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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 47
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OPINION OF LORD CARLOWAY
in the cause
BRENDA DOWNIE
Pursuer;
against
FIFE
COUNCIL
Defender:
________________
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Act:
LJ Milligan; Digby Brown SSC
Alt:
McIlvride; Ledingham Chalmers
19 March 2008
1 Pleadings
[1] The
pursuer is aged 40. She is employed by
the defenders as a social worker. From
June 2003 she was based in the defenders' office at 70 Stenhouse Street, Cowdenbeath. Her duties were desk based. She shared a computer with a colleague, but
that computer was on her colleague's desk.
The pursuer avers that she required to turn, stretch and twist her body
to access the computer from her own desk.
As a result, she developed a pain in her neck. The pursuer's claim for damages is based on
the defenders' breach of, amongst others, regulation 11 of the Workplace
(Health, Safety and Welfare) Regulations 1992 (SI 3004), which requires
workstations to be suitably arranged.
The defenders do not contest liability.
[2] The
pursuer avers that she consulted her general medical practitioner on 10 May 1994. Thereafter
she was certified unfit for work until 25 October
2004. She continued, and continues, to suffer neck
pain and was off again in December and January 2005. She required physiotherapy and assistance
from her husband with household tasks.
The pursuer also became unable to assist her husband in looking after his
parents. The pursuer's claim is
restricted to solatium and services. The
defenders do not admit the nature and extent of the pursuer's injury and
maintain that any ongoing symptoms she has are minimal.
2 Evidence - Lay
[3] The
evidence was in short compass. The
pursuer described working at her desk and experiencing pain in the left side of
her neck, radiating across the shoulders and down her arms, especially on the
left side. The pain was sharp, like a
severe toothache. She had pins and
needles down to her right elbow and throughout her left arm. She had been aware of the pain for about six
weeks before visiting her GP on 10 May 2004. Initially, she had just gone for advice and
self certified a short period of absence.
She was prescribed pain killers, but the pain remained and she was
eventually signed off for a total of six months. During this period, she
underwent a course of privately funded physiotherapy at a cost of £120 for
three sessions. She later had further physiotherapy on the National Health
Service. The pursuer's mood became low as her condition persisted. For the first three months, her husband
required to take over the shopping, cleaning, cooking and gardening. He also
helped her with dressing and washing her hair.
[4] By
about August, her symptoms were improving and she began reducing her
medication. Her physiotherapist noted her as feeling that there had been a "big
improvement". Although she could have
returned to work at that time, her workstation had yet to be altered and she
remained absent on medical advice until 25 October. She described the pain as having plateau-ed by
the end of this period, but she still had pain in her neck and pins and
needles.
[5] The
pain, which took the form of a dull ache, remained the same for a year, until
she was moved to an office in Dunfermline in November 2005.
Her workstation there was also not suitable and the pain increased to
the extent of her left arm going numb completely one day when she was
driving. She was taking pain killers
daily. She returned to work after an
absence of two months. The pain remained
and she undertook a third course of physiotherapy, which assisted
temporarily. Unfortunately, in October
2006, she slipped on some steps and twisted her ankle. This resulted in a period on crutches and her
pain increased once more for a time. By then,
she was back in Cowdenbeath. However,
she was able to visit China and thus managed two
ten
hour flights without significant difficulty. A further course of physiotherapy
was completed in about October 2007.
[6] The
pursuer maintains that her pain still subsists in the form of a steady, dull
ache, and was, at the time of the proof, worse because of the stress caused by
the court case. It has not improved over the last two or three years. Overall, the pursuer does not consider that
she is working at her pre-accident capacity.
She is slower and needs to move around from time to time. She avoids driving. At home, although she can do many things that
she used to do, they take longer.
Whereas she did most of the housework before, that is no longer the
case. Her husband does almost all the
cooking and cleaning. She is unable to
do any heavy lifting, including some shopping, or any lifting above head
height, such as decorating, which she previously did with her husband. She cannot help her husband in looking after
his parents, in the way she had done prior to the onset of her condition. The pursuer describes herself as not the same
person as she used to be. Her condition
has had an adverse impact on her relationship with her husband, including the
more intimate aspects of that relationship, although things have improved from their
lowest ebb. She continues to take
painkillers two or three times each week.
[7] The
pursuer's husband, Douglas Downie, also works for Fife Council. He is the same age as the pursuer. Mr Downie recalled the problems which the
pursuer had before being certified unfit for work and her condition thereafter. He described these as involving a pain in her
neck and shoulder, becoming severe with numbness in her left hand and arm.
Medication assisted but rendered her incoherent at times. He required to help her wash and dress in the
initial months. He had to do all the
housework, including the cooking, washing and ironing, whereas previously it
had been shared. The ironing had taken
three one hour sessions per week. The
garden became neglected. Initally, Mr
Downie would return home at lunchtimes to look after the pursuer.
