|
OUTER HOUSE,
COURT OF SESSION
[2013] CSOH 92
|
|
PD1926/11
|
OPINION OF
LORD GLENNIE
in the cause
DAVID McEWAN
HYNDS
Pursuer;
against
DAVID REEKIE
& SONS LIMITED
Defenders:
________________
|
Pursuer: Bain
QC, Fitzpatrick; Digby Brown LLP
Defenders: AGM
Jones, Solicitor Advocate; bto
11 June 2013
Introduction
[1] The pursuer
is a qualified engineer. In 2008 he was employed as an on-site machinist by
the defenders, David Reekie & Sons Limited, a company based at South
Street, Inchinnan, Renfrewshire. The defenders carry on a heavy engineering
business, the principal activities of which are the provision of machine
workshops, the supply of machine components, and the design, development,
manufacture, maintenance and repair of machinery and equipment at premises
belonging to others. This latter activity means that the defenders will send
machinists employed by them to customers' premises to carry out installation,
maintenance and repair work on machines manufactured and supplied by them.
[2] On 12
September 2008, the pursuer was working in the course of his employment with
the defenders at the premises of Wyman Gordon Limited in Lincoln, carrying out
a repair to a drop forge. While he was working at the base of the drop forge,
the metal cutting tool, which weighed about a tonne, fell from a height of
about 4 metres, and landed on the pursuer, trapping him in a small space
between an eight inch girder support and the ground. The
pursuer was bent forward, his chest was compressed and he was unable to breath.
As he tried to get free, the girder support fell away, leaving the weight of
the cutting tool pressing him directly against the ground. His back was "jack
knifed". He was compressed in a squatting position with his chest against his
thighs. After about five minutes of struggling, he managed to slide out
from underneath the cutting tool. There is no doubt that he sustained a
serious and life threatening injury. Mr Richardson, who was working with him
at the time, said that, when he first saw him crushed between the machinery and
the ground, he thought that he was dead.
[3] The extent
and severity of the pursuer's injuries were not immediately recognised. He was
taken to the accident and emergency department of Lincoln County Hospital.
X-rays carried out there showed no fractures; he was thought to have suffered
soft tissue injury. He was encouraged to return to work; "the worst
thing [he] could do was do nothing". A similar assessment of his condition was
made when he attended the Royal Alexandria Hospital in Paisley on his return to
Scotland a few days later. He was advised to take painkillers. He was told
that he could carry out light work. He was discharged into the care of his general
practitioner. On the strength of this advice, he returned to work almost
immediately.
[4] Initially,
because of his injury, he was assigned to fairly light work within the machine
shop. Within a month, however, he was carrying out heavy work on new machines
at Grangemouth and Motherwell Bridge. He was able to perform the work assigned
to him despite suffering back pain and discomfort and despite being restricted
in his mobility and in his ability to lift or manhandle heavy objects. He did
so in the belief that the medical advice which he had received, that it was a
soft tissue injury, was correct. He had only just returned to engineering, and
had been taken on for a trial period, so he was anxious to show that he could
do the work.
[5] At about
the beginning of November 2008, some two months after the accident, he was
sent to Norway. While working on a job there, he visited a chiropractor
because of persisting symptoms and was referred for a CT scan. The CT scan was
carried out on 14 November 2008. It revealed that he had suffered a fracture.
The pursuer understood that most fractures healed within about six weeks. He
assumed that the fracture had healed and continued to work, albeit while
continuing to suffer pain. When he returned to the UK, he saw a doctor on 30 December
2008. He was referred for an orthopaedic review. This began a series of
investigations which, in time, revealed the full extent of the injuries he had
suffered.
[6] It is now
recognised that the pursuer sustained an unusual low velocity high torque
crushing injury to his upper body and trunk. This has resulted in structural
alterations to the function and shape of his thoraco-lumbar spine which
increases the incidence and severity of mechanical low back pain. In addition,
on the pursuer's case (recognised in part by the defenders), he has been
diagnosed as suffering from Post-Traumatic Stress Disorder ("PTSD") and depression,
to the extent that he has sustained a diminution in his functionality,
described by Dr Wylie, a consultant psychiatrist who gave evidence for the
pursuer, as "bordering on a catastrophic loss of functionality".
[7] After the
extent of his injuries began to be recognised, the pursuer was advised not to
work. He took sick leave at the end of March 2009. Some time later, in
March 2010, while he was absent from work on sick leave, he was one of a
number of employees made redundant by the defenders. He has been out of work
ever since.
[8] Liability was
admitted by the defenders some time before the proof. This court is concerned
only with quantum. That issue falls to be considered under the following
heads: (i) solatium; (ii) past and future services; (iii) costs of on-going
treatment; (iv) past and future wage loss; and (v) pension loss.
[9] Before
turning to consider those questions, it is necessary to say something more
about the pursuer: his domestic circumstances; his
qualifications and previous employment; the circumstances of his redundancy; the
medium and long term physical, neurological and psychiatric consequences to him
of the accident; and, in general terms, his employability (though no separate
claim for loss of employability is now advanced) and the availability of
suitable employment.
Domestic
circumstances, qualifications and previous employment history
[10] The
pursuer was born on 19 April 1961. At the time of the
accident, he was 47. He is now 52. He is divorced. He has three
children, including a stepson who is aged 30 and lives away from home. His
other two children, Stewart (aged 21) and April (aged 20), still live
with him. They are currently both attending University, studying engineering. Both
of them gave evidence.
[11] The pursuer
left school in 1977 at the age of 16 with seven O levels. He explained in
evidence that he was dyslexic and did not get his English O level. He
commenced an apprenticeship as a mechanical engineer at the Paisley and
Johnston Training Centre and then with the firm of Whitman Lang before
transferring to Rolls Royce in Hillington. He gained City & Guilds parts
1, 2 and 3 Mechanical Engineering Technician qualifications. He remained at
Rolls-Royce for about three years after completion of his apprenticeship.
During this time he studied for and passed exams at night school in Engineering
& Drawing and in Building Drawing. In 1983/4 he took a one-year academic
course in computer programming for IBM mainframe computers. He then went back
to engineering as an engineering foreman for Harry Wilson's Engineering for the
next two years.
[12] In 1986/7,
having completed an access course at Stow College comprising various SCOTVEC
modules, he started an honours degree in physics at Glasgow University. After
his second year, in order to earn money to complete his course, he
took a year out and undertook site engineering work on oil rigs at a number of
locations including Aberdeen and Grangemouth. After he returned to university,
his marriage broke down. A few months before his finals, he was left with
three children to look after. As a result he did not sit his finals that
year. He was offered the chance of undertaking a repeat year in 1995/6 but, in
the event, largely because of the need to earn money for child care, he was
unable to complete that either. Nonetheless, he was awarded a general science
BSc degree. During this time he was also involved in voluntary work connected
with his church and drop-in centres and similar activities with marginalised
and excluded groups.
[13] In 1999 he
set up an IT company, Datech. In that capacity he was engaged as a
consultant on IT networks and installation for about six months, and was then
engaged for a further period of just under a year as a systems analyst. In 2002
he joined Network Datacoms, a company providing IT support for Strathclyde
University and other large computer users. He continued to gain
qualifications. He gained the Microsoft Certified Network Management Server
2003 Administration and NT Administration qualifications. At the same time,
over the three year period beginning in 2000/01, he completed a BA degree in
theology. He also worked as pastor of a church in Kilbarchan while continuing
his work with asylum seekers and other marginalised groups through the Queens
Park Baptist Church in Glasgow.
[14] Once he had
obtained his theology degree in 2003, the pursuer stopped working for Network
Datacoms. He tried to obtain work from his own business but, although he made
some money that way, it was not enough to enable him to look after his children
without obtaining state benefits. The children were his main focus during this
period.
[15] In 2008 the
pursuer decided to go back to work in engineering. It was some years since he
had last worked in engineering but he considered that his qualifications and
experience would be sufficient to enable him to take up that work without great
difficulty. He found a job with the defenders, David Reekie & Sons,
undertaking on-site engineering work (sometimes referred to as "contract hire"
work). He explained while some work was carried out in the defender's machine
shop, the defenders often had to carry out work on heavy machinery and
equipment on-site (ie where it was being used by the customer), wherever it was
located, because of the difficulties in moving the machinery off site. Such
work involved being away from home for lengthy periods. The work itself was
often awkward. For those reasons, it was better paid than machine shop work.
It was sometimes necessary to design a machine to carry out a particular job.
At the time of the accident, he was involved in re-grinding the face of a drop
forge that could not be moved - the plate had become distorted and needed to be
re-faced.
After the accident
[16] On
his return to work with the defenders soon after the accident, the pursuer was
at first assigned work within the factory rather than returning immediately to
on-site work. Very soon he was put on to heavy manual work. He found it
difficult. Although he was having some treatment from a chiropractor, he was
suffering from back pain and his mobility was limited. He was dragging his
left leg. But he was anxious to continue working. He had just got back into
engineering and was on a trial period of three months. He did not want to lose
the opportunity of making a new career in engineering.
[15] The
pursuer's evidence that he was able to do the job and determined to make a
success of it long term was challenged in cross-examination. It was said that
some of the other employees, including the foreman, Mr Black, found him
difficult to deal with. He accepted that he had some difficulties, arising out
of the fact that, for example, he did not want to go to the pub at the end of
the day's work. To the suggestion that he had problems with being given menial
jobs, such as clearing out the van, he responded that he did in fact clean it
out but hurt his back in the course of doing so and had to go and see the
chiropractor. This was after the accident. It was suggested that he
frequently lost his temper but he denied this. In his evidence he gave an
explanation about each particular incident put to him. Perhaps inevitably, his
explanations were slightly defensive and self-exculpatory; but I do not
consider that any of the incidents adversely affected his ability to carry out
his work with the defenders; nor did they tend to suggest that he would not
have made good progress had he not been injured and had he not been made
redundant.
[16] The pursuer
was sent out to a job in Norway at about the end of October 2008. While
there, he had a CT scan on 14 November 2008. It was that CT scan which
identified the fracture in his vertebrae. He continued to work nonetheless.
He had never heard of a compressive fracture and his understanding was that
most fractures healed within about six weeks - when he was told of the fracture
he assumed that it had healed and thought that was no problem in continuing to
work, albeit that he was sometimes in some pain.
