, and that in turn raises more anxiety, and that's the very thing that becomes a self-fulfilling prophecy for them because the bowel becomes more active and the symptoms more compelling. And yet many of these features and I felt that, taken together, this loss of sensation possibly due to his straining over a long period of time in conjunction with these features were the principal cause and a more probable cause for his incontinence than to speculate wildly about a putative neurological injury that cannot be identified (sic)."

"On clinical examination it is immediately apparent that Mr Rooney suffers from severe anxiety. He is 'crouched and only shuffles along'. He holds his lumbar spine in a state of flexion and takes very limited steps. He attributes this posture to his need to continually clench his buttocks together to avoid leakage.

On further examination he has no evidence of lower limb or buttock muscle wasting and a full range of movement of the lumbar spine. All peripheral reflexes are present including the ano-cutaneous reflex. There is no loss of skin sensation below the waist. His anal skin is also normal. He has normal basal and squeeze pressures in the anal canal on gross clinical examination."

Mr Finlay explained that the pursuer's appearance when he came to see him was most extraordinary: he had developed a most extraordinary posture in that he was hunched over and taking very small steps.

Discussion and conclusion about injury

"Plainly, one will more readily conclude that B is caused by A, or probably caused by A, if one can identify, or at least envisage, some kind of mechanism whereby B might be caused by A. Equally, if one simply cannot identify or envisage such a mechanism, the mere fact that on one occasion B happened after A (and perhaps very quickly after A) would not, in the absence of other indications, lead one easily to conclude that B was caused by A. But no one, certainly in this case, suggests that such a single coincidence is to be interpreted as involving a causal relationship. And once one moves from a single coincidence to a number of occasions when B follows (perhaps quickly) upon A, dismissiveness of 'post hoc ergo propter hoc' reasoning seems to me to become less and less appropriate. Indeed, unless and until one can identify or envisage a connecting mechanism, countless conclusion as to causal relationship are reached precisely upon a form of 'post hoc ergo propter hoc' reasoning: if B is observed never to occur except shortly after A, the conclusion may be relatively easy - but if B is observed to occur frequently after A, then even if each occurs sometimes without the other, the frequency with which B occurs after A may nonetheless justify a more or less firm conclusion that A, in certain circumstances, causes B. I do not regard such conclusions as based on false (or indeed simple) logic. The approach is in my opinion inherent not only in conclusions drawn from one's general experience or 'anecdotal evidence'. It is inherent also in much experimental research and also, it seems to me, in epidemiology."

Earlier, at p 604 C, his lordship said:

"If a particular process of reasoning is widely accepted, then I think that may be persuasive for a court. But the fact that a particular view is widely held, without any persuasive explanation as to why it should be so held, and constitute a conclusion, does not appear to me to be a matter to which a court should give significant weight. Rather similarly, the fact that a particular view was or is held by someone of great distinction, whether he is a witness or not, does not seem to me to give any particular weight to his view, if the reasons for his coming to that view are unexplained or unconvincing. As with judicial or other opinions, what carries weight is the reasoning, not the conclusion."

Damages

Decision

[101] For the reasons given above I shall repel the pleas-in-law for the pursuer, sustain the second and fourth pleas-in-law for the defender and grant decree of absolvitor.