Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 67
A2449/02	OPINION OF LORD HODGE in the cause DAVID KERR Pursuer; against STIELL FACILITIES LIMITED Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Hajducki, Q.C., Comiskey, Advocate; Gildeas

Defenders: Hanretty, Q.C., Balfour, Advocate; HBM Sayers

14 May 2009

[1] The pursuer is an electrician by training. He is aged thirty eight. He left school at the age of sixteen. He was in regular employment as an electrician without significant periods of absence until April 2000. He has not worked since 7 November 2001. Since late 1999 he has suffered from pain which has over time manifested itself in many and baffling ways. He has consulted many medical experts about his symptoms. He suffered a minor accident at work on 28 September 1999 when he was employed by the defenders. He attributes his medical problems to that accident. The principal issues in dispute in the proof were (a) whether the pursuer's symptoms were genuine and (b) if the symptoms were genuine, whether they were caused by the accident.

The accident
[2] The pursuer acted in a supervisory capacity in his employment and was primarily responsible for installing networks for computers. He was asked to assist colleagues in moving a large circuit breaker or junction box into the basement of office premises near Lothian Road in Edinburgh. He and his colleagues had to manoeuvre the object, which measured about seven feet in length, and about two feet and six inches to three feet square, down a flight of stairs to the basement. There was a flight of stairs from the ground floor to a landing, which (as one looked from the top of the stairs) extended to the left, and then another flight of stairs parallel to the first flight down to the basement. The landing measured approximately three metres by two metres. The circuit breaker was heavy and awkward to manoeuvre. The pursuer and three others, namely Jim McGrain, Thomas Stewart and Alan Fitzpatrick, were involved in moving the circuit breaker and they were assisted by Alan Miller, who was their supervisor. On reaching the top of the stairs, they placed cardboard or hardboard underneath the circuit breaker and used ropes to slide it down the first flight of stairs. When they got the circuit breaker to the landing they pushed it into an upright position and manoeuvred it to the left towards the top of the lower flight of stairs. At some point, the circuit breaker, which was top heavy, tipped backwards towards the wall at the left hand corner at the back of the landing (again looking from the top of the stairs at ground floor level). Thomas Stewart was standing in that corner with Alan Fitzpatrick on his left. The pursuer was diagonally opposite Mr Stewart and was standing on one of the steps of the lower flight. To his left was Jim McGrain. When the circuit breaker began to tip towards the corner, the men were concerned that it would crush Thomas Stewart and they struggled to get it upright again.

[3] The pursuer, Alan Miller, Thomas Stewart and Alan Fitzpatrick gave evidence about the incident. There were some discrepancies in the evidence, particularly between the pursuer's account and those of the others. The pursuer said that, when the circuit breaker began to tip, he moved round to Thomas Stewart's side of it and used his left shoulder to push it upright. He also gave this account to Dr Jon Stone when interviewed in September 2006 about one month before he gave his evidence. The other witnesses spoke of him and Jim McGrain remaining on the opposite side of the circuit breaker and pulling it into an upright position while Thomas Stewart and Alan Fitzpatrick pushed it. Alan Miller also spoke of joining in to pull the circuit breaker away from Thomas Stewart into an upright position. It was apparent also from the pleadings and from the account which he gave to Dr Muir among others (see paragraph [22] below) that the pursuer's account had at one stage been understood to be that the circuit breaker had tipped towards him in the direction of the lower flight of stairs and that he had been in danger of being crushed. After the pursuer gave evidence explaining that the circuit breaker had tipped away from him, Mr Hajducki QC sought to amend the record to reflect the pursuer's position in evidence on this matter which was supported to some extent by the other witnesses and I allowed the pleadings to be so amended. Surprisingly, when the pursuer was examined by Dr Gill in November 2008 (paragraphs [53] - [58] below) he gave him what appeared to be a different account, in which he spoke of the circuit breaker starting to slip down the stairs.

[4] There was also some discrepancy in the evidence of the other witnesses as to which hand the pursuer had used to pull the circuit breaker. Thomas Stewart was clear that the pursuer had used his left hand to pull the circuit breaker. Alan Fitzpatrick did not recollect with any confidence which hand the pursuer had used to "grab" the circuit breaker but recalled that the pursuer had then touched his neck or his right shoulder with his left arm after he had shouted out. All three witnesses recalled the pursuer shouting out or otherwise indicating that he had hurt himself. Mr Stewart spoke of the pursuer saying that he had "twitched" his back. Mr Fitzpatrick and Mr Miller spoke of the pursuer swearing. Mr Fitzpatrick thought that the pursuer had hurt his neck or his arm. Mr Miller had a vague recollection of the pursuer saying something about his neck.

[5] I am satisfied that the pursuer suffered some pain or discomfort in his neck, left shoulder or upper back through a minor muscular injury when pulling the circuit breaker back into an upright position on this occasion. What the precise injury was is a matter of conjecture as the pursuer did not obtain medical assistance at the time and, although he attended his general medical practitioner in relation to other matters shortly after the incident, there is no explicit mention of the incident in the medical records until March 2000. There are however entries on 26 and 28 January 2000 recording continuous problems with pain in the neck and shoulders and a description of the pain as an extraordinary response to what seemed to be a fairly innocuous complaint. See paragraphs [11] and [12] below. No-one explained these entries, which are consistent with the pursuer having described a minor accident at an earlier date.

[6] The matter was complicated by the pursuer's inconsistent accounts of his actions during the incident. It is clear from several medical reports and from the unamended pleadings that he had led people to believe that the circuit breaker when on the landing had toppled towards him down the stairs and that it had hit his left shoulder. The pursuer's account in the witness box however was closer to that of the eye witnesses as he spoke of the cabinet toppling backwards towards Thomas Stewart and Alan Fitzpatrick. But the pursuer's account was that he then stepped up from the first step of the lower flight of stairs, went round to the left of the circuit breaker and assisted Thomas Stewart and Alan Fitzpatrick to push it upright. It may well be that at some stage in the incident he did move round to Mr Stewart's side of the circuit breaker but the balance of the evidence supports the view that he sustained an injury while pulling at the circuit breaker from the opposite side. Having regard to the conflicting accounts which the pursuer has given, I prefer the evidence of the other eye witnesses and reach the conclusion set out in paragraph [5] above.

The pursuer's medical history
[7] As the central questions in dispute are (i) whether the pursuer's symptoms are genuine and, if so, (ii) whether the accident at work caused or materially contributed to those symptoms, it is necessary to set out (a) the pursuer's prior medical history so far as it might be relevant to his complaints, (b) his symptoms in the period immediately after the accident and (c) his symptoms in the longer term. The boundary between (b) and (c) is arbitrary and I have chosen it simply by reference to the first diagnosis of the pursuer's symptoms as Complex Regional Pain Syndrome Type 1 ("CRPS").

Before the incident
[8] In 1985 when the pursuer was fifteen and again in 1987 when he was seventeen his GP records refer to aches in his chest which appear to have been shortlived. In 1986 he suffered from swelling in a knee joint. In 1990 when he was twenty he suffered low back pain when at work. In 1993 he suffered aches in his shins without trauma and was off work. In January 1994 and December 1995 he attended his GP who recorded complaints of tiredness. But there was no record of the pursuer having ever had to take a significant time off work because of any injury or medical condition. On 16 June 1999 the pursuer was admitted to hospital at Scarborough complaining of severe pain in his right iliac fossa. It was thought that he was suffering from renal colic but investigations excluded renal pathology. Before October 1999 the pursuer was not a particularly frequent visitor of his GP practice. That changed markedly after October 1999. More puzzling however were the symptoms which the pursuer reported shortly after the accident and which had started several weeks before then. I describe them in the next paragraph.

(b) Shortly after the incident (October 1999 - December 2001)

[9] The pursuer first visited his general medical practitioner after the accident on 4 October 1999. At that consultation the pursuer reported having suffered right loin pain for six weeks and also heartburn with epigastric pain at night. Dr Hurry's medical notes did not record any complaint of an injury to the neck or back as a result of the incident nor did they mention the incident. In a letter dated 6 October 2008, which parties accepted as an accurate statement, Dr Hurry explained that he was a part-time occupational health physician and that it was his normal practice to record an accident if it had been discussed at a consultation. I accept that the pursuer did not mention the accident to Dr Hurry at that consultation. On 12 October 1999 the pursuer again visited his general medical practitioner complaining of epigastric pain and lethargy over a period of eight weeks. The doctor also recorded an intermittent burning sensation in his right iliac fossa and musculo skeletal pain in the upper chest. The pursuer complained of persistent pain for four days and increased pain on lifting or moving his arms. The doctor recorded the view that the pain was muscular in origin and noted the pursuer's concern about his complaint of lethargy. On a further visit to the GP practice on 15 October it was recorded that the pursuer was still complaining of pain in his left chest wall and shoulder and tingling in his upper left limb. On 22 October 1999 it was recorded in the pursuer's GP notes that pain persisted in his left shoulder and on the left side of his chest. He was noted as being very lethargic before he took analgesics and, on examination, movement of his shoulder and neck gave rise to pain.

[10] On 24 October 1999 the pursuer or his wife telephoned the out of hours service of his GP practice to complain of worsening shoulder pain. The pursuer was advised to take analgesics and to return to his general medical practitioner. On the following morning (25 October 1999) the pursuer attended Stirling Royal Infirmary complaining of chest pain. An X-ray was taken of his chest and neck, which revealed nothing. He was diagnosed as suffering from muscular neck pain, told to continue to take analgesics and to carry out neck exercises, and discharged home. Thereafter his medical records did not reveal any visits for medical assistance until January 2000.

[11] On 7 January 2000 the pursuer returned to his general medical practitioner and reported that he had suffered chest and shoulder pain for five days. On examination he was found to have a tender left pectoral muscle and tenderness was detected in his epigastric region. A urine sample was taken and sent for analysis. On 19 January 2000 he was prescribed antibiotics for a urinary infection. He returned to his general medical practitioner on 26 January 2000 and reported continuing problems with neck and shoulder pain; the doctor noted that he had an odd and anxious demeanour. On 27 January 2000 the pursuer's wife telephoned the out of hours service asking for a house call at 2248 hours. The doctor noted that the pursuer reported having suffered neck and back pain since October 1999 and that it had got worse on the previous day, with pain radiating from his neck into his back and shoulders although there had been no injury. The pursuer suggested that he should be X-rayed but the doctor advised that that was not appropriate at that time and suggested that he visit his GP on the following day. The pursuer went to the casualty department at Stirling Royal Infirmary and was X‑rayed but nothing of note was found.

[12] On 28 January 2000 the pursuer informed his GP that he had continuing pain in his neck and upper chest. His doctor recorded that he considered that the pursuer had made an extraordinary response to what seemed to be a fairly innocuous complaint. He questioned whether the pursuer was suffering from fibromyalgia which was associated with sleep disturbance or fatigue. He described the pursuer as having tender spots on his upper back and recorded that he was resistant to examination and held his neck rigidly from the shoulders. He recommended that the pursuer should receive physiotherapy. Thereafter the pursuer undertook a course of physiotherapy which he paid for privately. At a further visit to his GP on 28 February 2000 the pursuer's doctor recorded that his neck and shoulder pain had continued after the physiotherapy. The doctor recorded that the pursuer kept his neck very stiff and that he appeared very anxious.