[17] The pursuer
returned to the UK in December 2008. As already mentioned (in para.[5] above),
he saw a doctor at the end of December and was referred for an orthopaedic
review. The consultant, Mr Smith, arranged for an MRI scan. This was
carried out in June 2009. Meanwhile, on about 30 March 2009, the pursuer
stopped working because of the back pain he was suffering. He did not want to
sign off work and was anxious to get back. On 3 July 2009 the results of
the MRI scan were discussed with Mr Smith. The diagnosis was that the
pursuer had a compression deformity of the spine. To correct it would require
major reconstructive surgery. This was recommended only if the pain became so
great that it would ruin his life. However, it was recognised that, without
surgery, the alignment and damage to the pursuer's back made him more
susceptible to further damage and that the muscles going over the damaged area
would continue to cause pain. Leg pain and weakness was likely to be caused by
the need to compensate in posture, and in time this would lead to secondary
changes in the as yet undamaged discs. It was to be expected that his
condition would worsen as he got older. It was recommended that he undertake
physiotherapy treatment for a period of about six weeks, after which they would
be in a better position to assess whether he should return to work.
[18] The pursuer
continued to suffer back pain. In November 2009 he was referred to Mr Reece's
Spinal Clinic at the Western Infirmary, Glasgow. Mr Reece's opinion was
that surgery did not have any part to play in the pursuer's future treatment
given that the fractures would by then have healed and that the pain associated
with those fractures had improved and was continuing to improve. The lower
lumbar back pain was soft tissue damage and Mr Reece took the view that he
would "simply have to wait that out". They would not know the final result for
another 6 or 12 months. In the meantime, the pursuer should continue
with his physiotherapy and "plug along". The pursuer confirmed in evidence
that the pain at the fracture site itself was improving but that he had lower
back pain. It was not suggested that the pursuer should have returned to work
at this time.
[19] Quite apart
from the physical effects of the injury, the pursuer began to experience
psychological effects. From about that time he started to report anxiety, and
saw his GP about this on a number of occasions. His GP notes of 24 November
2009 record a "new" problem of "low mood" - the company had admitted liability
but it would take months to sort out and in the meantime the pursuer could not
work, his sleep was disturbed and he had lost interest in things. There are a
number of references to anxiety and depression thereafter. Amongst other
things noted in a patient health questionnaire dated 30 November 2009 was
the fact that he felt that he had let his family down; he explained that
he felt
that he had let them down by not being able to provide financially for them.
[20] The pursuer
noted changes in his behaviour. He began to feel frightened easily and often.
He began to express himself in a more forthright manner than previously, and
would "fly off the handle" without any real provocation. He felt he was acting
out of character but could not do anything about it - "I couldn't understand
what was going on with me". He was drinking a lot, which he had not done
before. He became socially withdrawn and did not look after himself very
well. Further, although this did not happen until about mid-2010, he started
having flashbacks to the accident. In early 2010 he was referred, with limited
success, to counselling with the Doing Well team in Paisley. In June 2010 he
was referred for psychological treatment to Mr Daniel Markus, a consultant
clinical psychologist in private practice. He found this helpful, and saw Mr Markus
on a number of occasions. He underwent a programme of cognitive behavioural
therapy ("CBT") which, for a time, was funded by the defenders. Mr Markus
gave evidence. It is sufficient for present purposes to note that he diagnosed
the pursuer as having mild PTSD when he first assessed him. Mr Markus
observed that his condition improved slightly during the course of treatment
but, in a review assessment in January 2011, he noted the pursuer's
anxiety when confronted with reminders of the accident. The pursuer said that
this was a new concern at this time. Mr Markus considered that this
pointed to a more severe form of PTSD.
[21] At about
this time the pursuer enrolled for a Masters degree in Sustainable Energy in
the Environment. He knew that he could not go back into engineering because of
his condition, but viewed a qualification in sustainable energy as a stepping
stone to some less active employment. However, he was unable to complete the
course. There was an issue about funding; but, in addition, as the pursuer
explained, he could not cope with the course nor keep up the work because he
was constantly consumed by anxiety arising from everyday incidents (coming
across machinery or vehicles in the street would provoke flashbacks and anxiety
about the accident). During this time the pursuer was also experiencing
financial difficulties. Not only was he out of work, but he was finding it
difficult to apply for benefits to which he was entitled. Mr Markus
helped him with this. The Community Mental Health Team became involved on his
behalf and dealt with the backlog of bills which had built up. His application
for benefits was refused initially, but it was granted on appeal in
January 2012. Since then the pursuer has been receiving benefits in the
form of Disability Living Allowance. But all this contributed to his
psychological difficulties. He would sometimes have difficulty walking. He
would sometimes feel physically sick. He would lack motivation, for example as
regards personal hygiene. He had difficulty getting out of doors, for fear of
encountering the unexpected. And he was subject to panic attacks - he had to
learn how to breathe in a particular way to cope with them.
[22] The pursuer
gave evidence of an incident at the beginning of 2012 which illustrated
his anxiety and its effect on his general life. The incident was spoken to
also by Stewart and April, who were living in the house, and I have no reason
to doubt the accuracy of his and their evidence on this. The house in which
the pursuer lived needed re-roofing. Scaffolding was erected to enable the
work to be carried out. Debris from the building works was funnelled from roof
level down to a skip in the pursuer's garden. The funnel went past the
pursuer's bedroom window. The noise and the scaffolding caused him constantly
to be reminded of the accident, so much so that he would not leave the house
because it would mean having to go under the scaffolding and the funnel. He
suffered panic attacks and was sick physically. On 1 February 2012, as
part of the same episode, he started coughing up blood - the re-roofing
work been going on for some three days and he was suffering panic attacks. He
telephoned NHS 24. A note in the NHS Greater Glasgow & Clyde OOH Services
records for that day recorded that call. After referring to the pursuer
reporting vomiting blood and being hot, sweaty and shaky, the report noted that
he would not go to A&E because he was suffering from PTSD as a result of
the injury two years before - he felt unable to go under the scaffolding
erected outside his house.
[23] When he
stopped working, he found that he had problems looking after himself at home.
Stewart and April had to help him. They began to do more and more. He would
get home and lie down and they would cook for him, help around the house and do
various routine jobs such as cutting the grass. Both Stewart and April
confirmed this. They described the change in their father after his accident.
Immediately after the accident they noticed that he was walking awkwardly and
appeared to be physically sore. When he came back from Norway they noticed the
change in his behaviour much more. April commented that he was not a person to
complain or ask for help, but she and Stuart would just notice things and start
to help automatically. For example, he was in pain hoovering the house, so
they helped him out. They ended up doing the daily chores, bending down to get
things out of the oven, hoovering, gardening, cutting grass, emptying the
dishwasher, cleaning windows, going down to the shops and so on. Each of them
gave evidence that, when they were around, they would tend to spend about two
hours a day helping him around the house. They still do. They also talked
about his behaviour more generally. He has become more vacant, sometimes as
though he is not there. They talk less, and conversations are likely to change
suddenly, as he is prone to lose his temper for no reason. He is not as strong
as he was and he cannot do the physical things that he would previously have
done. His personality changes make him a more difficult person to live with.
Although he is still as stubborn as he always was, they catch him crying
sometimes when he thinks they are not about. April said that he seems scared, and
gets nervous in a crowd or even with one other person. The difference in his
personality since the accident is dramatic. There was an improvement when the
pursuer was seeing Mr Markus, but when this stopped he started to
relapse. Stuart commented that he did not keep herself to the same levels as
he used to in terms of hygiene, ie washing, brushing his teeth et cetera. He
has to be prompted - it is as though he does not care any longer. He finds
difficulty filling in forms, and both Stewart and April help him when they are
about.
[24] It is
convenient at this point to record my impression of the pursuer as a witness.
He was, to my mind, an impressive witness. As his record shows, he is
intelligent and enterprising. He was clearly, and understandably, under strain
while giving evidence and there were times when emotion was obvious both on his
face and in his voice. I did not gain the impression that he was in any way
exaggerating the impact which the accident had had on him, both physically and
psychologically. If anything, he tended to downplay the very serious effects
of what had happened and the way it was affecting his life. I found him both
credible and reliable.
Redundancy
[25] The
pursuer was one of two employees who were made redundant by the defenders
in
March 2010. It is not suggested that his redundancy was motivated by the fact
that he was unable to work because of his injury. Nonetheless, there is an
issue between the parties as to whether the pursuer would have been one of the
people selected for redundancy had he not been incapacitated. It is therefore
necessary to look in some detail at the circumstances of his being made
redundant. In addition to the pursuer, evidence on this point was given by Mr Jared
Reekie, a director of the defenders for the last 25 years. He gave
evidence in a straightforward manner and I had no reason to doubt his honesty.
[26] Mr Reekie
explained that the year 2007-8 had been a good year for the defenders.
They had two large contracts, one of which provided work around the clock for
six months. On-site machining, needed in cases where the machinery on which
they were working was too large to bring from the site to the machine shop,
accounted for some 70% of their turnover. By 2010, they were not
doing so well. A good profit for the year ended October 2008 had turned
into "an horrific loss" for the following year. This was mainly due to the
lack of work both on-site and in the machine shop, as well as a downturn in
machine sales, without any corresponding reduction in costs. Sales and
turnover were well below required levels. The view was formed that drastic
steps had to be taken. On 11 February 2010 a notice was sent to all
employees explaining the position, asking for cost saving suggestions, but
warning of the risk of redundancies. A decision was taken by management that
there required to be six redundancies. The machine shop would take the brunt
of those redundancies; there would be four from the machine shop and two from
those employed in the "contract hire" section (ie those involved in on-site
machining). The pursuer was employed in the contract hire section. Mr Reekie
said that he contacted Scottish Engineering, the industry association, and
representatives of UNITE , the relevant trade union, before coming to final
decisions. The union representative in the employ of the defenders was Mr Thomas
McLardie.
[27] It was
suggested to Mr Reekie in cross-examination, under reference to the
company's accounts, that redundancies had not been necessary, or at least not
to the extent in fact carried out. I was not sure whether this suggestion was
intended to carry with it the implication that the redundancies were contrived
with a view to reducing the likely award of damages to the pursuer. If that
was the intended implication, I reject it. Having seen the company's accounts,
and having heard Mr Reekie's explanation of them, I am satisfied that the
company was in financial difficulties at that time and that redundancies were
genuinely considered necessary as a means of resolving those difficulties.