[8] After
her return to work, according to Mr Downie, he still did most of the housework
and all the gardening and decorating. He
still did all the ironing. Most of his
evenings, prior to the pursuer retiring at about 10 pm, were and are taken up with
housework. Cleaning takes two sessions per
week of an hour or more. He has to do
all the heavy lifting. He also does all
the care work for his parents, which the pursuer and he had shared
previously. This involves five visits
per week, although his parents do live locally.
Whereas the pursuer and Mr Downie used to walk for leisure, they do not
do so anymore. If they go for a long
drive, he does the driving. Mr Downie
said that he still noticed when his wife was in pain. She continues to take painkillers. He thought that her job was quite difficult
and but she had soldiered on.
Emotionally, she was not as perky as she had been in 2003.
3 Evidence - Medical
[9] The
pursuer's expert, consultant orthopaedic surgeon Ivan Brenkel, gave evidence on
commission in advance of the proof. He
had been a consultant for seventeen years at Queen Margaret Hospital, Dunfermline and the Victoria Hospital, Kirkcaldy. He saw the pursuer on 15 November 2005 (report 6/1), when he was also able to review the GP
records (6/10 - agreed as such by joint minute no 18 of process). These showed that she had no previous neck
problems. At the time of his
examination, the pursuer was complaining of neck pain, worse on the left,
radiating to both shoulders and sometimes down to her left elbow. The pain varied from toothache type to
occasionally more severe. She described
her strategies for avoiding aggravating the pain and her frustration at its
persistence. On examination,
Mr Brenkel found no localised tenderness or muscle spasm but her neck
movements were restricted. She had no
abnormal neurology (nerve root entrapment).
X-Ray revealed a loss of some cervical curve (lordosis) due to muscle
spasm, but nothing otherwise abnormal.
He concluded that she had suffered a soft tissue injury, causing her to
be off work for six months, a period which he deemed reasonable. At that time, he thought that her symptoms
would settle over the period of a year, by which stage they would be minimal
and would not interfere with her work or social life.
[10] Mr
Brenkel saw the pursuer again in March 2007 (report 6/2) and matters had not
progressed as he had hoped, partly because the pursuer had ceased physiotherapy
and partly because of further problems with her workstation. He thought that her neck movements had
improved slightly. Mr Brenkel was not
surprised that she was still experiencing pain in the circumstances. He agreed with the report from the defender's
expert (infra) that her condition was
stable and that her then symptoms should constitute only an inconvenience
rather than a disability. She should be
re-assured in relation to using her neck and her symptoms ought to resolve over
a period of four to six months, with physiotherapy. Mr Brenkel did think that she would continue
to have a residual dull ache, given that it had persisted for so long. She would continue to require the occasional
painkiller. Mr Brenkel also agreed that,
with appropriate physiotherapy and work conditions, the pursuer's symptoms ought
to have settled after a year. He did not
think that the pursuer's use of crutches was significant.
[11] Michael
McMaster, consultant orthopaedic surgeon at the Murrayfield Hospital (and formerly for many
years in that position at the Royal Infirmary, Edinburgh) gave evidence for the
defenders (report 7/1). He saw the
pursuer on 17 August 2007 for some thirty minutes,
having seen Mr Brenkel's reports. He
noted the pursuer's complaint of a dull ache at the base of her neck on the
left side. This, he recorded her as
reporting, did not restrict her personal activities or her full time social
work. It did affect her ability to reach
above her head and to lift heavy items.
He could find no clinical abnormality of the neck, which had full
movement. He did not consider the
reduction in spinal lordosis to be significant.
Rather it might have been caused by the radiographer asking the pursuer
to stand up straight in order to obtain a good x-ray. The work which the pursuer had complained of
would not have caused any damage to the structure of the neck, merely a soft
tissue or fatigue strain. Although any
problems might have been aggravated by a repetition of the poor work conditions
and the use of crutches, Mr McMaster considered that, if the pursuer had
continued to use the neck normally, any residual symptoms would have resolved
in a few months. He agreed broadly with
Mr Brenkel's first report, other than in relation to the time taken to resolve
the pain.
[12] Mr
McMaster was of the view that, as a result of the soft tissue injury, the
pursuer would be experiencing no continuing symptoms. Her complaints were unrelated to the physiological
and radiological findings. He had not
thought that the pursuer was lying about her pain, merely that her complaints
had become "habitual". She would, he
thought, "keep trotting out the same thing" to the various lawyers and doctors that
she was scheduled to see. However, he
did not accept that she was genuine if she had said that her symptoms had not
improved. The normal healing process
ought to have taken only two or three months.
4 Conclusion of Fact
[13] The pursuer's evidence that, as a result of her
activities at the workstation, she suffered neck pain of the type she described
for the period to date is credible and reliable. The pursuer gave her testimony in a
straightforward manner with little, if any, exaggeration. She had never suffered from any neck problems
before the precipitating cause in this case.
Despite her problems, she had returned to work as soon as was reasonable
and has continued in her full time social work with only one further,
understandable, period of absence. There
is no sound reason not to accept her evidence as truthful. The course of her troubles is documented in
the physiotherapy and GP practice notes.