[13] On the evening of 3 March 2000 the pursuer again visited the Accident and Emergency Department of Stirling Royal Infirmary complaining of neck, shoulder and back pain. The doctor diagnosed neck sprain and advised the pursuer to continue his analgesia and to use warm towels on his neck when attempting gentle mobilisation. On 31 March 2000 the pursuer returned to his GP practice and Dr Hay recorded that he continued to suffer pain in the midline of his neck and in his lower back. Dr Hay decided to refer the pursuer privately to Mr Ross, a consultant orthopaedic surgeon at Abbey King's Park Hospital in Stirling. In his letter of 31 March 2000 Dr Hay recorded for the first time a definite link between the incident at work and the five-month history of neck and shoulder pain. He stated:

"David's pain came on after an incident at work when a heavy cabinet fell down a flight of stairs and he tried to restrain its fall. Since then he has complained of pain at the lower area of his neck in the midline and also in the lumbar spine. He has pain radiating down over the left trapezius to the anterior aspect of the shoulder. He also feels heaviness and tingling in his arms."

The GP notes on that date do not record any reference to the accident and it is not clear when the pursuer first informed a doctor in his GP practice of it. Mr Ross saw the pursuer and arranged for him to receive an MRI scan which showed a very small disc bulge between the fifth and sixth cervical vertebrae. He then recommended further physiotherapy.

[14] On 23 May 2000 Mr Ross referred the pursuer to Mr Robin Johnston, a consultant neurosurgeon at Ross Hall Hospital, Glasgow. He recorded that the pursuer's problems appeared to be increasing, and involved left sided neck pain, left arm pain and numbness. He also reported the pursuer's description of colour changes in his left forearm and hand and his complaints of low back pain and occasional pins and needles on his left side. Mr Johnston arranged for nerve conduction studies and thought that the pursuer had neurovascular symptoms in his left arm and hand. He suspected that there might be some form of non-osseous thoracic outlet syndrome and referred the pursuer to Mr Bransby-Zachary, a consultant orthopaedic surgeon at Ross Hall, for his opinion. Mr Bransby-Zachary made a clinical diagnosis of thoracic outlet syndrome and referred him to Mr George Welch, a consultant general and vascular surgeon, who on 30 August 2000 performed thoracic outlet decompression, which involved excising and dividing muscles in the area of the neck and shoulder with the aim of taking pressure off the nerves which leave the thorax through the thoracic outlet. This process initially improved the symptoms in the pursuer's left arm but by late September 2000 Mr Welch was reporting to Dr Hay that the pursuer had been suffering neck and intrascapular aches and pains which appeared to be quite distressing. On 27 September 2000 the GP notes recorded that the pursuer stated that the operation had not worked, that he was very negative and stressed by the pain. It was also noted that the pursuer had financial worries.

[15] The pursuer's condition appears to have deteriorated further in November 2000 when he suffered a sudden onset of pain in his neck, radiating into his arm and also lower back pain. He also reported tingling in his left hand and in both feet. As a result Mr Welch arranged for an MRI scan of his cervical and thoracic spine which revealed no lesions. In a letter dated 15 November 2000 Mr Welch reported to Dr Hay that in the absence of any physical or radiological abnormalities it was difficult to explain the pursuer's symptoms. He noted that the pursuer had managed to drive from Tullibody to Glasgow. He expressed the view that, notwithstanding that, the pursuer seemed genuine. He encouraged the pursuer to return to work if his symptoms allowed him to do so.

[16] Thereafter the pursuer sought relief by engaging a private chiropractor but on 16 February 2001 reported to his general medical practitioner that he was still not much better. The GP notes recorded that the pursuer was at work but was debilitated by any heavy work and that he preferred to stay off medication. The pursuer did not attend an appointment with his GP practice on 23 February 2001 and there is no record of him again consulting his general medical practitioner until 15 May 2001 when he was recorded as reporting pain in his lower back and pain and paraesthesia in his right leg. He also reported that he sometimes suffered numbness also in his left leg. On 20 July 2001 he again reported to his GP that he suffered neck and shoulder pain and pain in his right hip. He was keen to be referred to a specialist. He stated that he had had a history over two years of problems with his left arm and his legs, principally his right leg. He complained of his feet being very cold at night when he lay flat. He also spoke of altered sensations, which he described as feeling at times as if his arms and legs did not belong to him. He was not on medication. On examination Dr Young found that movements of his neck and back were mildly restricted but his limbs were normal. He invited the pursuer to make a list of his symptoms and considered referring him to a pain clinic. In early August Dr Young referred the pursuer back to Mr Johnston at Ross Hall Hospital. Mr Johnston wrote to Dr Young on 16 August 2001 describing the pursuer's account of symptoms in his left arm, right leg and left side of his face. He recorded that the pursuer had said that the symptoms were intermittent and were interspersed with times of normality. The pursuer described symptoms which were difficult to explain, including the feeling that parts of his body were not properly attached. On neurological examination, Mr Johnston found no clinical abnormalities to explain the pursuer's case and tentatively expressed the view that there was no organic pathology to be diagnosed. He referred the pursuer to Dr William Durward, a consultant neurologist at Ross Hall, for a cranial MRI scan which did not reveal any cause of his symptoms. Dr Durward therefore instructed a number of blood tests which failed to disclose any cause of the pursuer's condition.

[17] On 2 October 2001 the pursuer returned to his general medical practitioner complaining of pain in the left side of his chest and pain and stiffness in his finger joints. He said he felt generally ill. The doctor recorded that the pursuer appeared to be generally in discomfort and was holding himself stiffly. He recorded that he was suffering from general debility and signed him off work for four weeks. On the next visit on 1 November 2001 the pursuer reported that he was no better and expressed anger that no-one was able to get to the root of his condition. On 16 November 2001 his general medical practitioner, Dr Young, noted that the pursuer was suffering neck pain and stiffness in his left arm and that his left hand appeared mottled and cold. He recorded that he wondered if the pursuer had "RSD", which is Reflex Sympathetic Dystrophy and which is now known as CRPS. This was the first recorded suggestion of this diagnosis which I discuss in more detail in paragraph [40] below. Dr Durward reviewed the pursuer on 12 November 2001 He recorded that he suffered pain in his knees, shins and ankles and that his hands were cold and clammy. He was not convinced that the pursuer had a significant problem affecting his nervous system. He referred him privately to Dr Marshall, a consultant rheumatologist. Dr Marshall saw the pursuer on 11 December 2001. He expressed the view that the pursuer's history had led him to think that he had RSD but that an X-ray and triple phase bone scan had been normal. He referred the pursuer to Professor Belch, a consultant physician at Ninewells Hospital, Dundee, for thermography and a definitive diagnosis. Dr Marshall expressed the view that the pursuer was quite incapacitated by his symptoms and thought that he was very genuine. Dr Young in his evidence explained that at a subsequent visit the pursuer had told him that he was pleased that a specialist had been able to identify what was wrong with him.

In the longer term (January 2002-February 2009)
[18] Dr Young described the pursuer's condition in early 2002 as variable; his pain at times was much worse than at other times. He had good days and bad days. If he attempted too much activity he would suffer pain for several days. Dr Young's medical notes also recorded that the pursuer's left hand were mottled and discoloured.

[19] Dr Muir, a vascular physician and associate specialist at Ninewells Hospital, Dundee, examined the pursuer on 21 March 2002 and noted symptoms of reduced blood supply in his hands and feet. His hands were mottled and his nails, particularly on the left, were dystrophic (thickened and ridged). Dr Muir detected no loss of sensation. He recorded the pursuer's description of burning pain and his complaint of cold feet in bed and allodynia (painful sensitivity to stimuli which normally would not cause pain). Dr Muir arranged for nerve conduction studies which were normal and an MR angiogram of the thoracic outlet which was unremarkable. Thermography was performed and revealed paradoxical results with one of the pursuer's limbs being warmer in a cold room and colder in a hot room. Dr Muir explained that this indicated vascular instability. Among the medications which Dr Muir prescribed was Pamidronate (a drug which lowers blood calcium) which was then a new technique for addressing CRPS. Dr Muir described the pursuer on this occasion as appearing to be "in an extraordinary amount of pain". He suggested that the nearest diagnosis he could give was CRPS.

[20] On 23 September 2002 the pursuer was admitted by Professor Belch to the clinical investigation unit at Ninewells Hospital on a diagnosis of CRPS and was given an intravenous course of Pamidronate, and Iloprost (to dilate the blood vessels). The pursuer complained of pain in other limbs and that his condition was deteriorating. He had sensory, motor and dystrophic signs consistent with the diagnosis of CRPS. Dr Muir arranged for the pursuer to see Dr MacRae, a pain specialist at Ninewells, on the following day. Dr MacRae recorded that the pursuer clearly had CRPS, had had that condition since 1999 and had not been well served by his past treatment. He expressed concern about the pursuer's deterioration.

[21] The pursuer was again admitted to the clinical investigations unit at Ninewells on 16 December 2002 for a three-day course of Iloprost which gave no relief. Dr Muir saw the pursuer again on or after 19 February 2003 when he was re-admitted to Ninewells and given a subcutaneous Lignocaine infusion for pain relief and Calcitonin (a drug used to lower blood calcium). The latter made the pursuer nauseous, causing him to vomit, but appeared to give him some relief from pain. An MRI scan of the pursuer's brain revealed no abnormalities. Dr Muir reviewed the pursuer on 4 September 2003 and wrote to his general medical practitioner, recording that the pursuer felt better and had good days and bad days. He advised that everything that had been tried had helped only for a few days and suggested that all that remained was pain management.

[22] Dr Muir's evidence was taken on commission in October 2006. He expressed the view that the pursuer's vascular symptoms were consistent with CRPS. On cross-examination he accepted that the pursuer had told him that a cabinet had toppled onto the pursuer's left shoulder and that pain developed in the ensuing weeks. He was not aware when treating the pursuer that the pursuer had not reported the accident to his GP practice for several months. When he saw the pursuer he observed no muscle wasting on his left arm and was not aware that he had a limp. Sadly, since he gave evidence Dr Muir has died.

[23] In July 2003 Dr Young referred the pursuer to the pain management clinic at Stirling Royal Infirmary, where he came under the supervision of Dr Robin McKinlay, a consultant in anaesthesia and pain management. He involved Mrs Liz Macleod in assessing the pursuer and as his therapist in pain management. As she had a long waiting list, it was not until 29 March 2004 that Mrs MacLeod was able to see the pursuer. Mrs MacLeod, who was, until she retired, a physiotherapist and pain management specialist, gave evidence and explained that her role was to help patients manage to live with long-term pain for which there was no known cure. She described the pursuer as a young man who was struggling. He was hoping to find a cure for his condition and her job was to develop a relationship of trust with him to allow him to commit himself to pain management. She saw him on six occasions to teach him methods of dealing with his pain. The pursuer had difficulty concentrating because of his medication but worked hard. He received valuable support from his wife. Both Dr McKinlay and Mrs MacLeod thought that the pursuer's litigation was causing him stress and was limiting his progress in addressing pain management. The pursuer felt guilt over the effect of his condition on his wife. Mrs MacLeod thought his description of good days and bad days and unexpected flare-ups of pain was typical of a person suffering chronic pain. She thought he was genuine in his complaints but accepted that her role was to develop a relationship with a patient in pain and not to challenge the veracity of the patient's account.