[28] On 19 March
2010 Mr Reekie wrote to the pursuer saying that he was potentially in the
"at risk category" (ie at risk of being made redundant). He arranging a
meeting for 24 March. Similar letters were written to a number of other
employees. At that meeting of 24 March 2010, as confirmed by a letter
sent to him later that day, the pursuer was told that:
"Provisional selections for redundancy
have been carried out based on an assessments carried out by Craig McIlroy
& John Blackburn. An explanation of the scoring system, together with
your own score sheet, is attached. Regrettably, you are 'at risk' of
redundancy as a result of this procedure."
A further meeting was
arranged for the following day, 25 March 2010, at which the pursuer was to
be given an opportunity of raising questions relating to his score sheet and
his provisional selection for redundancy and any other matters relevant to his
situation. That meeting took place. However, there was no change of mind and
by letter of that day Mr Reekie confirmed that the pursuer's employment
would be terminated on grounds of redundancy with effect from that day, with
him being paid one week's wages in lieu of notice. He was notified of his
rights of appeal and of his right to be accompanied at any appeal by a work
colleague or trade union official. The letter ended by expressing regret for
the necessity of the decision, thanking the pursuer for his valued service and
offering him the company's best wishes for the future. There was an appeal
hearing on 29 March 2010 at which the pursuer's scoring on the score sheet
was reviewed. His score in certain categories was increased, but the amended
total score was still too low to prevent him being chosen for redundancy. The
appeal was rejected and the decision to make him redundant stood. There was
further correspondence in April but I need not go into this.
[29] On leaving
the company, the pursuer received £370 as payment in lieu of notice and
holiday pay (for 16 days) of £1,184.
[30] Mr Reekie
explained the scoring system used to select the two people in the contract hire
section of the company who were to be made redundant. A similar system applied
to select the four people to be made redundant in the machine shop. The score
sheet was lodged in process, anonymised (apart from the pursuer) so as to
protect the privacy of the other employees. There were ten employees in the
contract hire section "scored" on this score sheet, with the pursuer's score being
on the penultimate line. I shall refer to the other nine employees by the
letters A, B, C, D, E, F, G, H and J. The score sheet contained information
about the employee's age and length of service, and then went on to score each
of them under the following four categories (with accompanying explanation):
"1. Productivity/Performance
5 Excellent performer, fast
and accurate
4 Good performer, above
average
3 Acceptable performance
2 Below average performance
1 Poor performer,
consistently
Number of NCRs will also be considered
in this category
-0.5 points for each NCR in the last
year
[NCR stood, I think, for
non-conformity report, i.e. mistakes made in the course of the work]
2. Skills Set (Flexibility
and range of machines worked)
5 Can work a large range of
machines (12 - 13)
4 Can work a good range of
machines (9 - 11)
3 Can work if you machines (6
- 8)
2 Can work two or more
machines (3 - 5)
1 Can work only one/two
machines (1 - 2)
[A list of the relevant machinery was
set out]
3. Experience
5 20+ years with Reekie
4 12 - 19 years with Reekie
3 6 - 11 years with Reekie
2 2 - 5 years with Reekie
1 under 2 years with Reekie
4. Attendance/Disciplinary
Record for the last year
5 Great attendance record, no
absence
4 Above-average attendance
record, one absence only
3 Average attendance record,
two absences
2 Below average attendance
record, three absences
1 Poor attendance record, for
more absences
Disciplinary record will also be
considered in this category, although not disciplinary action through absence
-0.5 for each verbal warning in the
last year
-1 for each written warning in the
last year"
The exercise of
scoring the individual employees was carried out by the foremen, Messrs McIlroy
and Blackburn, sometimes on the basis of information from others. I heard
evidence from Mr McIlroy. The pursuer was awarded 5 points in category
1, 4 points in category 2, 2 points in category 3 and 10 points in category 4,
amounting to 21 points in all. That placed him last (ie with fewest
points), 5 points behind J (who scored 26 points) and 6 points behind E (27
points). After that, the employees whose scores were nearest were C and F
(both on 30 points).
[31] The pursuer
had, and could have had, no complaints about his score in categories 3 and 4.
Category 3 simply depended upon the number of years served with the defenders,
while in category 4 the pursuer was awarded the maximum score. However, he
argued that his scores in categories 1 and 2 took no account of his injury. In
other words, he was not given credit for the fact that had he not been injured
he would have continued to work and gain experience, his skill set would have
increased (he would have worked on a greater number of different machines) and
his productivity/performance would almost certainly have improved. In the
appeal process these points were accepted to some extent by Mr Reekie. As
regards category 1, his score was increased from 5 to 6, the explanation
being essentially twofold: first, that since he was being assessed as a contract
hire operator, ie working on-site rather than in the machine shop, he should
not have been given a minus half-point for one NCR raised while working in the
machine shop; and, second, that they should have taken into consideration the
fact that his performance would probably have improved had he been in full-time
employment. As regards category 2, his score was increased from 4 to 7. The
explanation was that the previous scoring had been based only on his work as a
contract hire operator, not giving him credit for work undertaken within the
machine shop. Having reviewed the evidence of machines which he had worked,
the defenders raised his score to 6. They then took account of the fact that
due to his disability he had not gained sufficient productive experience on the
use of Reekie portable machine tools, so they took a "retrospective look" at
the possibility of him having gained experience on additional machine tools had
he been in full-time employment. As a result, they increased his score by an additional
one point, to bring it up to 7. As a result of this reassessment on appeal,
the pursuer's overall score was increased from 21 to 25, still one point behind
J and two points behind E.
[32] The
pursuer's case, put to Mr Reekie in cross-examination, was that this
system of scoring worked to the disadvantage of the pursuer who had been off
work since March 2009. Those involved in the scoring in March 2010 had not
seen the pursuer or his work for more than a year. Because of his injury, he
could not build up or display a track record. Further, there was a criticism
that the scoring was done by foremen rather than by those involved in
management. There is nothing in this last point; the foremen are more likely
to be able to assess the workforce, and the scoring was largely objective
rather than based upon a subjective assessment by the scorer. As to the other
criticisms, it was suggested that had the pursuer been able to work during the
intervening period, it was possible that he might have been able to gain
experience on additional machines, and thus increase his category 2 score
to 8 or 9 rather than merely to 7. Similarly, his category 1 score
might have increased to 8, rather than merely to 6. An extra two points
would have made him equal with E (on 27 points), while an extra three points
would have taken him above E and out of the bottom two. Mr Reekie
candidly accepted that these were possibilities. So, I think, did Mr McIlroy.
However, I did not consider that this line of argument really advanced the
pursuer's case. Mr Reekie was an impressive witness. He was not trying
to paint the pursuer in an unfavourable light. The appeal process had
increased the pursuer's score from 21 points to 25 points. Another one point
would not have helped him, since he would still have been below E. Another two
points would have made him equal with E, and would not necessarily have helped
him. I am not persuaded that he should have been awarded more than he was
awarded after appeal, and in particular I am not persuaded that he should have
been awarded enough additional points to have made a difference to the outcome.
[33] In
assessing the process pursuant to which the pursuer was made redundant, I have
come to the conclusion that the pursuer was neither unfairly treated nor
disadvantaged by the fact that he had not been working for the past year.
Allowance was made for the fact that due to his disability he had been unable
to work on a greater number of machines and build up a record of good
workmanship, and, having heard Mr Reekie's explanation of the process, I
have no reason to doubt that the whole exercise, including the appeal process,
was carried out properly and in good faith. It is noteworthy that he was given
the maximum of 10 points for attendance and disciplinary record (category 4)
during the time that he was off work due to his injury. Further, he was given
the benefit of having been employed more than two years with Reekie, a factor
under the heading "Experience", even though, because of his injury, he
obviously had not in fact built up two years' experience. While
it was possible, as Mr Reekie very fairly accepted, that he could have
been awarded more than two extra points, nothing in the evidence led before me
or in the matters put to Mr Reekie in cross-examination persuades me that,
having regard to the adjustments made as a result of the appeal process, the
scoring exercise was carried out in a manner which was unfair to the pursuer. The
other person from the machine shop who was made redundant at the same time was
J, who had joined the defenders before the pursuer. J and E might have had
cause for complaint had the pursuer been marked more generously upon more
favourable assumptions of what he might have achieved had he been able to work.
Physical,
neurological and psychiatric consequences of the accident
(i) Physical
condition
[34] The
pursuer's case is that, as a result of the accident, he sustained a severe
injury to his spine and that, as a result, he has a significant disability manifested
as symptomatic mechanical low back pain, restricted mobility and reduced
exercise or static load tolerance. He has a kyphosis at the thoraco-lumbar
junction. Although his back symptoms have consolidated to some extent, he
continues, and will continue, to suffer chronic back pain. This limits both
his employability and his social and domestic functioning; and he is at high
risk, even to the level of inevitability, of suffering secondary arthritis in
his back as a consequence of his injuries.
[35] The
pursuer's position was supported by expert medical evidence from Mr Allan
and Mr MacLean.
[36] Mr David
Allan is, and has been since 1990, a consultant orthopaedic surgeon. Since
1998 he has been the director of the Queen Elizabeth National Spinal Injuries
Unit for Scotland, responsible for over 170 new spinal injuries a year and
a population of perhaps 4000 spinal cord injured patients in the
community. He has an impressive CV. In addition to a large number of
administrative and teaching posts, his work includes orthopaedic clinical
practice and he has specific experience in surgical intervention in traumatic
spinal fractures. He has performed over 400 spinal fixations.
[37] He examined
the pursuer in October 2012. In his report (6/20 of process) he described the
injuries suffered by the pursuer. He had a compression fracture of three
vertebrae, namely the thoracic vertebrae T11 and T12 and the lumbar vertebrae
L1, with a post traumatic kyphosis. Symptomatically, he suffered from
mechanical low back pain causing physical impairment and he had significant
psychological sequelae. Those matters taken together had prevented him from
returning to his work as an engineer. He continued to experience significant
physical impairment, albeit without any neurological deficit. As a consequence
of the accident, he has a structural abnormality in the form of a post fracture
increase in his normal thoracic lumbar kyphosis (ie an increase in the amount
of curvature of the spine). Mr Allan explained that the intervertebral
discs acted as shock absorbers. Damage to the front of the vertebrae caused
the vertebrae to collapse down and increases the kyphosis at the point of
injury. There was a compensating change above and below. A crushing injury
such as this involved an element of torque, or rotational injury, which could
lead to micro fractures and was associated with a poorer prognosis.