It is also corroborated by the evidence of her husband. His testimony was also given in a
straightforward manner without significant exaggeration. It too is entirely acceptable and supports
the reliability of the pursuer's account.
[14] The
pursuer described her pain, which was at first severe and radiated across the
shoulders and down the arms, as taking several months to settle to a dull
ache. This is consistent with what both
orthopaedic surgeons would have predicted in the normal case, although there
was some discrepancy on the precise number of months. The pursuer's injury did seem to be resolving
in a predicted manner. However, that
resolution was thrown off course twice;
first by her work conditions in Dunfermline and secondly by her use of
crutches after the fall. Mr McMaster
agreed that these episodes would have exacerbated the pursuer's condition. Of course, as a surgeon of considerable
experience and skill, Mr McMaster's views on all aspects of the case are
entitled to respect. In this case, but
for these episodes, greater weight might have been attached to his testimony
regarding the complete resolution of symptoms in all cases after a period of
months. However, having regard to the
likely consequences of these episodes, the testimony of Mr Brenkel is
preferable to the effect that the pursuer will have residual problems involving
her dull ache, requiring occasional pain-killers, in the years ahead. On the other hand, Mr McMaster may well be
right in saying that, with appropriate management (ie a return to entirely
normal neck activity) the pain may resolve entirely. This does, however, remain doubtful. Certainly, the removal of the inevitable
stress caused by the present litigation is likely to be beneficial.
[15] The
evidence of the pursuer and her husband in relation to the services claim is
also broadly acceptable. There is little
real conflict between their testimonies.
They do not have a family and both work full time. Prior to the pursuer's problems, the pursuer
did more than half of the domestic chores.
Afterwards, she was unable to make any significant contribution to the
housework until about the time she returned to work. Since then, her husband has done the bulk of
this work. At the start, he would have
been putting in at least two hours extra on average every day, dropping to an
hour a day after that return and to date.
It may be that, with proper management and the resolution of the
litigation, however, matters might return to more of an equilibrium.
5 Damages
(a) Solatium
[16] The
pursuer suggested £6,000 for solatium, all attributable to the past. This was under reference to the English
Judicial Studies Board Guidelines for the Assessment of General Damages in
Personal Injuries Cases (sub nom.
Neck Injuries (b) Moderate (ii) or (c) Minor (i); Back Injuries (c) Minor); Lewis v Richardson 2002 SLT 272; Spink
v Lawrie, unreported, 9 May 2006,
Sheriff Cusine at Aberdeen). The
defenders, founding of course on the acceptability of Mr McMaster's testimony,
suggested £3,000 to £3,250 under reference to Ivory v Cowie 1994 SLT
307; Jamieson v Higgins 1998 Rep LR Quantum 23; and Frame v Parker 2004 SLT
(Sh Ct) 111. If Mr Brenkel's evidence
were accepted, 15% of any award ought to be attributable to the future.
[17] On the
basis of the above conclusions of fact, £5,000 is a reasonable award for
solatium, with 15% attributable to the future. Applying interest at 4% from 10 May 2004 on the past element adds a further £650.
(b) SERVICES
[18] The
pursuer asked for the awards for services to take the form of lump sums, even
if some arithmetical calculations could be used as a cross check; that is to
say the number of extra hours multiplied by an hourly rate of perhaps £5. The pursuer sought £1,000 for the services
rendered by the pursuer's husband during the first three to four months. Thereafter, she sought a total of £2,000
(£500 per annum) for the period after the severe initial pain had
subsided. In addition, £400 (£100 per
annum) was reasonable in respect of the assistance to the pursuer's
parents-in-law. No award was sought for
the future and therefore interest, requested at 4%, would run on the whole
sum. The defenders submitted that a
total of £650-750 for all the services was appropriate under reference to
McEwan & Paton: Damages for Personal
Injuries para 12-08/09 summarising McCluskey
v Lord Advocate 1994 SLT 452; McGarrigle
v Babcock Energy 1996 SLT 471; Williamson
v GB Papers 1994 SLT 173 and Duffy v Lanarkshire Health Board 1995 SLT 1312).
[19] The
level of the pursuer's requests for sums to represent past services is entirely
reasonable. The pursuer's husband has
put in a considerable number of extra hours each week in order to manage the
domestic routine of the house. He
continues to do so. The sums of £1,000
for the initial period, £2,000 for the remainder plus £400 for the assistance
needed to Mr Downie's parents are, if anything, on the moderate side of
reasonable. They total £3,400. Interest at 4% on the total is again modest,
and produces a further £520.
[20] There
was no dispute that the pursuer is entitled to the £120 cost of physiotherapy,
and this will be made up to £150 once interest at 8%, since the expense was
incurred, is taken into account.
(c) DECREE
[21] The
decree in favour of the pursuer will be for £9,720. I will sanction both
consultants as skilled witnesses whose engagement to investigate and to report
was reasonable.