[24] The pursuer attended his GP regularly in this period. He was repeatedly signed off work for long periods on a diagnosis of CRPS. The GP records reveal the various drugs which he was given to alleviate his pain and also the pursuer's varying complaints of pain. On 12 December 2002 it is recorded that the pursuer reported pain in the side of his face similar to his shoulder and arm pain. On 28 September 2003 an entry records obvious mottling on both hands. On that occasion Dr Young recorded that the pursuer was becoming quite despondent and considered prescribing an anti-depressant. On 3 February 2004 the pursuer complained of pain which was centred mainly around his neck and left shoulder but was also present in his left arm and right hip. He was recorded as holding himself stiffly. Dr Young found his symptoms confusing and suggested that the pursuer keep a symptom diary. On 30 March 2004, the day after he had seen Mrs MacLeod, the pursuer complained of pain in his left lower ribs. He said that he was managing to keep himself occupied and was reasonably upbeat. In May 2004 he asked for a note of the drugs he required in order to take a holiday abroad. In September 2004 the pursuer complained of low back pain and stiffness and said that his legs felt weak. In the same month, Dr McKinlay, the consultant in anaesthesia and pain management at Stirling Royal Infirmary, prescribed anti-depressants for the pursuer. When Dr Young saw him on 17 February 2005 the pursuer reported pain in his spine, in both legs and in his left arm and Dr Young recorded that he appeared quite upbeat in his manner. On 19 April 2005 Dr Young saw the pursuer and recorded his stiff, stooping gait and obvious discomfort. The pursuer complained of low back pain. Dr Young noted that the pursuer was stressed by the legal proceedings. In May 2005 he recorded that the pursuer had been researching on the internet for possible treatments and had asked about Ketamine infusions.

[25] In October 2005 the pursuer reported to Dr Young that he had suffered sudden back pain when stooping to pick up a towel and had been concerned that his back would seize up. As a result, when he was on holiday in Alicante he was confined to his apartment and the poolside. He stated that his previous employers had offered him work but that he thought that he could not cope when he had only one good day a week. Dr Young expressed the view in evidence that as the pursuer's condition varied from day to day it would have been too much for him to travel to work and remain at work for a reasonable time. On 14 February 2006 the pursuer complained of an unrelated problem in his left elbow which Dr Young thought might have been golfer's elbow. Mr Pollock explained in evidence that this may have been caused by use of the elbow on a task which the pursuer did not perform frequently.

[26] On 7 March 2006 the pursuer informed Dr Young of an abrupt onset of pain in his ribs, back, neck and shoulder which had no identified precipitating cause. The pursuer held himself in a slouched posture and was afraid to use his upper body and arms. This posture was similar to his presentation when giving evidence in court. See paragraph [34] below. Dr Young wondered if he was suffering from fibromyalgia. On 11 May 2006 the pursuer complained of bone pain in his shins and forearms which was different from the normal muscle pain which he encountered and which lasted between five and ten minutes every half hour. He said that he felt stressed about financial issues, was tired and slept badly. Again Dr Young noted his very poor posture.

[27] In later 2006 as the first diet of these proceedings approached, there were entries in the GP notes recording a lowering of the pursuer's mood. On 30 June 2006 he was noted as saying that he felt generally useless. Dr Young recorded that he had been in a low mood for a while when his pain increased, especially in his left elbow. He was stressed by his financial circumstances. Dr Young prescribed an anti-depressant. On 26 September 2006 the pursuer expressed his frustration with the differing medical opinions he had received. This occurred after he had been to a consultation with Dr Carmichael, who had advised him that it was possible but not probable that he had CRPS. He felt that he was not making progress. In November 2006 the pursuer expressed frustration that his legal proceedings had not been completed.

[28] On 30 January 2007 Dr Young recorded that the pursuer's chronic pain remained unchanged and that he had decided to tackle his low mood without medication. In April 2007 he reported that he had seen Mrs MacLeod again and that his pain was controlled only if he remained fairly inactive. In late June 2007 he complained of having suffered increased low back pain for four weeks. Dr Young again noted the pursuer's stiff and awkward gait and his complaints of discomfort on even gentle palpation of his paravertebral muscles. On 18 September 2007 the pursuer complained of leg spasms during the night and Dr Young recorded his poor posture, slow gait and the mottling of his hands. On 18 December 2007 the pursuer complained of poor sleep and that he was in the midst of a flare up. He said that he hardly went out of doors and wished to address his low mood. In February 2008 he again complained of limited sleep and stress from a bereavement. Dr Young considered doing a HADS (Hospital Anxiety Depression Score) assessment, which was a questionnaire. On 6 June 2008 the GP notes record the pursuer as being "cheerfully despondent" in manner. He complained of tiredness all the time and significant pain mainly in his legs, knees and fingers. On examination he was found to have mottling on his hands and arms, stiff and painful wrists and poor fist formation with his fingers held in a claw like position. On 15 September 2008 his HADS assessment was recorded. Dr Young explained that that suggested that he was significantly depressed and anxious.

[29] In his evidence to the court, Dr Young expressed the view that the pursuer was genuine in his complaints of pain. He described him as open and quite genuine. The severity of his symptoms varied from time to time. The pursuer was anxious to take the advice of specialists and was frustrated that he had not made progress. He stated that some of the pursuer's symptoms were difficult to explain but he did not think that he exaggerated to any significant degree.

[30] I also heard the evidence of the pursuer's wife and his parents. His wife, Laura Kerr, spoke of meeting him in 1999 and of the contrast between his life then and after the accident. They married in November 2002. She described him when she first got to know him as outgoing and sociable, a workaholic who often worked seven days a week as an electrician and who was active in his free time. She described the pain which he suffered in his left shoulder from late 1999 and early 2000. She recalled that he had told her that he had suffered an accident at work which caused him pain in his shoulder and that he had sought medical assistance at the time but the doctor had not been not free. Before the accident he had assisted with household chores but that ceased after an operation on his shoulder. He had tried to keep up his employment in 2000 and 2001 but had suffered considerable pain from having to drive long distances. He was often in tears at night after working. By 2006 he was in severe pain all over his body. On a good day he would get up and visit local shops by himself or the supermarket with her; on a bad day he would not even dress. He would lie down or sit on a sofa in the house. Since 2006 his condition had worsened as he had ceased to care about himself. He never admitted being depressed and tried to put on a good front. He slept badly because of his pain. He had no quality of life. They rarely had sexual relations. His pain prevented him from acting spontaneously. She had been employed by Tesco Stores plc until about 2002 but had given up her job to care for the pursuer. She had tried to run a car valetting business from her home and had a website but relied on family members or friends to clean the cars when she got business. She now did all the housework, cooking and gardening and, since obtaining her driving licence, she shopped by herself. On his bad days she had to help him to get out of the bath and with his dressing.

[31] The pursuer's mother, Christina Kerr, spoke of the change in the pursuer since 1999. He had been a hard-working, pleasant and sociable young man and had become quiet and subdued, spending a lot of time within his home. She recalled accompanying him to Stirling Royal Infirmary on one occasion shortly after he had hurt his shoulder or neck at work but could not recall when that was. Michael Kerr, the pursuer's father, spoke of the pursuer having been a good worker and socially outgoing before his accident. The pursuer now complained of pain in his arms, back and leg. He had taken the pursuer to many hospital appointments. The pursuer now spent a lot of time at home. Mr Kerr allowed him his privacy but visited him at home once or twice a week or telephoned him. Both of the pursuer's parents expressed the view that the pursuer was genuine in his complaints of pain.

The medication prescribed for the pursuer
[32] The pursuer has for some time taken a range of medication, some of which have side effects. He has been prescribed Gabapentin, which is used to treat neuropathic pain and which causes drowsiness and affects the memory. For several years he has also been prescribed morphine sulphate (40 mg twice per day), a long acting opiate, and he takes oxynorm, an opiate painkiller, when needed. Opiates can alter mood and can contribute to a depressed mood and irritability. For several years the pursuer has also been prescribed anti-depressants. The potential side effects of Gabapentin and the opiate painkillers are well known. Several doctors who gave evidence expressed concern that the pursuer, who was a comparatively young man, had been prescribed a high dose of morphine sulphate in the long term. But the medical witnesses were not able to opine on the extent to which the drugs had affected the pursuer's memory and his concentration.

The pursuer's post-incident employment
[33] The pursuer was off work for two weeks from 28 January until 11 February 2000 because of neck and shoulder pain. He returned to work but, as a result of continued pain, he was off work from 14 April 2000 until 27 November 2000, when financial problems caused him to return to work, although he remained in pain. He was signed off work for 4 weeks in early October 2001 as a result of pain, discomfort and a general feeling of illness. He attempted to return to work at the beginning of November 2001 but felt unable to continue. He has not worked since 7 November 2001.

The pursuer's presentation in court and elsewhere: the surveillance videos
[34] The pursuer gave evidence over four days at the end of October and in early November 2006. On entering and leaving court he walked with a limp. He was stooped and held his left arm into his body in a guarded position. He repeatedly showed signs of discomfort or pain. He has presented himself similarly to several medical experts, including Dr Carmichael, Dr Stone and Dr Rogers but not to Dr Gill. The defenders have led evidence of covert surveillance of the pursuer on twenty-one days between 2003 and 2006. The videos showed the pursuer near his home in Tullibody, shopping with his wife in Falkirk or Stirling, going to local shops, loading and carrying shopping, and speaking to people in the locality, and on one occasion in August 2006 visiting the Murrayfield Hospital in Edinburgh.

[35] In the surveillance videos the pursuer generally appeared to have normal mobility, apart from a dipping gait or a limp and an occasional appearance of protecting his left arm, and did not manifest significant pain. This was in marked contrast to his presentation in court. There were several instances where he appeared to use his left arm in preference to his right arm (for example on 8 January 2004, when he was seen carrying shopping in his left hand and using that hand to open the side door and the back door of his car, and other instances on 15 July 2003, 8 November 2004, 10 February 2006, 7 June 2006 and 3 August 2006). On some occasions, such as 15 July 2003 and 12 November 2003, he was seen swinging his left arm. There were however indicators which supported the view that the pursuer did have disabilities. On several occasions he was seen to be walking with a limp in his right leg which was consistent with his description of pain in that limb. He also allowed his wife to carry heavy shopping while he appeared to carry lighter bags. While, as I have said, on some occasions he used his left arm in preference to his right arm, this behaviour was not inconsistent with his condition and may have been, as Dr Carmichael suggested, an example of him doing things and paying for the activity later on with increased pain. The absence of muscle wasting in the pursuer's left arm also supports the view that he has used it at least intermittently. The videos also showed that on many days the pursuer remained indoors and, if he came out, it was only for a relatively short period. While the videos call into question at least the frequency of the occurrence of pain of the intensity manifested by the pursuer in court, there was, as Dr Carmichael said, no evidence in the videos that the pursuer was capable of prolonged activity.

The diagnosis of the pursuer's condition by expert witnesses
[36] Dr Murray Carmichael, a now retired consultant anaesthetist and specialist in chronic pain management at the Western General Hospital in Edinburgh, produced reports and gave evidence. He examined the pursuer on 18 January 2005, and noted that his complaints were of a continuing burning pain on the left side of his neck, extending into his shoulder, painful sensations and hypersensitivity in his left hand which could spread to the right hand, burning, tingling sensations in his left arm, especially at night, aching pain in his right lower ribs, sharp stabbing pain in his right hip, back pain extending to the base of his spine and coldness in both feet. On examining the pursuer, he observed spasm in the trapezius muscle on the left side of the neck and mottling of both arms and hands. He noted discolouration and degeneration of the fingernails. Both hands were cold. The back of the pursuer's left wrist was shiny and swollen. He detected hypersensitivity to light touch over the lower neck and shoulder and on the arms and hands, tenderness in the lumbo-sacral region, and feet which were cold and had altered sensation. He considered those symptoms and signs to be evidence of abnormalities in the pursuer's sensory system and autonomic nervous system. He opined that the pursuer's symptoms and signs on his left arm fitted the criteria for CRPS Type 1. He had difficulty in explaining the other symptoms elsewhere in the body such as temperature variability and colour changes and the muscle spasms in the neck and shoulder stiffness. He suggested that the former might be due to sympathetic nerve hyperactivity and the latter might be the result of either tissue damage at the time of the original injury or changes in use or posture secondary to a painful arm.