[38] Mr Allan
said that that type of injury was rare. Less than 2% of spinal injuries
assessed by the National Spinal Injuries Unit were crush injuries of that
type. Following an acute injury such as that, micro fractures respond to
physiological loading by the formation of a kyphosis. The injury, and this
deformity, is associated with an increased severity and frequency of mechanical
low back pain, with or without neurological sequelae.
[39] Acute or
late surgical intervention in such cases was rare. Surgical intervention was
very uncommon and the result of such intervention was generally uncertain.
Increased incidence of mechanical low back pain was usually related to
increased load activity in the motion segment adjacent to the injured
vertebrae, both proximally and distally, and those symptoms were not modified
by surgical correction or fusion of the injured segment. The natural history
was for progressive fusion of the damaged areas to occur. That minimised the
symptoms from the affected area, but could result in transfer of discomfort
into the mobile segments above and below the injured segment. There was evidence
of fusion occurring at the injured segment, as a result of which little or no
further kyphosis was to be anticipated. In view of all that, surgical
correction or stabilisation of the pursuer's fractured segment was unnecessary
and would not modify his current symptoms or level of physical impairment.
[40] As a result
of the accident, the pursuer had a significant disability related to his
fracture patters, manifest as a symptomatic mechanical low back pain,
restricted mobility and reduced exercise or static load tolerance (ie standing
or sitting still). It was not surprising that although
the pursuer could walk and work up to November 2008, the disability became
worse by March 2009.
[41] Mr Allan
concluded that the pursuer's physical impairment attributable to the accident
placed him at a disadvantage in the labour market. It was unlikely that he
would be able to work full-time, even in a sedentary or semi-sedentary
occupation. It was unlikely that he would be able to return to a 35/40 hour
week. He would have to look for part-time work and would need to take mini
breaks during the course of the working day. It was probable that his
impairment would prevent the pursuer from working to a full retirement age
(say, 65). There was likely to be an increase in his symptoms, whether
those be recurrent aches or episodes of more acute discomfort. It was likely
that the pursuer could work for another 5 or 10 years.
[42] Mr Angus
MacLean is an orthopaedic and trauma surgeon and the lead clinician for trauma
services at Glasgow Royal Infirmary. He has been a consultant since 2005.
He knew Mr Allan well, having been his trainee in the Spinal Injuries
Unit. He was willing to defer to Mr Allan's opinion because, as he put
it, "he does more of this than anyone".
[43] Mr MacLean
met the pursuer in July 2011 and produced a report (6/10 of process). The
pursuer reported that his back remained stiff and that he had ongoing pain in
his lower and mid back which was constant, though variable in nature. He was
doing exercises to help control his back pain. He was also having
physiotherapy. He had been advised by Mr Reece that heavy work was
hampering his recovery. On advice, he stopped work in 2009 and has not worked
since then. He currently felt unfit for work and noted significant
psychological problems including anxiety, depression and possibly PTSD. His
back pain limited his ability to work, whether in employment or domestically (eg
in heavier domestic duties such as housework, shopping and cutting the grass);
but he felt that he could physically undertake light manual work.
[44] Mr MacLean
described his examination, which lasted for about two hours. The pursuer had
apparently lost some height (from 6'1" at the time of the accident
to 5' 111/2" at the time of the examination) but had put on about two
stone in weight. He walked with an asymmetrical gait and with a mild limp. He
shuffled uncomfortably in his chair throughout the discussion.
[45] Mr MacLean's
opinion and prognosis was to the following effect. He considered that the
pursuer had been "remarkably stoical" and in continuing to work despite the
severe injury - most people with spinal injury would not return to work. Once
the full extent of his injury had been identified following the CT scan, the pursuer
had received treatment by means of analgesia, physiotherapy and subsequent
investigation which had confirmed the severity of his injuries. While surgery
was discussed as a possibility, the spinal specialist decided that at several
months post injury it was unlikely that correction of the "kyphotic deformity"
would lead to any improvement of his back pain symptoms. Mr MacLean
agreed with this. Although the pursuer complained of lack of coordination and
weakness in his leg, particularly on the left side, that had never been
formally documented as being due to true neurological deficit and there was no
evidence of such deficit in existence. Any transient neurological damage
appeared to have recovered fully. Nerve irritation and bruising consequent upon
the injury had also resolved. While the pursuer still had symptoms, there were
no findings of current neurological damage.
[46] Mr MacLean
described the pursuer's back pain over the course of the previous three years
as "severe". It had improved to a plateau about one year ago, but at the time
of his inspection the back was stiffer than he believed it to have been then.
This probably represented secondary stiffening due to chronic soft tissue
damage and possible secondary degenerative change in the smaller joints of the
back. The on-going back pain which the pursuer was still suffering was
constant, but varied in nature from relatively mild to moderately severe. That
back pain was likely to persist for the foreseeable future.
[47] Mr MacLean
went on to express concern about the pursuer's psychological functioning which,
he thought, had been dramatically affected by the consequences of the
accident. His medical records documented the history of anxiety and depression
following the accident, and there was mention of PTSD. Without doubt, Mr MacLean
said, the pursuer's psychological problems severely impacted upon his
perception of his ongoing disability and back pain.
[48] The pursuer
had sustained a significantly deforming injury with fractures to his lumbar
spine. That predisposed him to secondary arthritis in his back; he would
probably develop significant secondary arthritis in his spine over the next 10 -
20 years, leaving him with a stiff back and an increased level of back
pain, but this was unlikely to progress so dramatically as to cause additional
disability beyond his current limitations. He was also at risk of secondary
degenerative spinal stenosis (narrowing of the spinal canal causing nerve
compression) as a result of the accident, though the risk of that was quite low
(probably no greater than 10 - 20%).
[49] So far as
concerned the effects of the injury on his employment prospects, Mr MacLean
concluded that the pursuer was physically fit to undertake
"non-manual/sedentary work". He had little doubt that the pursuer would not
return to heavy manual work as a result of the back injury and both the
physical and psychological components of that, though as regards the latter he
would defer to a psychologist or psychiatrist. As regards the social and
domestic effects of the injury, he noted that the pursuer was independently
self-caring, albeit often in some pain. He was capable of most normal
day-to-day domestic activities, though at a slower pace (and with on-going back
pain and psychological upset) but he struggled with heavier
domestic chores including DIY and gardening. He would require assistance with
heavier domestic activities.
[50] Mr MacLean
saw the pursuer again in October 2012. He was told that the pursuer had
undergone further physiotherapy on an "as needed" basis when his back was
particularly painful, but that that had been curtailed due to recurrent anxiety
or PTSD (referring in particular to the scaffolding incident mentioned above).
He noted that the pursuer had also seen Mr Reece, the orthopaedic surgeon,
again due to concerns regarding his kyphosis and his ongoing back pain. The
kyphosis had increased to approximately 45°. However, Mr Reece
suggested that there were signs of the kyphotic deformity fusing or
stabilising, and it was agreed that they would consider surgery only as a last
resort in the event of an unexpected dramatic deterioration. At the end of his
report, giving his opinion and prognosis, Mr MacLean expressed the view
that the pursuer's back pain had remained static and that his recovery had
reached a plateau. He did not think that there was a great risk of progressive
kyphotic deformity, and it remained the case that surgery was unlikely to be of
benefit. The pursuer would continue to suffer regular back pain, with the risk
of developing secondary degenerative change both in the injured part and in the
levels above and below. He considered that the pursuer remained fit to do
manual work, albeit he would have to be able to sit down and even then only on a
part-time basis. That really pointed to home-based part-time working. He
would struggle to undertake a fixed working commitment. It was unlikely that
he would work again in any meaningful way in paid employment. His social and
domestic prognosis remained much the same.
[51] Much of
diagnosis by Mr Allan and Mr MacLean of the pursuer's physical
condition was accepted by the defenders. However, their case was that the
pursuer's condition would resolve itself within another two years or so; and
that thereafter he would only suffer intermittent exacerbations of back pain,
perhaps once a year and lasting from between four and six weeks on each
occasion. Such a prognosis would permit the pursuer to return to moderate/
heavy work.
[52] The
defenders' case was advanced on the basis of evidence given by Mr Christopher
Adams. Since January 2001 he has worked full-time in elective and emergency
spinal conditions surgery at Edinburgh and Nottingham. He became a consultant
spine surgeon in 2004 at the Centre for Spinal Studies and Surgery in the
Queen's Medical Centre University Hospital NHS Trust in Nottingham. In October 2006
he transferred that consultancy to the Scottish National Spine Deformity
Service in Lothian NHS trust in Edinburgh, and was appointed as the clinical
lead in intra-operative spinal cord monitoring in January 2010. He
explained that his current clinical practice was for the full range of spine
conditions, including management of those conditions across adult and
paediatric groups. In his oral evidence he expanded upon this. His work with
spinal deformity concerns deformity which is inherited or developed as well as
deformity acquired through trauma. Some 5% or so of his work is trauma
related. He said that he had come across patients with similar complaints to
those experienced by the pursuer.
[53] Having
examined the pursuer, Mr Adams prepared a report (7/31 of process).
In the section headed "Findings on Clinical Examination" he commented that he
observed the pursuer sitting in an office chair with arms for about twenty
minutes without discomfort. He observed that his gait was normal and that he
was able to heel and toe walk unaided. His spinal alignment was abnormal in
the sagittal plane with a kyphosis centred at the thoraco-lumbar junction. On
forward flexion this did not change, and no angular gibbus formed. There was
no scoliosis (or rotation). Forward flexion of the lumbar spine was normal
and, although there was pain on flexion, there was none on extension.
[54] In a section
headed "Opinion and Conclusions", Mr Adams set out his spinal diagnoses,
which were not significantly different from those mentioned earlier. There
were vertebral fractures with associated intervertebral disc injuries,
resulting in a spinal deformity (thoracolumbar kyphosis), but no persisting
neurology. He observed associated soft tissue injury of the thoraco-lumbar
spine. Dealing with the "Mechanism of Injury", while accepting that the
pursuer had suffered a severe load applied to his spine, causing the injuries
which could have been of such severity that the spine became unstable, and
leading to a spinal cord injury resulting in paralysis, in fact in the
pursuer's case the multiple vertebral fractures were of a lesser extent; the
spine remained stable, and the temporary spinal cord symptoms not only did not
progress but in fact resolved within a few months.
[55] Mr Adams
said that the literature pointed to a variable outcome following such severe
spinal fractures. The best study in the literature was Wood et al,
2003, although the spinal fractures considered there were of greater magnitude
than those suffered by the pursuer. 74% (17 out of 24) of the group
that was treated non-operatively in that study was able to return to work
within six months of injury. 15 of the 17 returned to a similar
job. Mr Adams said that both his experience and the literature showed the
final outcome usually to be one of improvement, stabilising within about two
years from the injury. In the pursuer's case, the reverse of the usual
clinical path had occurred; he was able to do much more for the six months
following the accident and then his condition deteriorated. I understood him
to mean that this interrupted or delayed (rather than prevented) the injury
stabilising in this way. It was more likely than not that the pursuer would
suffer intermittent exacerbations of back pain lasting between four and six
weeks at a time for the rest his life. But this was unlikely to happen more
than once a year. To reduce the risk of this, the pursuer should consider
regular exercise in the gym and swimming.
[56] As regards
"Work, Disability and Activities of Daily Living", Mr Adams said that the
pursuer was disadvantaged in the open labour market from the date of the
accident until the current time, but the amount of disadvantage was more
difficult to assess. He considered that the pursuer could probably perform a
moderately heavy job, and certainly a job that was office-based. He had many
patients with more severe deformities who were able to be in full-time
employment. The pursuer could use his physics, engineering and theology
background. Certain modifications, such as a standing desk arrangement or a
suitable chair would allow him to work in an office environment. In his opinion,
the restriction on the pursuer's ability to work was much more psychological or
psychiatric than physical.
[57] Mr Allan
joined issue with Mr Adams on a number of fronts. While recognising Mr Adams'
qualifications as a spinal surgeon, he suggested that Mr Adams would not
deal routinely with spinal fractures. The two things were completely
different. Mr Allan was comfortable with the diagnosis that the pursuer's
symptoms had developed over time, and he had no difficulty with the
recommendation that the pursuer undertake gym and other fitness work in order
to attempt to reduce the risk of frequently suffering intense back pain. He
agreed that that periods during which the pain was exacerbated might last for
about 4-6 weeks at a time, but he did not accept Mr Allan's opinion
that the pursuer was likely to suffer such pain for such periods only once a
year. That was not his experience. He would expect it to occur much more
frequently. Nor was he comfortable with the opinion that the pursuer "could
perform a moderately heavy job". Mr Adams referred in his report to many
patients "with more severe deformities" who were able to be in full-time
employment; but Mr Allan considered that it was not appropriate to equate
fractures with deformities. He (Mr Allan) had focused entirely on
physical incapacity. In his opinion the pursuer was disabled as a result of
the accident. It was unlikely that he could return to full-time work, whatever
that work might be.
[58] Mr MacLean
did not agree with the prognosis advanced by Mr Adams, which appeared to
be based in part on Mr Adams' experience of dealing with patients and in
part on the study by Woods et al. Mr MacLean did not agree that
the study demonstrated any such thing. The study was concerned with "burst" fractures,
where the patients had single level injuries, whereas in this case the pursuer
had injuries on three levels. The average amount of kyphosis suffered by the
group studied in the paper was about 10°, compared with a kyphosis
of 40° (and progressing) suffered by the pursuer. That study could not be
relied upon for a prognosis for the pursuer. In addition, Mr MacLean had
"no idea" what was the basis for Mr Adams' assertion that the pursuer
would probably suffer exacerbations of back pain only once a year.
[59] As noted
above, Mr Adams placed some reliance on the paper by Woods et al
which examined "Operative Compared with Non-operative Treatment of a
Thoracolumbar Burst Fracture without Neurological Deficit". As that title
suggests, the purpose of the research was to ascertain whether, in the case of
patients with a thoracolumbar burst fracture but without any neurological deficit,
operative treatment (ie surgical intervention) led to superior long-term
clinical outcomes than non-operative treatment (application of a body cast or
orthosis). For this purpose, 47 randomly selected patients (reduced
from 53 for various unrelated reasons) were divided into two almost equal
groups, one of which was given operative treatment and the other non-operative
treatment. The initial hypothesis was that operative treatment would lead to a
superior long-term clinical outcome. The conclusion arrived at after the study
was that it did not. The study was not, therefore, directed to assessing the
level of long-term recovery in itself - it was simply a comparison of outcomes
between patients who had had operative treatment and those who had not had it.
That is reflected in the manner in which outcomes were reported. The study
identified that there were no significant differences between the two treatment
groups with respect to pain suffered, either at the time of presentation or at
the final follow-up examination. Nor was there any other substantial
difference in benefit between the two different types of treatment. So far as
concerns the ability of patients to return to work, though the study noted that
of the 23 patients who were treated non-operatively, 17 (74%) resumed work
within six months and a further two resumed work within two years. Of those 19
who return to work, 15 return to "a similar job", the others moving to a "less
strenuous job". No indication is given of the types of job or how strenuous
they are - Mr Adams did not know what jobs they returned to. The study
goes on to note that "the ability of patients with a non-operatively treated
burst fracture to return successfully to vigorous work has been reported
often." This is stated under reference to a study by Mumford et al (1993)
which reported that 81% (26/32) of patients who were treated with a brace
were able to return to work, and 60% (17) of them returned to jobs at the
same level of activity. However, I was not referred to this study, and the
bare summary of its findings given in Woods et al provides insufficient
basis for any understanding of the type of "vigorous work" or what was included
within the expression (jobs at the same level of activity", to which the
patients were able to return; nor does it provide any sufficient basis for any
conclusions as to the type of work which the pursuer in the present case might
be able to undertake. In addition, the point made by Mr MacLean, namely
that the degree of kyphosis in the patients studied in Woods et al is
markedly different from that suffered by the pursuer, seems to me to be a good
one. Although Mr Adams said that the difference in the degree of kyphosis
was immaterial, I was not persuaded that I could simply disregard it. In
addition, the patients considered in the study had single level injuries,
compared with the injuries on three levels suffered by the pursuer. In fact,
the patients were selected for study by Woods et al had to meet certain
"entrance" or "inclusion" criteria. I need not recite those criteria in detail
- they included, for example, only suffering from an isolated single level
injury - but Mr Adams accepted that the pursuer did not meet at least four
of the eight criteria listed and would not have been accepted for inclusion in
the study. That, too, causes me to doubt the assistance to be obtained from
this study. I am not persuaded, on the material performing, that I should
regard the Woods study as necessarily casting any light on the likely outcome
for the pursuer.
[60] One problem
in considering what weight to attach to Mr Adams' opinion that the pursuer
could probably perform "a moderately heavy job" is the looseness of terminology
employed. What constitutes a "moderately heavy job"? In the course of the
evidence I was shown an extract from a standard international classification of
physical demands of work. In that classification, medium work is described as
involving "exerting up to 50lbs force [about 25kg] on an occasional basis
[ie for up to one third of the working day], and/or up to 20lbs [about 10kg]
frequently [ie for between one third and two thirds of the working day], and/or
up to 20lbs [about 10kg] of force constantly to move objects." Heavy work
involves twice those amounts; it is described as "exerting up to 100lbs
[about 50kg] on an occasional basis [ie for up to
one third of the working day], and/or up to 50lbs [about 25kg] frequently
[ie for between one third and two thirds of the working day], and/or up
to 50lbs [about 25kg] of force constantly to move objects." Light
work involves lighter force, 20lbs (about 10kg) for up to one third
of the day or 10lbs (5kg) for up to two thirds of the day and/or walking,
standing and pushing and pulling levers (as in a production line). Assuming
that "moderately heavy" lies somewhere in between medium and heavy, I find it
difficult to conceive of someone with the injuries suffered by the pursuer
being able to undertake such work with any regularity. In asserting that the
pursuer could probably perform a "moderately heavy job", Mr Adams accepted
that there would be pain, but considered that it would be manageable pain. The
key, he thought, was in the "manageability" of the pain. It came down, in his
opinion, to a psychological question. Mr Allan sharply disagreed with the
suggestion that the pursuer would be able to perform a "moderately heavy job".
I agree with Mr Allan. My assessment, on the evidence I have heard, is
that the pursuer is capable of undertaking light, mainly sedentary, work on a
restricted, probably part-time, basis. He is not capable of undertaking
moderately heavy work.
(ii) Neurological
evidence
[61] Neurological
evidence was given on behalf of the pursuer by Mr Metcalfe, a consultant
neurologist. He examined the pursuer on 29 March 2012. He noted that the
pursuer had had psychological issues, characterised as PTSD, and back injuries.
Those were matters dealt with by others. So far as concerned neurological
complaints, he identified two problems. Immediately after the injury the
pursuer had had a loss of bowel continence which lasted for about three weeks.
That was not a continuing problem. However, following on from that, he had
been left with permanent impairment of his sexual function - he had lost the
ability to ejaculate, though he was able to get an erection. In addition, he
had some weakness of the legs, intermittently affecting his ability to walk and
resulting in a loss of feeling on the skin of the left lateral calf muscle.
The pursuer himself did not give evidence of this. Ms Bain explained this
on the basis that to have asked the pursuer about such matters would have been
humiliating for him. In addition to Mr Metcalfe's evidence, the pursuer
had also told Mr Markus about this sexual impairment, and Mr Markus
too gave evidence to that effect.
[62] This
evidence was unchallenged. Dr Metcalf's evidence on these matters was
accepted by the defenders in their final submissions. Although the pursuer
himself did not discuss the sexual impairment resulting from the accident, it
seems to me that I can properly take account of Dr Metcalfe's evidence on
this point, though I am left without any real guidance, which could only have
come from the pursuer himself, as to the importance of this sexual impairment
to him.
(iii) Psychiatric
issues
[63] Evidence
on these matters was given on behalf of the pursuer by Dr Alan Wylie, a consultant
psychiatrist in general psychiatry and substance misuse. He saw the pursuer on
6 October 2011 and on the strength of that produced a report (6/5 of
process). He saw the pursuer twice more, on 26 July and 5 October
2012, and produced two supplementary report (6/17 and 6/22). Those supplementary
reports were designed simply to update the position. In his first report (6/5)
he set out at some length what he had been told by the pursuer both about his
life before the accident, the accident itself, the injuries sustained and the
psychiatric sequelae, the latter, of course, also being based upon the
pursuer's own description of his condition and experiences after the accident.