[37] He examined the pursuer again on 18 September 2006. He detected a shift in the focus of the pursuer's complaints. While the pursuer continued to complain of left shoulder pain, he also described a continuous pain in the right hip and leg. His feet regularly became cold and numb and he sometimes suffered what he called a cramp-like spasm of the muscles around his right hip. On examination, Dr Carmichael looked for the signs which might confirm a diagnosis of CRPS. He concluded that the pursuer did not show the classic signs and symptoms which he would have expected to develop over the eighteen months since he last examined him. There appeared to be reduced hypersensitivity in his left arm. He observed that the pain symptoms in the neck, shoulder, hip and legs appeared to be much more distressing than those in his left arm. He concluded that while CRPS might be present to a small degree, it was only part of a bigger picture as something appeared to be affecting his whole body. He said that the pursuer's description of pain was consistent with a lesion in the spinal cord following a whiplash injury. He questioned whether there was an undiagnosed injury to the spinal cord which was not secondary to the pain in the left arm and shoulder. He considered that a diagnosis of Somatoform Pain Disorder ("SPD") was outside his area of expertise. He recommended that a neurologist should examine the pursuer.

[38] Dr Jon Stone, a Consultant Neurologist and Honorary Senior Lecturer in Neurology at the Western General Hospital in Edinburgh, examined the pursuer on 27 September 2006 and produced a detailed report dated 20 October 2006, a further report dated 17 September 2008 and two further reports dated 30 January 2009. At the first interview he had access to the pursuer's medical records and also the prior expert medical reports. He said that pain was the pursuer's overwhelming problem and also recorded his complaints of the sensory and motor disturbance of his limbs, lack of sleep, fatigue, problems with memory and concentration and also his bladder symptoms. As well as recording the pursuer's account of good days and bad days, his recollection of the accident and his subsequent health, he reviewed the medical notes and the expert reports. He reviewed the records of the Department of Work and Pensions and the surveillance video evidence. In relation to the latter, he noted that the pursuer did not appear disabled in some, but in others he manifested a limp which suggested pain in his right leg. Dr Stone pointed out that the pursuer's primary complaints of pain and fatigue were not readily observable. He recognised that there were major discrepancies between his presentation on examination when he held his left arm in a cradled position and his appearance in three scenes in the video footage where he used his left hand preferentially. The video evidence and the instances of exaggeration in the pursuer's self descriptions recorded in the Department of Work and Pensions records persuaded Dr Stone that there was some exaggeration in the pursuer's account of his condition.

[39] In his first report Dr Stone recorded that he had conducted a structured interview for DSM-IV psychiatric disorder and concluded that the pursuer then did not meet any criterion for current or past major depression. He also carried out a neurological examination of the pursuer. He observed that the pursuer's left hand was mottled and warmer than the right hand and that he had dystrophic nails. Tone in the pursuer's upper limbs was normal, allowing for pain in his left arm. He detected evidence of functional disorder when he encountered collapsing weakness in the pursuer's left arm. Dr Stone recorded the twisted manner in which the pursuer lay on the couch and the pursuer's explanation that that made him feel that his body was straight. The pursuer reported to him that otherwise one leg felt longer than the other and he felt that his hip had popped out. Dr Stone also detected signs of functional weakness (including Hoover's sign) in the pursuer's lower limbs; he observed reduced plantar flexion and dorsiflexion in the right ankle. He also found an excessive response to normal stimuli in both legs. He recorded the pursuer's comment that he found it difficult to perform movements when instructed to do so but that doing the same things naturally was easier for him.

[40] Dr Stone diagnosed the pursuer as fulfilling the criteria of CRPS Type 1. The 1994 criteria by the International Association for the Study of Pain, which are still the subject of scientific debate, are as follows:

(1) The presence of an initiating noxious event or a cause of immobilization.

(2) Continuing pain, allodynia, or hyperalgesia with which the pain is disproportionate to any inciting event.

(3) Evidence at some time of oedema, changes in skin blood flow, or abnormal sudomotor activity in the region of the pain.

(4) This diagnosis is excluded by the existence of condition that otherwise would account for the degree of pain and dysfunction.

The fulfilment of the first criterion in this case depended on the acceptance of the assertion that the incident of 28 September 1999 was the triggering event. He recognised that the diagnostic criteria were "quite subjective" and that there were controversies as to the role played by organic causes, by immobility and by psychogenic or functional weakness. He referred to, and annexed to his report, a chapter from "Neurology and Trauma" (OUP 2006) in which he and Michael Sharpe discussed functional symptoms and signs in neurology. In that chapter he expressed the view that in many cases psychological, biological (including injury or disease) and social factors brought about dysfunction of the nervous system. Thus he opined in his report that psychological and behavioural factors, and especially immobility, were often very important in the development of symptoms which met the criteria of CRPS. Protection of a limb from pain could lead to a vicious circle of immobility and worsening symptoms. In his first report he also considered the possibility that the pursuer was malingering and rejected that view, concluding that his apparent state was "mostly genuine". I discuss Dr Stone's views on malingering in paragraph [73] below.

[41] In his first report Dr Stone also considered a report by Dr Rogers (see paragraph [45] below) and agreed with his view that the pursuer's condition resembled persistent Somatoform Pain Disorder (F45.4 in ICD-10 - the International Classification of Diseases (World Health Organization 1992)). The DSM-IV (Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association 1994) criteria (307.80) for Somatoform Pain Disorder ("SPD") are:

(A) Pain in one or more anatomical sites is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention.

(B) The pain causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

(C) Psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain.

(D) The symptom or deficit is not intentionally produced or feigned (as in Factitious Disorder or Malingering).

(E) The pain is not better accounted for by a Mood, Anxiety, or Psychotic Disorder and does not meet the criteria for Dyspareunia.

At that time Dr Stone was not satisfied that there had been demonstrated to be sufficient psychosocial factors in the pursuer's history which would have caused chronic pain, although he recognised that there was evidence of low mood which might have been a contributory factor. Thus he did not diagnose SPD in his first report.

[42] Dr Stone's second report dated 17 September 2008 followed his examination of the pursuer on 15 August 2008. Again he recorded the pursuer's description of symptoms of pain centred on the left of his neck and left shoulder and arm but also in his right hip and of bizarre sensory and motor disturbance of his limbs. The latter included feeling that his left arm was in the wrong place, an inability on occasion to feel his body at all when lying down, his legs feeling heavy and sore at night and difficulty in moving his legs. Dr Stone also conducted a physical examination which had very similar results to his first examination (paragraph [39] above). He also discussed the pursuer's mood and noted his markedly reduced libido and his feelings of worthlessness and the pointlessness of his life. In that report he stated that the pursuer fulfilled the criteria of CRPS Type 1 and also those of SPD, conversion disorder and major depression of moderate severity. In his report and in his evidence Dr Stone explained that while in 2006 he had not detected sufficient evidence of low mood and related symptoms to meet the DSM-IV criteria of a major depressive disorder of moderate severity, his examination of the pursuer in August 2008 had revealed symptoms which met those criteria. Because of that diagnosis, he expressed the view that the pursuer now also met the criteria of SPD. See paragraph [41] above. He explained that SPD and CRPS Type 1 were not mutually exclusive diagnoses.

[43] Dr Stone also expressed the opinion that the pursuer described symptoms which were typical of conversion disorder. In particular he considered the pursuer's mild weakness in his left arm and right leg, his difficulty controlling his limbs, the repeated occasions when he felt that his body was in a correct posture when it was not, and the presence of positive physical signs of functional weakness to be typical of conversion disorder (DSM-IV-300.11). The definition of conversion disorder in DSM-IV is as follows:

(1) One or more symptoms or deficits are present that affect voluntary motor or sensory function that suggest a neurologic or other general medical condition.

(2) Psychologic factors are judged to be associated with the symptom or deficit because conflicts or other stressors precede the initiation or exacerbation of the symptom or deficit.

(3) The symptom or deficit is not intentionally produced or feigned (as in factitious disorder or malingering).

(4) The symptom or deficit, after appropriate investigation, cannot be explained fully by a general medical condition, the direct effects of a substance, or as a culturally sanctioned behaviour or experience.

(5) The symptom or deficit causes clinically significant distress or impairment in social, occupational, or other important areas of functioning or warrants medical evaluation.

(6) The symptom or deficit is not limited to pain or sexual dysfunction, does not occur exclusively during the course of somatization disorder, and is not better accounted for by another mental disorder.

Thus in Dr Stone's opinion the pursuer's condition fell within four diagnostic labels (CRPS, SPD, depression and conversion disorder) which overlapped and which together described experiences of pain, weakness, tiredness, sleep problems and misery which were not due to an underlying disease. They were, he said, different perspectives on the same problem.

[44] When Dr Stone returned to give evidence in February 2009 he commented further on the medical reports which had been instructed on behalf of the defenders. To place his comments in the context of the views which he addressed, I discuss them in paragraphs [59] - [61] below. On cross-examination, Dr Stone acknowledged that the pursuer had not told him of his membership of a darts club which would require fine motor skills, at least in the right hand, but he did not think that inconsistent with his diagnosis. He accepted that the pursuer would perform better when he was not paying attention to what he was doing than when he was asked to move his limbs. While Dr Stone thought that there was a degree of exaggeration in the pursuer's reports of his own disability, he considered that one had to allow for the variability of the pursuer's symptoms from day to day and his feeling of a need to convince doctors about his condition as well as any conscious or subconscious motivation to claim compensation. He accepted that it was surprising that the pursuer had not mentioned the accident to the general medical practitioner in October 1999. He also accepted that, if the video surveillance recorded the pursuer going out of his house on seventeen of the twenty one days on which he was filmed at random, that suggested to him that the pursuer's condition was not as bad as he considered it to be when the pursuer reported suffering between six and ten bad days per fortnight. While he had initially been surprised to see the pursuer use his left arm preferentially on three occasions in the videos, such paradoxical behaviour was not uncommon with patients who had conversion disorder as they might use their often painful limbs when they were not thinking of their problems. Dr Stone considered that he had ruled out malingering in his report.

[45] The pursuer also underwent psychiatric examination. Dr T D Rogers, a consultant psychiatrist at Haddington, interviewed the pursuer on 15 September 2006. The pursuer gave Dr Rogers a description of consistent pain in his left shoulder, burning pain in his spine, altered sensations in his right leg, and sensitivity in his left shoulder. The weight of the bed covers caused him to feel intense pain in his right leg. He also described hypersensitivity to noise and a range of altered sensations. He spoke of the gradual onset of fatigue. He did not describe specific psychiatric symptoms; he had a low mood on bad days but felt positive and upbeat on good days and he did not describe anxiety symptoms. His mood was good throughout the interview. He exhibited pain behaviour by changing posture and getting up from his seat on several occasions. He noted that the pursuer complained of chronic pain and described a number of complex neuro-behavioural symptoms including altered sensations, hypersensitivity and perceptual abnormalities, including allodynia. While his symptoms were characteristic of CRPS, that was not a psychiatric diagnosis. Concentrating on psychiatry, Dr Rogers described the pursuer's symptoms as being reminiscent of persistent SPD (F45.4 in ICD 10) but he could not make that diagnosis with complete confidence as the criteria were not fully met in the absence of emotional conflict or psychosocial problems as the main causes of his pain. See criterion (C) in paragraph [41] above.

[46] Dr Rogers interviewed the pursuer again on 25 September 2008. The pursuer continued to describe constant pain in his left shoulder and pain in his spine. He also described altered sensation in his arms and legs, increased sensitivity to touch, increased sensitivity to pain and allodynia. He spoke of continued fatigue. Dr Rogers recorded that the most significant change since the first examination was the pursuer's reduction in mood, involving a loss of interest in his previous activities, lack of pleasure in life and low self-esteem. He expressed guilt about the burden which he imposed on his wife and his dependence on State benefits. He had suffered a loss of libido. He was tearful at times but was reluctant to admit to being depressed. Dr Rogers described this as "smiling depression", a reluctance to admit psychiatric problems. He expressed the opinion that the pursuer's mood had changed markedly since 2006 and he was suffering from a depressive illness. He opined that the pursuer's long-term pain was a major contributory factor to his depression. He categorised the illness as a moderate depressive episode (F32.1 in ICD 10). He explained that the depression was classified as moderate because it affected daily living but was not sufficiently severe to require hospitalisation. As a result of this diagnosis, criterion (C) of SPD was met (see paragraph [41] above) and Dr Rogers opined that the pursuer suffered from persistent SPD. His sense of hopelessness would be likely to contribute to the chronic pain as it would be an obstacle to engaging fully with pain management. Dr Rogers was not able to comment on the diagnosis of conversion disorder as it was a diagnosis which depended on a physical examination by relevant specialists.

[47] On cross-examination Dr Rogers acknowledged that, while he had read of the surveillance videos in other medical reports, he had not viewed them. He confirmed that in September 2006 the pursuer had given him an account of the accident which involved the circuit breaker tipping towards him at some stage. He had not discussed with the pursuer his pre-accident medical record, including the evidence of lethargy in the immediately preceding weeks. He confirmed that the pursuer had not told him about the mileage which he drove nor that he had been in a darts club in a local public house. He had not diagnosed depression in 2006 but he found that the pursuer was depressed in 2008. His comments on the views of the medical experts instructed by the defenders are set out in paragraph [62] below.

[48] Mr John Pollock, a consultant vascular surgeon, examined the pursuer on four occasions, namely 13 August 2002, 11 March 2003, 27 January 2004 and 25 July 2006. He commented on the pursuer's very complex history which had involved a huge amount of specialist investigation, which, he said, was unique in his experience. The pursuer had had a normal gait on each of the occasions when he had interviewed him. He held his left arm bent at the elbow in a pugilistic manner at the first two examinations but on the third and fourth examinations he held his arm limp at his side as if he had had a stroke. He recorded that the pursuer complained of left sided neck pain radiating into his left shoulder and into his left arm. He also described coldness of his feet, and pain in his legs, particularly when walking. He complained of colour changes in both hands; but Mr Pollock did not observe such changes. While the pursuer resisted moving his left shoulder joint, Mr Pollock found that there was full range of passive movement in that joint. He could find no neurological abnormality on examination. He recognised that the medical staff at Ninewells Hospital had diagnosed CRPS but considered that they did not have sufficient findings for a clear diagnosis. In particular, they had not carried out an upper dorsal thoracic sympathectomy, which involved the injection of anaesthetic into the upper dorsal nerves to check for temperature changes.

[49] By the time of his third examination in January 2004, Mr Pollock had seen surveillance videos of the pursuer which, he said, revealed only a dipping in gait which suggested a problem in the right hip but no restriction of function of his left arm. He did not think that the hip problem was connected with the accident. Again on examination he detected voluntary restriction of movement of the neck and shoulder joint and he found no evidence of pain radiating into the upper limbs. He discovered no differences in temperature between the hands and normal hair growth but observed some discolouration of the finger nails, more prominently in the left hand, which he attributed to fungal growth. While he observed a degree of cyanosis of the left hand, that disappeared rapidly with movements. He could find none of the characteristics of CRPS type 1. In addition he did not consider the early onset of symptoms and thereafter the pursuer's ability to return to work, which involved driving long distances for a prolonged period, were consistent with CRPS caused by the relatively trivial injury which he suffered in the accident. After the fourth examination in July 2006 Mr Pollock again detected voluntary restriction of the neck and left shoulder. While the pursuer allowed his left arm to hang limp, he was suffering from tendonitis of the left elbow which suggested that he moved his arm significantly. The only physical sign of note was mild fungal infection of the fingers of his left hand. Mr Pollock opined that there were no signs of CRPS other than the initial injury. The pursuer had driven a manually operated car for a considerable mileage. This was not consistent with his dysfunction on examination. He expressed the view that there was nothing physically wrong with the pursuer and that he had reacted in a bizarre and exaggerated way to his injury. He thought that the pursuit of compensation was an important factor in the pursuer's case. The alternative explanation was that the pursuer suffered from a gross psychological disturbance.

[50] On cross-examination Mr Pollock conceded that more members of the medical staff at Ninewells, including Professor Belch, had accepted the diagnosis of CRPS than he had thought. He also accepted that that had been Dr Carmichael's diagnosis. But he criticised the Ninewells team for failing to carry out a bone scan to confirm their diagnosis and pointed out that Dr Marshall had carried out such a scan which did not support his initial view that the pursuer suffered from CRPS. Mr Pollock confirmed that conversion disorder was outside his area of expertise but thought that the pursuer might have a gross mental upset and might benefit from psychiatric assistance.

[51] Dr Derek Chiswick, a consultant forensic psychiatrist at the Royal Edinburgh Hospital, examined the pursuer at the Murrayfield Hospital in Edinburgh on 1 August 2003 at the request of the defenders' agents and produced a report dated 25 February 2004. He took a history from the pursuer, including his account of the accident. In that account the pursuer spoke of trying to grab the circuit breaker and of it banging his left shoulder. He spoke of having the weight of the cabinet on his left shoulder. Dr Chiswick noted the pursuer's employment history after the accident and thought it significant that the pursuer was angry with his employers when he ceased working in November 2001 as they had given him work which was beneath his abilities, had required him to drive long distances and failed to give him work which was not so painful. Dr Chiswick also interviewed Mrs Kerr who described her husband as remaining in the house for much of the day and not going out for long because of pain. He had observed the pursuer when he arrived at the hospital walking with what he called a "bizarre broad-based gait". He commented that this gait was completely different from the limp which he observed in the surveillance videos which were filmed between July 2003 and January 2004. During the interview the pursuer held his left arm immobile and his neck appeared stiff but he made vigorous movements of the head and neck for emphasis. On considering the medical records, Dr Chiswick expressed surprise that the GP notes did not refer to the accident, to which the pursuer attributed his condition, for several months after it had occurred. He observed that medical opinion was divided as to whether the pursuer had CRPS. He expressed concern that the pursuer had been given opioid analgesia (morphine sulphate) for a prolonged period which might have given rise to a condition of dependency. He considered that there were inconsistencies in the pursuer's account and a gross discrepancy between what the pursuer described as his condition and his demeanour when he was being examined. He opined that the pursuer was not suffering from any psychiatric condition and that, if he did not have CRPS, he was giving a false account of his symptoms in pursuit of compensation. That, he opined, was the probable explanation of his complaint. He said that at the 2003 interview the pursuer's hands appeared normal, but when invited to confirm this on re-examination he volunteered that at a further interview in 2006 he had noticed that the nails on his left hand had appeared abnormal.

[52] Some of Dr Chiswick's evidence in chief, for example his description of the pursuer not guarding his arm during the interview, moving his arms and hands vigorously in gesture and complaining of pain when he gripped his left hand were events which occurred in that second interview on 3 August 2006 and were recorded in a report dated 20 October 2006. Again in that report Dr Chiswick recorded that the pursuer expressed anger at his former employers. He suggested that there were inconsistencies between the degree of pain which the pursuer described on the one hand and, on the other, his appearance at the interview, when he moved freely, and in the video evidence, and his ability to drive, go on holiday and attend social functions. He confirmed his view that, if the pursuer did not suffer from CRPS, he was giving a false account and added that he had become dependent on morphine sulphate. His complaints of pain were necessary to obtain the continued prescription of this medication.

[53] The third medical expert whom the defenders called as a witness was Dr David Gill, a consultant psychiatrist based at the Lister Hospital, Stevenage, Hertfordshire, who interviewed the pursuer in Harley Street, London on 12 November 2008. In his detailed report Dr Gill recorded the pursuer's description of the accident, his medical history, his lifestyle and his symptoms. He recorded the reports of his prior medical history in some detail. On examining the pursuer, Dr Gill observed that he did not appear to be in pain despite his flight from Scotland to London and that he appeared healthy and cheerful. He said that the pursuer was chatty and appeared to him to be "quite a likeable chap". He was struck by what he called the "gross incongruity" between this presentation and the number and severity of the health problems which he described. The pursuer appeared cheerful and chatty and Dr Gill detected no clinical sign of depression.

[54] Because the pursuer complained of difficulties with memory and concentration, Dr Gill carried out some effort tests, which gave anomalous results as the pursuer scored badly on the easy sub-tests but his score did not fall as the tests got more difficult. This suggested to him that the pursuer had not made a full effort on the tests and supported the view that he was exaggerating not only his reported difficulties with memory and concentration but also his other symptoms. Dr Gill also interviewed Mrs Kerr, the pursuer's wife, who described the change in his lifestyle since the accident. She said it was a nightmare. There had been no improvement in his condition and they had no social life and no sex life. Before the accident the pursuer did not have health problems, was hardworking and "would have a laugh". They had a close relationship and his parents were very supportive.

[55] Dr Gill also discussed the expert medical evidence contained in various reports. He criticised Dr Stone, whom he described as an "erudite neurologist", for venturing outside his area of qualification in expressing views on psychiatric conditions. He suggested that, as a result, there was a question over the status of Dr Stone's reports. While Dr Carmichael had called for the involvement of a neurologist, Dr Stone was not able to explain the pursuer's symptoms by reference only to neurology. He suggested that Dr Stone had misused DSM-IV which was not designed for medico-legal use but for research and for clinical assessments. In addition DSM-IV was multi-axial and Dr Stone had used only Axis I and not, in particular, Axes II, III and IV, which dealt with personality disorders/mental retardation, general medical conditions and psychosocial and environmental problems respectively. In relation to Axis II he suggested that the pursuer's personality might explain a tendency towards experiencing unexplained physical symptoms; his urinary symptoms might be relevant to Axis III and his dissatisfaction with the nature of his employment in 2001 was relevant to Axis IV. He also criticised Dr Stone for not ruling out malingering as DSM-IV required.

[56] Dr Gill expressed doubt that there was any connection between the pursuer's accident and the ten years of severe symptoms and disability of which he complained. He observed that the many specialists who had treated the pursuer had not come up with a generally agreed diagnosis. He said that the pursuer had visited the doctor before the accident more frequently than most young males and suggested that he might have a tendency to interpret as pathological the normal aches and pains which everyone experienced. He considered the pursuer's account of good health before the accident to be implausible. He found it strange that the GP notes did not refer to the accident for many months after the event. The pursuer complained of abdominal pain and urinary problems. Dr Gill observed that the doctors initially thought that respiratory problems were causing his shoulder pain. His first sick note was granted about four months after the accident. The pursuer's disagreements with his employers in 2000-2001 appeared to have brought about the cessation of his active employment in November 2001. The pursuer had been able to travel abroad when he married in November 2002 and again when he and his wife went on holiday in 2004. He agreed with Dr Chiswick that there was likely to be opiate dependency. In relation to his examination of the pursuer, Dr Gill stated that some of the symptoms which he described were inherently implausible and there was evidence from the effort tests that he exaggerated his symptoms.