I mention this simply to make the obvious point that a large part of any
psychiatric diagnosis depends upon the information supplied by the patient. He
then went on to describe, albeit briefly, the examination of the pursuer
carried out by him at the interview. His observations about the pursuer were:
that his speech was coherent, with normal tone and flow, while his intellectual
function appeared to be intact; that he had no suicidal or paranoid ideation,
thought disorder or delusions (though he did describe depressive cognitions
about the future looking bleak); that he experienced intrusive images and
thoughts about the accident; and that his (the pursuer's) own assessment was
that he had been affected by the accident both physically and psychiatrically
and needed help. After reciting material from the pursuer's medical records,
including the opinion given by Mr MacLean (for the purpose of this case)
on the physical consequences of the accident, he set out his own opinion to the
following effect. He considered that the symptomatology gradually increased in
severity and extent to the point where a formal diagnosis of PTSD was
warranted. For reasons which will become apparent, I do not need to set out in
detail the factors justifying that conclusion. He also gave a diagnosis of a depressive
disorder, giving rise to the development of low mood, feelings of fatigue, loss
of interest, sleep disturbance, diminished concentration and diminished libido,
this diagnosis of depressive disorder being, in his view, separate from that of
PTSD already mentioned. He considered that with appropriate treatment it would
be reasonable to expect an amelioration in that symptomatology to the point
where a formal diagnostic label would no longer be warranted; but that would
depend some degree upon the stresses in his life also being addressed,
including the pain which he still suffering and the financial difficulties and
other limitations placed upon his quality of life.
[64] I need not
dwell on Dr Wylie's first supplementary report, save to note that he
referred to the scaffolding incident described by the pursuer as illustrative
of the problems experienced by him. His opinion as expressed in that supplementary
report was unchanged. The pursuer's mental health difficulties related to the
accident and the consequences of it. His psychiatric disorders would preclude
him currently from returning to employment. They would continue also to have a
significant adverse effect on his normal day-to-day functioning.
[65] In his
second supplementary report Dr Wylie maintained the same diagnosis. The symptomatology
recounted by the pursuer remained consistent with a formal diagnosis of PTSD.
He continued to recount experiencing "recurrent and intrusive distressing
recollections, including images and recurrent distressing dreams of the event
together with nightmares outwith it." Further, he described experiencing
"intense psychological distress and physiological reactivity on exposure to
cues symbolising an aspect of the traumatic event, namely loud mechanical
noises or trucks in response to which he will experience anxiety escalating to
panic with his heart racing." There were a number of other matters set out by Dr Wylie.
He maintained the view, also, that the symptomatology remained consistent with
a diagnosis of depressive disorder, albeit that was at a slightly milder level
than previously. He recognised that it could be argued, contrary to his view,
that the depressive disorder was an intrinsic part of the PTSD, but that was
probably just a matter of diagnostic semantics. While he continued to recommend
both pharmacological and psychological treatment, and while he considered it
would be reasonable to expect a degree of improvement with such interventions,
he considered it "unlikely given the severity and duration of the disorders to
the present time, that he will recover to the point he would be able to return
to his previous employment as at the time of the index accident without
significant risk of relapse." I should note that in his oral evidence Dr Wylie
categorised the PTSD suffered by the pursuer on each of the occasions he saw
him as in the range "moderate to severe".
[66] Dr Zealley
gave evidence for the defenders. He has an impressive CV. He is a fellow of
the Royal College of Psychiatrists and, until his retirement in 2000, it
had been consultant psychiatrist at the Royal Edinburgh Hospital for nearly
20 years. For many years, from the second to the sixth edition, he was
joint editor of "Companion to Psychiatric Studies", a major postgraduate
psychiatry textbook, though he was not involved in the recently published
seventh edition. He has acted as an expert in very many cases, compiling
hundreds of expert reports, especially when there is an overlap between the
physical and psychiatric effects of injury.
[67] Dr Zealley
met the pursuer on 29 August 2012, a number of previous appointments
having been aborted, and produced a report (7/48 of process). He too
narrated the history of the matter as told to him by the pursuer and as taken
from his medical records. His conclusion was that, having met the pursuer, he
was "satisfied that he does not now suffer from any formal psychiatric disorder
- simply experiencing (it would appear, intermittently) certain of the
criteria of [PTSD], but by no means the entire syndrome of PTSD." He amplified
this in his formal Opinion at the end of his report when he said this:
"The time course of events subsequent
to the index accident is such as to satisfy me that, some few months after
the event, [the pursuer] developed the full syndrome of [PTSD]; and that not
long after the development of the disorder, his clinical condition was
subsequently added to by the development of a phase [or "phases"] of Major
Depressive Disorder ...
Such records as were made available to
me, and my discussions with [the pursuer] himself, make it difficult to
estimate the duration of the fully developed syndrome of PTSD. I
consider it probable that it may have lasted between six and nine months -
before lessening into a forme fruste of the disorder."
By forme fruste
Dr Zealley meant a mild, incomplete or attenuated form of the disorder.
His opinion, in short was that the pursuer no longer had any psychiatric
illness which would prevent him from working. Although he had suffered PTSD,
this had now resolved into a lesser condition.
[68] In his oral
evidence, Dr Zealley referred to a "crib sheet" taken from the DSM 4 Manual,
which identified six relevant criteria to look for in diagnosing PTSD. He was
at pains to emphasise that although such a checklist was useful, his own view
was that diagnosis of PTSD was a matter of overall impression rather than
simply ticking boxes. The crib sheet was for a psychiatrist starting out, to
show what to look for. I can understand and accept this reservation.
Nonetheless, it provides some assistance to the court and was the subject of
detailed consideration. Dr Zealley considered that four of the six
criteria were readily satisfied, namely: A (exposure to a traumatic event
in which certain experiences were present); B (the traumatic event being
persistently re-experienced in one or more of five ways); C (persistent
avoidance of stimuli associated with the trauma and numbing of general
responsiveness, as indicated by three or more of seven items); and E (the
duration of those symptoms being for longer than one month). However, he did
not consider that either D or F was satisfied, at least as at August 2012
when he assessed the pursuer. D was: "Persistent symptoms of increased
arousal (not present before the trauma), as indicated by two (or more) ...
of": (1) difficulty falling or staying asleep; (2) irritability or
outbursts of anger; (3) difficulty concentrating; (4) hypervigilance;
and (5) exaggerated startle response. As I understood his evidence, and I
have to say that it appeared to change from time to time, Dr Zealley
considered that each of these had at some time been satisfied but none were
satisfied at the time he saw him. So far as concerned F, Dr Zealley
thought that, at the time of his consultation with him, the pursuer was not
suffering any significant distress or impairment in his social, occupational
and other areas of functioning.
[69] I found
some difficulty during Dr Zealley's evidence in identifying the basis of
his disagreement with Dr Wylie. They both agreed that the pursuer had at
one time had PTSD, as well as a Depressive Disorder. There was less attention
paid to the analysis of Depressive Disorder, and it is convenient at this stage
simply to concentrate on the diagnosis of PTSD. Where they differed was in their
opinion as to whether that PTSD continued beyond about mid- to late 2011, the
time by which Dr Zealley considered that it had become attenuated. Dr Zealley
was insistent in his diagnosis. He would assert: "that is my clinical
judgement", and he frequently emphasised the weight which should be accorded to
his opinion on these matters. Towards the end of his evidence I tried to
ascertain whether his disagreement with Dr Wylie was in fact a difference
of principle in the way that he and Dr Wylie considered the material
before them; or whether it could be explained by the fact that they noted
having been told different things by the pursuer. In other words, was the
difference simply one of input? Dr Zealley at first appeared to reject
the suggestion, saying that, even based on the information which Dr Wylie
had set out in his report, he disagreed with Dr Wylie's diagnosis. Later
on, however, it seemed to me that he was in fact explaining the difference in
their respective diagnoses from the fact that he and Dr Wylie had taken
different information from the pursuer. Dr Wylie set out the information
which he had taken from the pursuer at great length in his reports. Dr Zealley
did not do this. Though he said that he had looked at his notes before giving evidence,
those notes were not made available.
[70] I formed
the view that Dr Wylie's evidence was to be preferred. I came to that
conclusion essentially for this reason, that the difference between them was
largely explained by the different information on which they were proceeding.
What Dr Wylie set out in his report as having been taken from the pursuer
chimed with what the pursuer himself told me in the course of his evidence. It
also fitted in with the evidence given by Mr Markus. Insofar as the
difference between Dr Zealley and Dr Wylie could be explained by the
fact that they had based their opinions on having been given different
information, or perhaps put a different interpretation on what they had been
told - and it seemed to me that that was the case - that meant that I should
prefer the diagnosis put forward by Dr Wylie.
[71] I should
add this. At the end of Dr Zealley's evidence I wondered whether it
actually mattered whether the pursuer was suffering from the full form of PTSD
or only a forme fruste. The real question, to my mind, is whether his
condition, whether full PTSD or some lesser and incomplete form of it, affected
his ability to seek and obtain employment. Dr Zealley accepted in his
evidence that this attenuated form of PTSD would still be debilitating and
would have a serious impact on the ability of the pursuer to obtain
employment. In those circumstances, I am not persuaded that the difference in
their diagnosis and in the precise label to be attached to the pursuer's condition
makes a lot of difference. However, in case it does make a real difference, I
am clear in my preference for the evidence of Dr Wylie.
Employability and
likely employment
[72] There
are two aspects to this issue. The first relates to what work the pursuer
would have continued to do had he not been injured and for how long; and what
would he have earned from that work. The second relates to his employment
prospects in light of his present physical and psychological difficulties and
the likely prognosis.