[57] On cross-examination Dr Gill accepted that the pursuer's presentation when he saw him was different from that which Dr Rogers recorded in his report of 25 September 2008 where the pursuer had expressed feelings of worthlessness and exhibited pain behaviour. Dr Gill recognised the possibility that, if the pursuer had taken oxynorm for his trip to London when he saw him, that drug could have affected his mood. He also accepted that Dr Stone had a special interest in the interface between neurology and psychiatry and was an expert in conversion disorder but he remained of the view that he was not qualified to express an opinion on a psychiatric issue. He accepted that Dr Stone had discussed the possibility of malingering as an explanation of the pursuer's presentation but criticised him for not using the criteria in DSM-IV.

[58] In conclusion Dr Gill opined that the pursuer had a range of non-specific symptoms and persistent urinary symptoms which had become conflated in his mind and associated with the accident. His long term disability was out of all proportion to the accident. The pursuer had been able to return to work for a prolonged period after the accident which made it difficult to link his condition to the accident. He would have expected a disabling injury to be apparent immediately. Medical experts had found no plausible mechanism by which the accident produced physical disease which could account for his complaints. There was a link between his dependency on opiates and his complaints of pain. There were concerns that the pursuer had exaggerated his symptoms and that he was influenced by the litigation. In his opinion there was no psychiatric injury caused by the accident.

[59] When they returned to complete their evidence in February 2009, and before they were cross-examined and the medical experts who were instructed on behalf of the defenders gave their oral evidence, Dr Stone and Dr Rogers commented on the reports which those experts had produced. Dr Stone did not agree with Dr Gill that the pursuer was genuinely cheerful and said that people with conversion disorder frequently put on a brave face. In this regard he referred the court to a review article in the British Journal of Psychiatry ((2006) 188, 204-209) on "la belle indifférence in conversion symptoms and hysteria" of which he was the lead author. He said that it was difficult to interpret effort testing of persons with conversion disorder as evidence of inconsistency in such testing did not reveal whether that was consciously motivated. Dr Stone did not think that the apparently bizarre symptoms which the pursuer manifested were in fact bizarre in the light of his experience of treating hundreds of patients with motor conversion disorder. Similarly, it was common for patients with chronic pain and conversion disorder to acknowledge that their symptoms changed from day to day.

[60] Dr Stone defended his ability to make psychiatric diagnoses in the context of conversion disorder and SPD by reference to his practice since 1999, both while preparing a PhD on functional weakness and thereafter in operating a functional symptoms clinic in collaboration with Dr Alan Carson, a consultant neuropsychiatrist. He had also lectured psychiatrists and neurologists on conversion disorder, had published extensively in that area and had recently acted as an adviser of the international committee, who were drawing up criteria for DSM-V, in relation to conversion disorder. He considered that he was equipped to diagnose those psychiatric disorders which commonly occurred with CRPS or conversion disorder, but not otherwise. He had analysed the pursuer's attendance at his general medical practitioner between 1991 and 1999 and observed that his average attendance of four times per year only marginally exceeded the average rate of attendance by men aged between sixteen and forty four in the United Kingdom. In that period he identified only three occasions in which the complaint might indicate a predisposition to somatic symptoms. Dr Stone considered the relationship between physical injury and conversion disorder to be complex; some patients developed symptoms immediately while others developed symptoms over time. He referred the court to an article of which he was the lead author in the Journal of Psychosomatic Research (2009), "The role of physical injury in motor and sensory conversion symptoms: A systemic and narrative review".

[61] Dr Stone did not rule out Dr Chiswick's view that the pursuer was to some degree dependent on morphine analgesics but he pointed out that the dosage of morphine sulphate, which was a long acting form of morphine, had not increased and there was no evidence that the pursuer had increased his demands for short acting forms of opiates. In addition, Dr Stone's diagnosis gave an alternative explanation for the pursuer's symptoms of chronic pain, which made opiate dependency less likely as an explanation.

[62] Dr Rogers considered that Dr Gill's interview with the pursuer's wife supported the view that the pursuer had suffered a significant change in his physical and mental state since the accident. He did not agree with the suggestion that the frequency with which the pursuer visited his general medical practitioner before the accident was unusual. He observed that there had been a very marked increase in the number of GP consultations and other medical investigations after October 1999. He emphasised that he considered Dr Stone was competent to give an opinion on the psychiatric aspects of an unusual neurological presentation as a result of his academic interest in this field and also his respected NHS practice for the assessment and diagnosis of such patients. Dr Stone's expertise in this field was unique. Dr Rogers confirmed that the pursuer's mental state had declined significantly between his interviews in 2006 and 2008. In 2006 he had similar findings to Dr Chiswick in his second report. In the latter interview however he concluded that he had a depressive illness and that his outward cheerfulness was a false affect which he described as putting on a brave face. The pursuer did not accept that he had a depressive illness. While Dr Rogers accepted that the pursuer's long term prescription of morphine sulphate could have created a degree of opiate dependency, he observed that the dose had been static since 2002. That suggested that he had not developed a tolerance of the drug.

Discussion

(i) The merits

(a) The pursuer's condition and causation
[63] I have already expressed the conclusion that the pursuer suffered a minor muscular injury to his neck on 28 September 1999. See paragraphs [2] to [6] above. While the pursuer's account of what he did when the accident occurred cannot be treated as reliable, the other witnesses who were involved in the incident gave accounts which supported the pursuer's assertion that he injured his neck and left shoulder when attempting to steady the circuit breaker and that he informed them that he had suffered the minor injury when he swore and touched his neck. I do not consider the inconsistencies in the evidence of the other witnesses about the incident to be material and I am prepared to hold, on their evidence, that at some stage during the incident the pursuer used his left arm to try to pull the circuit breaker upright, and that that gave rise to the minor physical injury.

[64] The significant issues on the merits therefore are (a) whether the pursuer's longer term complaints are to any extent genuine (is he malingering or exaggerating?) and (b) if the symptoms and signs are genuine to a significant degree, whether the accident on 28 September 1999 caused or contributed to his condition. I deal with each in turn.

[65] The pursuer's principal complaint is pain. One cannot measure pain. In diagnosing a condition manifested only or principally by pain a doctor has to rely on what patient tells him. Many of the symptoms of which the pursuer spoke were apparently bizarre. He also was outwardly cheerful in his manner at several interviews which he had with medical experts. At others he manifested considerable pain and guarded his left arm. While he spoke of only limited use of left arm, there was no muscle wasting in that arm nor was there any significant degeneration of his hands. There was a striking contrast between the appearance of the pursuer in court, when he showed signs of significant pain, guarded his left arm below his chest and walked with a distinct limp, and his appearance in the surveillance videos when he was not aware that he was being watched. In those videos his disability was much less marked as he carried out generally restricted but otherwise normal activities. I was not surprised that the responsible medical experts whom the defenders instructed to examine the pursuer were not satisfied that his complaints were genuine.

[66] Counsel for the defenders mounted a sustained attack on the pursuer's credibility and reliability. I have already commented on the unreliability of his account of the details of the accident. There were other aspects of the pursuer's evidence which were unsatisfactory. Those included what can only have been deliberate exaggeration of his disability in his applications to the Department of Work and Pensions for benefits, which the pursuer eventually conceded. Mr Hanretty pointed out inconsistencies between the evidence of the pursuer and his wife in relation to his hobbies, and in particular his playing darts in a public house and bowling, which cannot be reconciled. Both he and his wife expressed an interest in starting a family to Dr Chiswick yet denied any such intention in their evidence. The surveillance video evidence showed the pursuer acting relatively normally compared with his presentation in court. Mr Hanretty also emphasised that the pursuer had no explanation for the mileage on his Honda car. The pursuer had told Dr Chiswick that he had driven about thirty one thousand miles in his car in the four years between 2002 and 2006. That estimate of mileage, if accurate, could not be reconciled with his description of his restricted lifestyle since the accident and he and his wife had no explanation for that anomaly. As the medical witnesses who supported his case had reached their judgements relying in large measure on information provided by the pursuer, and as he was incredible and unreliable, Mr Hanretty submitted that his case failed.

[67] Nonetheless, I am persuaded on balance of probabilities that the bulk of the pursuer's complaints are genuine and are not consciously fabricated. I have reached this conclusion only after careful consideration in particular of the evidence of the pursuer's medical history, the views of those who have treated him since the accident and the opinions of the distinguished practitioners who gave evidence. I consider that the following factors support the conclusion.

[68] Counsel for the defenders submitted that neither the pursuer nor his wife were reliable witnesses and that their accounts were critical to the pursuer's case, because medical practitioners had to rely in large measure on a patient's narrative when dealing with complaints of pain which had no or very few physical manifestations. But while there is a basis for criticising the pursuer's reliability as a narrator of past events and a describer of present symptoms, I am not persuaded that there is any real basis for criticising his wife's evidence. Her account of a marked change in the pursuer's condition and lifestyle, from an active and fun-loving individual to a person increasingly afflicted by pain and largely housebound, and of the difficulties which that change had bought to their lives together was generally supported by the pursuer's father and mother, whose evidence was not challenged and also by the accounts which the pursuer gave to the doctors who treated him over the years after 1999. In this context I did not see that the inconsistencies in her accounts of the pursuer's hobbies and whether she planned to have a child to be material.

[69] While the pursuer was on occasion evasive in his answers on cross-examination and while he clearly exaggerated his disability in the application forms for benefits, I am not persuaded that he is to be treated as incredible or unreliable in relation to the existence of a long term condition in which he suffers serious pain and fatigue. I am also impressed by the pursuer's determination over a long period to find an explanation for his condition, both while he remained in active employment and thereafter. He studied medical material on the internet and was referred to a large number of specialists with differing areas of expertise in his quest for a cure. He spent his own money on physiotherapy and on a chiropractor; and he underwent a scalenectomy (thoracic outlet decompression) in August 2000 when it was suggested that he had thoracic outlet syndrome. I believe his repeated assertion that he would much prefer to be able to work as he had in the past.

[70] While I am not surprised by the conflicting views of the medical experts who examined him for the purpose of these proceedings, I am impressed by the fact that so many of the health professionals who have treated him since 1999 were persuaded that his complaints were in large measure genuine. I recognise that those practitioners had the primary duty of caring for the pursuer rather than testing his account for forensic purposes. I am nonetheless persuaded that, if the pursuer had been falsifying his account of his symptoms to a material degree, some of those health professionals would have expressed their concern. In particular I note while several of the doctors who treated him were puzzled by his symptoms, none suggested that he was fabricating them. I also observe that Dr Marshall, Professor Welch, Mrs MacLeod and his general medical practitioner, Dr Young, expressly accepted the pursuer as genuine in his account of his condition. The experts led on behalf of the pursuer, Dr Carmichael, Dr Stone and Dr Rogers, all considered the pursuer to be in large measure genuine in his complaints. Dr Rogers emphasised that in making a psychiatric assessment he had regard not just to what the patient said but the way in which the information was imparted. He was satisfied that the pursuer had not recited symptoms which he had learned from the internet or other sources but that he, the psychiatrist, asked the questions and the information "leaked out" in response to those questions.