[73] As to the
first aspect, this depends to a significant extent on the evidence of the
pursuer as to what he was seeking to do. It was suggested on behalf of the
defenders that the pursuer had no ambition to work in the heavy engineering
sector. He was only doing it for the money. I accept that there may be some
truth in this. The pursuer had not pursued the engineering route persistently
throughout his life. He was concerned, quite understandably, not to work away
from home while his children were being brought up. Although he rejected the
suggestion that he would not want to be away from home if his children, in
turn, had children of their own, I am not persuaded that he was so wedded to
the heavy engineering sector that he would have preferred work in that sector
if other equally well paid work was available elsewhere. However, it seems to
me that this is really beside the point. The pursuer was quite candid in
admitting that, like many others, he worked because he needed the money rather than
because of his love of that particular work. While I can accept that he may
not have continued in heavy engineering had some other opportunity become
available, for example in the IT sector, I do not accept that he would have
taken other work which was less well remunerated. In those circumstances the
question of his ambition in the heavy engineering industry, and whether or not
he re-entered it as a "fall back", as the defenders put it, is neither here nor
there.
[74] At the time
of his accident, the pursuer was earning £15 per hour for a 39 hour
week as an on-site machinist, equivalent to annual earnings of £30,420
gross (or £22,914 net of tax and National Insurance). The hourly rate in
the machine shop was £10. Those rates were before any overtime. Overtime
was paid at time and a half (or double time if worked on the night shift), with
time and a half (or double time on night shift) on Saturdays, and double time
on Sundays. He would be expected to work seven 12-hour shifts if necessary.
His average weekly earnings in the 13 weeks prior to stopping work at the
end of March 2009, inclusive of overtime, were £647.96 gross,
equating to annual earnings of £33,694 gross (or £24,799 net). It
was noted from the defenders' records that another employee, Mr McLardie,
earned slightly less during that same period; but for the 11 months of
the 2011/2012 tax year his earnings stood at £47,123 gross,
equivalent to annual earnings of £51,407 gross (or £37,141 net). That
provides some indication of what the pursuer might have earned in the future
had it not been for the accident.
[75] The pursuer
suggested to Mr Douglas Govan, the defender's employment expert, when
interviewed by him, that Mr McLardie was not an appropriate comparator.
He explained this in evidence by saying that Mr McLardie spent more time
in the machine shop and therefore would have been on a lower hourly rate. This
is a point which I shall bear in mind when making a final assessment of
damages, but it should be noted that ultimately it was for the company rather
than the employee to decide what job the employee should be allocated at any
given time. It was not inevitable that the pursuer would be assigned to
on-site jobs all or even most of the time.
[76] The pursuer
gave evidence about how he thought his working life would have developed had
the accident not happened. He was well qualified and experienced in that area
of work. He had a physics and maths background and an ability to speak to
people. He regarded his work as an on-site machinist as the first rung on a
new career. His evidence was that he anticipated moving up within the defender
company into a management position within a few years. Alternatively he might
have moved to work for one of the other two companies engaged in the same
activity. In his evidence in chief, he said that he would have hoped to have
worked to retirement age (ie until he reached the age of 66), though he
might have wanted to work beyond that. He knew of someone at the defenders who
are still working aged 72. The suggestion was made on behalf the pursuer,
in final submissions, that he would have carried on working until age 70.
I have my doubts about this, particularly if he had remained actively working
in the heavy engineering sector. Whether he would have continued even to
age 66 must be in some doubt, given the nature of the work. Mr Ian
Richardson, the co-employee who had been with the pursuer at the time of the
accident, who had left the defenders' employment shortly after the accident and
moved to work for another company ("X Ltd") in the same field, gave
evidence of a number of people in this industry retiring at 60, but this
was linked to a pension scheme which had since been wound up; and in any event
he pointed out that they might retire at 60 but then come back as agency
workers carrying out the same work and being paid much the same (there was
evidence that in busy times companies such as the defenders would take on
agency workers).
[77] On the
question whether the pursuer would have been able to carry on in the industry
for a reasonable time had he not suffered his injury, Mr Richardson
explained that there was a small number of companies that did the same type of
work. After the downturn in 2008-2010, the workload now was "absolutely manic".
He described 2011 as "the best ever"; and 2012 was also very busy.
One could tell that it was busy by the amount of overtime being worked. X Ltd
was constantly employing more people. Mr Richardson said that if he were
to lose his job with X Ltd he would find another one by the next
afternoon. In 2011 Mr Richardson had earned about £45,000, but
that was much less than he would have earned if he was working abroad or
offshore, when he would expect to earn between £60,000 and £80,000
gross. If someone who had been employed by the defenders applied for a job at
X Ltd they would certainly get an interview and their application would be
favourably received. 1-2 years' experience was sufficient to make someone
attractive to employ. If the pursuer was to join X Ltd, he would probably
start at Grade 2, and within 10 years would have reached Grade 4.
Mr Richardson himself was at Grade 4. The particular Grade did not
in fact have much effect on the level of pay. Someone on Grade 2 could
earn the same as Mr Richardson had earned in the past year, and could have
earned more than that if he had worked offshore.
[78] Mr Reekie
confirmed in his evidence that, after three bad years, the defenders had now
returned to profit. Mr Reekie said that some of their competitors, being
more global, were better placed to absorb extra costs and go through the
downturn without having to lay off people. I infer that it is
possible that the defenders may take on further employees in the future once
they have ridden out the recession in the industry.
[79] In my
opinion I can legitimately conclude that had he not been injured, but still had
been made redundant, the pursuer would probably have been able to obtain a
similar job in the same sort of industry. Whether that would have been with
X Ltd or with some other company, or even perhaps (given time) with the
defenders, or whether he would have done the same work working for an agency,
cannot be said with any certainty. But he had the skill and experience, and I
have no doubt that he would have left the defenders with a good reference.
[80] Mr Peter
Davies and Mr Govan, both employment experts, gave evidence on this
aspect. To some extent, of course, their evidence involved an assumption on
their part as to whether or not the pursuer would have been made redundant, it
being the pursuer's case that had he remained in active employment he would not
have been chosen for redundancy. I have found that he would have been. But,
as I have said, this does not mean that he would have been unable to get a job
of a similar type and at a similar level with another company in the same sort
of business. I have found that he would have been able to obtain a similar
job, though I accept Mr Govan's evidence that it is likely that there would
have been a gap of 3-4 months before finding other employment.
[81] As to what
he might have been expected to earn if he had obtained similar employment, I
have already referred to the earnings of Mr McLardie and Mr Richardson.
Mr Davies included in his report details of Mr McLardie's earnings
from September 2008 until February 2012. He also included a table giving
a range of earnings for the period 2008/2009 through to 2012/2013 "as
an engineering technician, male, full-time, ASHE, 2008-2012". That table gave
figures for the "Lowest Decile", the "Lower Quartile", the "Mean" and the
"Upper Quartile". Mr McLardie's earnings for that same period were very
close to the highest decile. That may reflect a large amount of overtime and
work (on-site) away from home. There was no direct evidence as to what an
agency worker would be paid, but it is legitimate, in my opinion, and to
surmise that an agency worker would be paid less than a direct employee. The
pursuer would have been a new employee with any new company that employed him,
and would not necessarily have been given the better paid work (ie on-site
work, work abroad or offshore, or long overtime hours) during the first year or
two. It seems to me that I should regard him as being likely to earn, during
the first two years or so, at around the Mean rate rather than that for the
Upper Quartile. That approximates to the rate which he was in fact earning
during his few months with the defenders. I shall apply the figures from this
column of Mr Davies' Table when I come to consider the pursuer's loss of
earnings from the end of March until the date of this Opinion. Thereafter,
however, I have no reason to doubt that he would have earned at or about the
Upper Quartile rate.
[82] The second
aspect, which relates to the pursuer's current employment prospects in light of
his present physical and psychological difficulties and the likely prognosis,
was again the subject of expert evidence from Mr Davies and Mr Govan.
To some extent their evidence depended upon the findings by the court on the
medical and psychiatric evidence relating to the pursuer's current and likely
future disabilities. But they also differed in their analysis of the jobs
market.
[83] Mr Davies
considered that, with his problems of pain and discomfort in his back, the
pursuer was probably fit only for light sedentary work. Within that category,
IT work would probably be the most suitable. However, that would require
working with other people and travelling from place to place, and the psychological
difficulties from which the pursuer suffered might well make that impossible.
He produced a table showing the difficulties encountered in gaining employment
by those with depression or, more pertinently, some other mental condition such
as PTSD. His overall assessment was that the pursuer's prospects of obtaining
any work in the future were not at all good. That tended to be the position
with those who had been out of work for physical or mental reasons for a
significant period. Around the Glasgow and Greenock area, over the last year
or two the number of applicants for jobs as computer engineers had tended to
range from about 30 applicants per job to a figure of around 160 applicants
per job. The prospects were less daunting for jobs within IT User Support but,
given that his IT experience was not recent, Mr Davies thought that the
pursuer would struggle to secure that sort of employment. Unemployment rates
for those with a disability were markedly higher than rates for those who were
not disabled. He thought that the only realistic prospect for the pursuer
would be to undertake some work on either a voluntary or "Permitted
Work/Earnings" basis.
[84] Mr Govan
took as his starting point the opinion of Mr Adams, that, although unable
to return to heavy manual labour, the pursuer was fit for sedentary "and
perhaps moderate manual employment" (which he described as probably between
"light" and "medium" on the classification to which I have already referred); and
he also took as a given Dr Zealley's opinion that the pursuer was not now
suffering from PTSD or any significant psychological illness. On this basis he
took a "more positive" view of the pursuer's future employment outlook. It
would be open to him, he thought, to continue in some form of engineering,
albeit moving away from the heavy manual work to work at technician level, for
example as a skilled machinist. Such a job, he accepted, involved heavy manual
work. On the view which I have expressed in the section of this Opinion dealing
with the pursuer's physical condition after the accident, I do not accept that
he could now carry out such work. Nor is he psychologically able to cope with
that type of work. Mr Govan then suggested that there might be
opportunities in IT operations and support, computer engineering or perhaps web
design, allowing the pursuer to build on previous experience and enabling him
to distance himself from the heavier aspects of engineering. This would
involve refresher training or other training specific to the particular role
sought to be filled. He thought it more likely than not that the pursuer would
return to employment in engineering at technician level, involving IT support
skills but not heavy manual work. On that basis he would expect to earn in the
region of £22,838 gross (£18,062 net) rising to £29,693 gross
(£22,723 net). If he were able to sustain full-time employment in such
work, he had the potential to reach earnings of about £38,016 gross
(£28,383 net). If, however, the pursuer decided not to pursue employment
in the engineering field, then as a science and theology graduate there would,
he thought, be many other potential career opportunities that he might look
at. Mr Davies did not disagree with the above earnings figures on the
assumptions made by Mr Govan that the pursuer was physically and
psychologically able to carry out such work and did in fact get a job in such a
role.