[71] I do not accept the defender's contention that Dr Stone was naïve in accepting the pursuer's account or that he gave insufficient weight to video surveillance evidence. In his first report Dr Stone set out in a balanced way the pointers which supported the pursuer's account and those which called it into question. He acknowledged that the instances on the surveillance videos in which the pursuer used his left arm preferentially amounted to major discrepancies in the light of his account of significant pain in the left shoulder and arm. But Dr Stone, as I also am, was influenced by the fact that the pursuer was generally consistent in the account of his symptoms which he gave to the medical practitioners over time, including the fact that the symptoms varied from day to day and within a day.

[72] The pursuer also described symptoms which appeared to be highly unusual, such as feeling that his pillow was pressing in on his face, that his duvet was crushing his legs or that his left shoulder was being pushed through his chest. He felt that he was lying straight when in fact he lay with a bent posture. He described the symptoms as "wacky" and told Dr Gill that, if he were a doctor and someone gave him such an account of symptoms, he would laugh at him. Dr Stone expressed the view, which I accept, that the pursuer could not have obtained such information from his investigations on the internet. Both he and Dr Carmichael were also of the opinion that the pursuer's complaints about right leg pain were not likely to be deliberately fabricated as his claim related to a problem which he said originated in his neck and left shoulder. Dr Rogers supported that opinion and also stated that the pursuer could not have learned the symptoms from an external source. Dr Carmichael emphasised how difficult it was for a lay person to fabricate such symptoms. He considered them to be part of a developing condition. Dr Stone opined that the apparently bizarre symptoms, which the pursuer described, and also his tendency to be unable to effect certain limb movements when requested to do so on examination, while having no such restrictions on passive movement, were not unusual in patients with conversion disorder.

[73] Dr Stone expressly addressed the possibility of malingering in his first report after considering the surveillance videos. He opined that the videos supported the view that the pursuer exaggerated his disability on examination but that his own findings of limb function on examination were not incompatible with the degree of activity seen on the videos. He stated that patients with functional symptoms often perform worse on clinical examination, when they are thinking about their disabilities, than they do when paying less attention. He considered that the pursuer's symptoms had developed in a typical way for CRPS. His pre-accident overwork and insomnia, and the occurrence of a shocking event in the form of the accident were commonplace in such patients. In addition, the consistency of his account of his history to many doctors, his seeking of specialist help and his willingness to undergo surgical procedures pointed against malingering. Dr Stone attached particular weight to the pursuer's account of the bizarre motor and sensory symptoms about which he could not have learned from medical articles but which were typical of patients with functional motor and sensory symptoms. He concluded that the pursuer suffered a genuine chronic pain syndrome but that there had been a degree of exaggeration of his physical symptoms, especially when seeing doctors. He estimated that exaggeration at between twenty and thirty per cent. While those figures were no more than an impression, that was his impression. I observe also, as did Dr Rogers, that the pursuer did not exaggerate his low mood. He denied that he was depressed and repeatedly attempted to present himself with a smiling affect when examined by medical experts.

[74] I am generally prepared to accept Dr Stone's view. My one qualification in relation to Dr Stone's reasoning is that I do not accept that the accident was objectively a particularly shocking event. The pursuer appears to have described it in those terms to Dr Stone. But the evidence of the other persons involved suggested that while they averted a real risk of serious injury, they were not upset by it. The incident, viewed objectively, would not have traumatised a robust individual. The qualification however is not significant. It may be that the pursuer had, as Dr Stone opined, a slightly greater predisposition for somatoform problems than the general population. He also appeared to have a tendency to dramatise events. It seems that the pursuer came to see the incident as more shocking than objectively it was. In this context, the perception of the injured person, whether of the accident or the injury, is more important than the objective reality.

[75] In relation to Mr Hanretty's attack on the pursuer's credibility and reliability (see paragraph [66] above), I accept that some of his evidence was not satisfactory and that he was prone to exaggeration. I also accept that he did not have an explanation in his evidence for the mileage which he had driven in his car. But I do not think that that undermines his case as the defenders asserted. I attach no real weight to the differing accounts of the pursuer's hobbies and of whether or not the pursuer and his wife wanted a baby. I also do not see his inability to explain the mileage of his car as very significant as he had owned the car since 2002, his condition appears to have got worse over time and a considerable part of his evidence about his physical state related to his condition when, or shortly before, he gave evidence in late 2006. The balance between good days and bad days, which was favourable in the early years after the accident, became less favourable in later years. He would have had the opportunity in the early years to drive more extensively than later on. He had been driving up to one thousand miles per week in 2001 when suffering from symptoms while he remained in active employment. It would not be surprising if he used his car more extensively in the years immediately after he purchased it than he did by 2006. I also bear in mind that the accounts of his condition noted in the GP records, and which he described, were related to what he was experiencing when his symptoms caused him to seek further medical help. In the periods in which he did not seek such assistance his condition may not have been so severe. I am, as I have said, more influenced by the consistency of his account to doctors over the years since the accident and by the contemporaneous medical records than by his assertions in the witness box. I accept that he was keen to emphasise his symptoms and his disability but I consider also that some of his evidence was affected by fatigue and may also have been affected by the drugs he was taking. I also attach weight to the assessments made by those doctors who treated the pursuer and saw him repeatedly as his condition developed.

[76] I consider that for the purpose of this litigation it is less important to attach a medical label to the pursuer's condition which involves significant long term pain and fatigue than to decide whether that condition is genuine. I have decided that the pursuer's complaints of chronic pain and fatigue are in large measure genuine. But as considerable evidence was led on the issue of diagnosis, I set out my views below.

[77] I am prepared to accept the diagnosis of CRPS. I accept Dr Stone's expertise in this area. I recognise that there are controversies associated with the diagnosis and that different practitioners approach it differently. It is clear from the detailed medical records that several doctors observed neurovascular symptoms in the pursuer's left hand and arm. Dr Johnston, Dr Durward, Dr Marshall, Dr Muir and Dr Young all referred to such findings. See paragraphs [14], [17] and [18] above. Dr Young raised the possibility of CRPS in November 2001 (paragraph [17] above) and Dr Muir considered that the nearest diagnosis which he could make was CRPS (paragraph [19] above). The vascular medicine unit in Ninewells Hospital, Dundee has considerable experience of CRPS and both Professor Belch and Dr MacRae diagnosed CRPS (paragraph [20] above). Among the experts led on behalf of the pursuer Dr Carmichael diagnosed CRPS in his first report and considered it to be part of the picture in his second report and Dr Rogers considered the pursuer's symptoms to be consistent with CRPS (respectively paragraphs [36]-[37] and [45] above).

[78] I also accept Dr Stone's diagnosis of conversion disorder. He has considerable expertise in this area (see paragraph [62] above) and there was evidence of functional weakness and the other symptoms of which he spoke. See paragraphs [39] and [42] above.

[79] Dr Gill took issue with Dr Stone's diagnosis of depression on the basis that he as a neurologist was working outside his field of specialism. But Dr Stone explained that he had considerable experience of psychiatric work in his practice where he dealt with patients with unexplained neurological symptoms or unexplained pain. Dr Rogers described Dr Stone as having "considerable and unique experience in the assessment and diagnosis of patients who present at the interface between neurology and psychiatry". Dr Stone has considerable expertise in conversion disorder which is a combined neurological and psychiatric diagnosis. As I have said, he lectures psychiatrists on the assessment and management of conversion disorder and related somatoform disorders and recently he has been advising the international committee who are drawing up DSM-V, specifically in relation to conversion disorder. I do not consider his evidence to be discredited by straying beyond his field of specialism. In addition there was evidence of a lowering of mood from 2003 onwards and Dr Young's HADS assessment in 2008 supported the view that the pursuer was depressed (paragraph [28] above). More significantly, Dr Rogers also diagnosed depression in 2008 (paragraph [46] above). I am therefore satisfied that in 2008 the pursuer was suffering from moderate depression which has been brought on by his chronic pain syndrome and the significant deterioration of his lifestyle as a result. It appears, therefore, that the pursuer's condition also fits the criteria for SPD.

[80] Nor am I persuaded that Dr Stone was guilty of misapplying the guidance given in relation to depression in DSM-IV. While he did not record in his report an assessment of the axes of DSM-IV other than Axis I, he considered such issues as predisposing factors, exaggeration and malingering with some care in his first report.

[81] Another explanation raised by the defenders from Dr Chiswick's evidence was that the pursuer was fabricating his condition because of a dependency on opiates. On the evidence led before me I cannot rule it out as a contributor to the pursuer's presentation but there is no clear evidence of opiate seeking behaviour and the pursuer has used principally long acting opiates. While it may indeed be desirable to reduce his long term intake of opiates, I am not persuaded that the perpetuation of his symptoms of pain is explained by a conscious or subconscious desire to continue opiate medication.

[82] The second major issue on the merits is whether it has been established that the accident caused or materially contributed to the pursuer's long term pain and debility. I am satisfied on the balance of probabilities that the accident on 28 September 1999 materially contributed to the pursuer's condition in that the muscular injury and the resulting pain were the trigger to the chronic pain syndrome from which the pursuer has suffered.

[83] The pursuer's pre-accident medical history contrasts markedly with his history after October 1999. Dr Carmichael commented on this and observed that the decline in the pursuer's health was associated in time with the accident in October 1999. He suggested that it was probable that the accident caused the pain from which he suffered. I note that there were some signs of a vulnerability to somatic symptoms, such as the complaints of fatigue in 1994 and 1995 and the complaints of loin pain and epigastic pain which are recorded as having started in 1999 shortly before the accident. There may, as Mr Hanretty suggested, have been "something going on" before the accident, but there was no clear evidence that something had triggered a chronic pain condition before the accident occurred. Dr Carmichael suggested that there was nothing in the pursuer's pre-accident history which suggested that he had an underlying condition. I see no reason to disagree with Dr Stone's assessment that the pursuer had a slightly higher risk of developing a chronic pain problem than the general population. That did not mean that he would have inevitably have developed the condition but for the accident.

[84] The account of the accident which I have accepted in paragraph [5] above is consistent with a muscular injury to the neck and left shoulder. That injury would in many circumstances have resolved itself within a few weeks at most. In this case it has materially contributed to a long term problem.

[85] There was evidence in the GP records of the pursuer's complaints of symptoms in his neck and left shoulder which were attributed to muscular pain in October 1999. I refer to the GP notes for 12, 15 and 22 October and to the records of Stirling Royal Infirmary on 25 October 1999 (paragraphs [9] and [10] above). There is an unexplained gap in the medical notes until January 2000 but there were repeated references to neck and shoulder pain in that month. The period of two weeks from 28 January 2000 was the first occasion since the accident on which the pursuer took time off work. I refer to the entries in the GP records on 7, 26, 27 and 28 January 2000 and, in particular, to the record on 27 January that the pursuer complained of neck and back pain since October 1999, and that on 28 January where the general medical practitioner described the pursuer's "extraordinary response" to an innocuous complaint. See paragraphs [11] and [12] above. The latter comment in its context appears to me to be a reference to a minor injury, which probably was the injury which the pursuer sustained on 28 September 1999. The pursuer continued to complain of neck and shoulder pain on 28 February and 3 March 2000 before Dr Hay on 31 March 2000 recorded pain in his neck and lower back and an explicit link to the accident (paragraph [13] above). I observe in this context that the pursuer's complaints of significant pain occurred at a time when he remained in active employment and before he became disenchanted with his employers both for giving him work which he considered demeaning and for making him drive what he considered to be excessive distances. I therefore do not consider that his dispute with his employers was a significant cause of the emergence of his symptoms. It was at most an exacerbating factor.

[86] The pursuer was off work from 14 April 2000 to 27 November 2000 and his problems appeared to increase. From May 2001 onwards the pursuer complained also of pain in his right hip and leg. Mr Hanretty submitted that even if, contrary to his submission, the pain in the pursuer's shoulder and arm was proven to be caused by the accident, the leg pain was not. I am not persuaded that that is so. Rather, it appears likely that, as Dr Stone explained, a minor injury has triggered an escalating pain syndrome, initially in the neck, left shoulder and back, which in turn has triggered other symptoms. The pursuer's neck and shoulder pain caused what Dr Carmichael called chronic pain illness behaviour (where the sufferer protects himself from the onset of pain) and reduced his mobility. Increased immobility is associated with worsening pain and a lowering of mood. The pursuer has exhibited functional somatic symptoms including dysfunction of his nervous system. I consider it more likely than not that his leg symptoms are connected with his complex condition which was triggered by the accident.

[87] Mr Hanretty founded on evidence from the pursuer's parents in support of the view that the shoulder problems were not associated the accident on 28 September 1999. Mrs Christine Kerr gave evidence that she first learned of the accident on the day it occurred or on the following day when she took him to the Stirling Royal Infirmary because he was in pain. She said that the pursuer had complained that a computer box had crushed against his left shoulder. When asked whether the visit to the hospital occurred on 25 October 1999 or 3 March 2000 she could not remember because the event had happened so long ago. The pursuer's father, Michael Kerr, also gave evidence that he had first learned of the injury on the day of the accident or shortly afterwards when the pursuer had phoned his mother to ask her to take him to hospital because he was in such pain. He thought that the visit occurred in the evening as his wife had returned from work. Because of that evidence as to the time of the visit, Mr Hanretty in his closing submission invited me to conclude that the visit occurred on 3 March 2000 as the Stirling Royal Infirmary's records showed a visit at about 2200 hours on that date while the other recorded visits to that hospital occurred in the day time. He submitted that the pursuer must have suffered an injury at around that time and that he was wrong in attributing his condition to the earlier accident.

[88] I am not prepared to reach that conclusion for two reasons. First, I am not satisfied that I can rely on the recollection of Mr and Mrs Kerr senior that the accident occurred immediately or shortly before the hospital visit. Mrs Kerr in particular was diffident about the quality of her recollection. The pursuer's telephone call to his parents, which led to that visit, may have been the first occasion on which the pursuer's problem was brought home to them, or it may be that, with the passage of time, their recollection was incorrect. I incline towards the latter view. I am not satisfied, in the absence of any evidence of any other accident, that they are correct in their recollection of what the pursuer told them. Secondly, if the injury did occur at the beginning of March 2000, there is no explanation for the repeated recording of symptoms of neck and shoulder pain in October 1999 and between January and March 2000 nor for the attribution of the pain to the October incident in the entry in the GP notes on 31 March 2000.

[89] I therefore conclude that the accident on 28 September materially contributed to the continuing symptoms from which the pursuer suffers.

(b) Liability

[90] Mr Hanretty conceded that, if I concluded that the accident on 28 September 1999 had occurred as the eye witnesses stated, the defenders were in breach of Regulation 4 of the Manual Handling Operations Regulations 1992. I am satisfied that that concession was well made as the defenders made no sufficient assessment of the operation of moving the circuit breaker and did not take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. I am also persuaded that the defenders were negligent at common law in their failure to provide a safe and adequate system of work. The pursuer was involved in moving the bulky and heavy circuit breaker down the stairs in an awkward operation. The move was not planned but was accomplished as a result of ad hoc decisions. The men were given no training or instructions on how to achieve the move and no lifting aids with which to do it. The risk of injury was readily foreseeable. This lack of proper preparation for the task was not consistent with an employer's performance of its duty to take reasonable care for the safety of its employees.

(ii) Quantum

[91] Having decided in the pursuer's favour on both liability and causation, I turn to consider his claim in damages.

[92] Those medical experts who accepted that the pursuer had a chronic pain syndrome were guarded in their prognosis. Dr Carmichael advised that the pursuer's condition ruled out active work and that the effect of the drugs which he took on his memory and concentration meant that even inactive employment, such as in a call centre, would not be available. Dr Eric Grant, an employment consultant, expressed the view that if the pursuer were able to do light work only on some days and not others, because of the unpredictability of the severity of his symptoms, it would be very difficult for him to gain employment. It appears that the prospect of the pursuer returning to any form of paid employment depends on a material improvement in his condition.

[93] Mrs Elizabeth Macleod, the pain management specialist, commented that the continuance of the litigation had hampered the pursuer's rehabilitation. Dr Stone also opined that it was not uncommon for a patient to be unable to "move on" and address the future until a litigation was completed. Dr Stone also expressed the view that there was scope for the pursuer to undergo intensive pain management in a residential unit and that a good recovery was possible but difficult to achieve. Much depended on the flexibility of the patient's beliefs about his condition. As the pursuer had had symptoms for a long time and had suffered many failures of treatment to improve his condition, he had lost hope in the chances of a recovery. He considered that on the balance of probabilities the pursuer's symptoms would not improve sufficiently to allow him to return to full time employment or regular part time work. Because his symptoms were unpredictable the pursuer was unlikely to cope with a part time job which was not flexible as to the days and hours of work. No evidence was led which contradicted this view, which I accept.

[94] I conclude that the pursuer has the prospect of improving his symptoms if he undertakes intensive pain management but that he has only a small chance of resuming regular paid employment without significant improvement of his condition.

[95] Mr Hajducki for the pursuer submitted that I should award £50,000 as solatium. He referred me to the Judicial Studies Board Guidelines for the assessment of general damages in personal injury cases (September 2008) and submitted that the pursuer fell within the "severe" category for CRPS, in which the range was from £32,500 to £64,250. He also referred me to Grant v Chief Constable of Grampian Police (unreported) Lord Johnston, 1 May 2001, in which an award of solatium with a present value of £36,900 was made, and to two cases which involved less severe pain disorders, namely Burke v Royal Infirmary of Edinburgh NHS Trust Ltd 1999 SLT 539, in which Lord Eassie awarded solatium with a present value of £25,600 and Denholm v Gates Power Transmission Ltd [2005] CSOH 102 in which Lord Eassie awarded solatium with a present value of £11,100.

[96] I am satisfied that the pursuer in this case suffers from a very significant pain disorder. In reaching that view I have made allowance for a degree of exaggeration in his evidence of his condition and in his presentation in court and have relied more on the medical records and the assessments of those charged with his treatment than on his oral evidence. In my opinion a suitable award of solatium is £40,000, of which one half is attributable to the past.

[97] The pursuer has suffered a loss of income. While he has received certain pension benefits, they are not relevant to my calculations. Very helpfully the parties have agreed in a joint minute the earnings which the pursuer has lost if I were to hold that the accident was the cause of that loss. Between 28 January 2000 and 11 February 2000 the agreed figure is £704.57. Between 14 April and 27 November 2000 the agreed figure is £11,403.08. From 7 November 2001 to 23 February 2009 the agreed aggregate figure is £148,960.35. Those three sums in aggregate amount to £161,068. While the sums comprised in that aggregate differ from year to year, I have applied a broad brush approach to interest on past wage loss by allowing interest on the aggregate sum at four per cent per year in accordance with normal practice and have taken 5 April 2002, which was the start of the first financial year throughout which the pursuer was absent from work as the date from which interest should run. This gives rise to a figure of £44,454, which is similar to the sum which would have been awarded if interest were awarded at eight per cent on each of the sums recorded in the joint minute from the end of each of the periods listed therein.

[98] Parties have also agreed that if the pursuer had remained in employment as a team leader electrician with the defenders, his expected future earnings from 23 February 2009 (using the relevant Ogden tables) would be £536,416.85. I must also allow for the chance that the pursuer will be able to improve his condition once he has embarked on intensive pain management so that he can sustain some form of flexible part time employment in the future. Mr Hajducki submitted that it was reasonable to consider a sixteen hour week on the minimum wage which would give a result of £4,700 per year. I agree. I have taken a multiplier of ten to reflect the uncertain prospects of obtaining such employment, giving rise to a deduction of £47,000 and a result of £489,417.

[99] The pursuer also has in his pleadings a claim under sections 8 and 9 of the Administration of Justice Act 1982. In his closing submission Mr Hajducki invited me to make an award under section 8 of the 1982 Act of £20 per week for the services which the pursuer's wife provided while she remained in employment until 2002 and thereafter £50 per week for those services. Mr Hajducki did not pursue a claim under section 9 of the 1982 Act. The pursuer and his wife did not give precise evidence of the services which Mrs Kerr provided him as a consequence of his condition. But it was clear from his and her evidence that he has needed considerable assistance to lead his life as his condition has developed and that Mrs Kerr gave up her regular employment in 2002 to look after him. In Clark v Sutherland 1993 SC 320 the Second Division held that where the evidence in a proof had not included precise information about the services for which remuneration was claimed, the court would assess the amount, if any, which was the minimum which could reasonably be inferred as appropriate on the basis of the evidence. Mrs Kerr provided some assistance to the pursuer from October 1999 onwards, more assistance for a period after his operation in August 2000 and increased assistance as his condition developed. In her evidence in September 2008 she spoke of having to assist the pursuer in having a bath and when he dressed, shopping and making his meals. She suggested that she had been giving the increased assistance for at least three years. As the evidence in support of the claim is so thin but it is nonetheless clear that Mrs Kerr has provided extensive services to the pursuer, I have to take a broad view in applying the approach set out in Clark v Sutherland. I consider that it is appropriate to make an award under section 8 at the level of £20 per week for three years from October 1999 until September 2002 and thereafter at £50 per week. That results in an award of £19,760.

[100] The heads of damages can be summarised as follows:

Solatium £40,000.00

Interest on half thereof at 4% per year

from 28.9.99 to 23.2.09 (9.41 years) £7,528.00

Wage loss:

Past £161,068.00

Interest thereon at 4% per year

From 5.4.02 to 23.2.09 (6.9 years) £44,454.00

Future £489,417.00

Services (section 8 of 1982 Act) £19,760.00

£762,227.00

Conclusion

[101] I therefore sustain the first plea in law for the pursuer and grant decree for £762,227 inclusive of interest to 23 February 2009 as an award of damages in this case, and interest thereon from that date until payment. The amount to be specified by virtue of section 15 of the Social Security (Recovery of Benefits) Act 1997 in relation to the relevant period (from 28 September 1999 to 27 September 2004) is £22,692.14.

[102] It has unfortunately taken a long time to complete the hearing in this action. Parties initially estimated that the proof would take four days to complete and were accordingly allocated a four day hearing. At the end of the first week, having completed only the evidence of the pursuer, they requested a further twelve days. Shortly before the continued diet of proof in September 2008 the pursuer's legal advisers made available to the defenders' advisers updated reports from Dr Stone and Dr Rogers in which they recorded new diagnoses of the pursuer's condition. This caused the second diet to be curtailed to allow the defenders to obtain further expert evidence before cross-examining those witnesses and resulted in a third diet in February 2009. As a result, the litigation has hung over the pursuer for much longer than is desirable and the tasks of the legal representatives and the court were more difficult than they otherwise would have been. I hope that efforts will be made to avoid a recurrence of these events.