[85] As I have
said, I regard the premise upon which Mr Govan gave his evidence as
unrealistic. That is not a criticism of him, simply a reflection of my
findings as to the pursuer's physical and psychological disabilities. I
consider that Mr Govan's evidence that he might nonetheless obtain
employment in the IT sector, or in offering IT support skills in the engineering
field, to be over-optimistic. Having regard in particular to his age and the
fact that he obtained his IT qualifications some time ago, and in particular
the PTSD and depression from which he continues to suffer, I regard the
prospects of him obtaining such employment as poor. On the basis of Mr Davies'
evidence I consider it unlikely that the pursuer will be able to obtain any
significant income in the future. He might be able to
work on a
voluntary or "Permitted Work/Earnings" basis, but that is all.
The particular heads
of claim
[86] Against
these background findings of fact on the different issues, I now turn to
consider the particular heads of claim. At the end of the proof, and because
of a shortage of time, parties handed in written submissions of the matters
with which I have already dealt and on detailed issues of quantum. I am
grateful to both parties for that work. It has proved very helpful. There
was, however, insufficient time to go through the submissions in any detail. I
indicated, therefore, that there might be a few points on which I might require
to be addressed. In the detailed findings on quantum that follow, both as
regards interest calculations and some other matters, I have decided some
matters in principle, leaving the parties to work out the precise figures which
follow from my decision. This may result in some matters requiring further
discussion.
(i) Solatium
[87] For
the pursuers, Ms Bain suggested a figure of £80,000 for solatium.
She summarised the relevant factors as follows. The pursuer is a 51-year-old
divorced man, a single parent, who has suffered crush fractures at three levels
in his vertebrae, and has probably suffered rib and sternum fractures.
Although the extent of his injuries was initially missed, they were picked up
by the CT and MRI scans. He has a permanent kyphosis or curvature of the
spine, is likely to develop significant secondary arthritis over the next 10 -
20 years, with consequential stiffness and increased back pain, and may
possibly require further surgery (though this appears unlikely at present). At
present he suffers constant back pain which varies in intensity but can be
moderately severe, and has intermittent problems with control of his legs,
particularly his left leg. His sexual function is impaired. He has severe
psychiatric symptomatology - intrusive thoughts and flashbacks, anxiety,
recurrent and intrusive re-experiencing of the incident in response to various
cues, increased arousal, sleep disturbance, poor concentration, hypervigilance
and panic attacks - which has impacted significantly on his daily life and has
affected his relationships with his children and others. He has been diagnosed
as having PTSD and a Depressive Disorder.
[88] Ms Bain
referred me to a number of cases mentioned in Kemp & Kemp, vol.3,
and to the Judicial Studies Board ("JSB") Guidelines for the assessment of
general damages in personal injury cases, 11th edition.
[89] On the
basis that I should accept the evidence of Mr Adams and Dr Zealley in
preference to that given by the pursuer's experts, and that I should disregard
the hearsay evidence about the pursuer's alleged sexual impairment, Mr Jones,
for the defenders, advanced a figure of £40,000. He accepted that this
was a serious back injury. He submitted that the amount awarded by way of
solatium would depend upon my findings as to whether or not the pursuer had
PTSD and/or depression, as to the level of disability and pain from which the
pursuer suffered and would continue to suffer, as to the prognosis relative to
the pursuer's physical and psychological states, and as to any ongoing sexual
dysfunction.
[90] As is
apparent from earlier sections of this Opinion, I have broadly accepted the
evidence of Mr Allan and Mr MacLean to that of Mr Adams and I
have also accepted the evidence of Dr Wylie in preference to that of Dr Zealley.
I accept the evidence of Mr Metcalfe that the pursuer complains of sexual
dysfunction, even though the pursuer himself did not give evidence of this.
However, since I had no evidence as to the significance which the pursuer
himself attached to this, I do not think it should feature too heavily in my
assessment of the appropriate figure for solatium. Subject to this one small
caveat, it seems to me that the picture presented by Ms Bain is broadly
accurate.
[91] The pursuer
clearly suffered a severe back injury. In dealing with orthopaedic injuries,
the JSB Guidelines divide severe back injuries into three categories. Category (iii)
covers cases of fractures of disks or vertebrae leading to chronic conditions
where, despite treatment, there remain disabilities such as "continuing severe
pain and discomfort, impaired agility, impaired sexual function, depression,
personality change, alcoholism, unemployability and the risk of arthritis." It
suggests a range of damages from £27,700 to £49,800. Category (ii),
being more serious, includes features taking the case outside the lower
bracket, including nerve root damage with associated loss of sensation,
impaired mobility, impaired bladder and bowel function, as well as sexual
difficulties and unsightly scarring. On the evidence which I heard I do not
consider that the pursuer comes within this bracket. I would assess him as
being at the top end of category (iii). The JSB Guidelines deal
separately with psychiatric and psychological damage. PTSD is divided into
four sections, ranging from "(a) Severe", through "(b) Moderately
Severe" and "(c) Moderate", to "(d) Less Severe". I am satisfied
that the pursuer does not fall into the "Moderate" section, which covers a
person who has largely recovered and where any continuing effects will not be
grossly disabling. His condition is worse than that. In the JSB
categorisation, "Severe" covers cases involving permanent effects which prevent
the injured person from working at all or at least from functioning at anything
approaching the pre-trauma level, and where all aspects of his life will be
badly affected, whereas "Moderately Severe" is for cases where there is a
better prognosis suggesting some recovery with professional help but where the
effects are still likely to cause significant disability for the foreseeable
future. Suggested awards for the "severe" category are from £42,500 to £71,850,
while for the "moderately severe" category the range is from £16,602 £42,500.
It seems to me, on the evidence that I have heard, and taking account also of
the Depressive Disorder from which he is suffering, that the pursuer falls
somewhere at about the bottom end of "severe" or the top end of "moderately
severe".
[92] Taking
these matters separately, this assessment would lead to an award in the region
of £45,000 for the physical injuries and in the region of £40,000 for
the psychiatric injury. But it would in my opinion be wrong simply to add them
together, if only because the guideline figure for the severe back pain takes
account of the fact that the injured person will suffer depression and
personality change. Doing the best I can, it seems to me that I should make an
award of solatium in the sum of £70,000. There was a small disagreement
according to the written submissions which I received as to how much of that
should be allocated to the past, the defender suggesting half and the pursuer
suggesting three quarters. I propose to allocate 5/7ths (or £50,000)
to the past. It is agreed that that amount should carry interest from the date
of the accident at 4% a year.
(ii) Past and
future services
[93] For
the pursuer, Ms Bain asked me to accept the evidence of Stewart and April
that they had helped their father with his domestic and other duties. I
readily accept that evidence. Each of them gave evidence that they spent about
two hours a day on average performing this role, and Ms Bain presented a
calculation for past services showing each of them having been so engaged for
two hours a day from 1 April 2009 until 31 March 2010 at £6 per
hour, and thereafter for two hours a day until the end of the proof at £7
per hour. Her calculation then adds interest on those sums.
[94] Ms Bain
submitted that future services should be assessed on the basis of £1,000
annually for each of the children, recognising that they would no longer be
available to maintain their current levels of support for their father.
[95] Mr Jones
accepted that for the first nine months, that being the limit of the period
during which, on Dr Zealley's evidence, the pursuer was suffering from
PTSD, it would be appropriate to allow a couple of hours a day at £5 an
hour, giving rise to an award for this period of £2,500. Thereafter, for
future services, he submitted that it would be appropriate to allow £5000
to reflect the difficulty that the pursuer appeared to have with cutting the
grass and vacuuming the house.
[96] While I
accept that Stewart and April have helped their father in the manner indicated,
it was my understanding of their evidence that they had spent about two hours a
day between them helping their father. Sometimes one would be around and
sometimes the other. On some occasions both would be there. I did not
understand their evidence to be that they had each spent two hours every day
helping their father, ie four hours between them each day. Two hours a day was
the overall time spent. On that basis, while I am prepared to accept their
evidence, the proper figure for past services would be one based upon two hours
per day from 1 April 2009 to date. The hourly rates suggested of £6
up until 31 March 2010 and £7 thereafter seem to me to be
reasonable. So too does the suggested interest calculation, namely interest
at 8% a year from 1 April 2010 on the sums attributable to the period
up to 31 March 2010 (£5,110) and interest at 4% a year from that same
date on the sums attributable to the period from then to date.
[97] So far as
future services are concerned, this has to be a matter of very broad
assessment. The pursuer is to a large extent able to look after himself. He
needs physical help with certain of the heavier tasks. He also needs emotional
reassurance and support. I suspect that the physical assistance will not
necessarily come from his children. They might move away, or be too busy. He
may need to engage some domestic or gardening help. I had no evidence of what
this would cost. It seems to me that the appropriate figure to award under this
head is £1,200 a year. It was suggested that the multiplier should be
taken from the Ogden Tables, 7th ed., Table 1. Ms Bain
suggested that the appropriate multiplier was 21.85. That may be right.
I would be grateful if parties could check and agree the appropriate figure.
(iii) Costs of past
and on-going treatment
[98] The
costs of past physiotherapy and chiropractic treatments were agreed by the
parties at £295, with agreed interest to 16 October 2012 of £75.05.
There will have to be a calculation of interest to date. Whether this is
better achieved by taking the principal figure (£295) and calculating a
new single figure for interest to date, or by taking the principal figure plus
the agreed interest and adding interest thereon is a matter which I shall leave
to the parties to resolve.
[99] A claim is
also put forward for the cost of ongoing treatment, on the basis that the court
accepts that some amelioration of the pursuer's condition might be provided by
10-12 sessions of EMDR (at £80-£100 each) and 10-12 sessions of
CBT (at the same rate). The suggestion is that the court should allow for
22 sessions at £90 each, giving a total of £1,980. Mr Jones
accepted that in principle some sum should be awarded for ongoing treatment,
but said that there might be a dispute as to the type, extent and amounts. His
proposal was for a lump sum of £1,000.
[100] Mr Jones
did not have the opportunity of addressing me on this matter. It seems to me
that the sum claimed by the pursuer under this head is not unreasonable and I
would be minded to allow it; but I shall allow the defenders an opportunity to
address me further should they wish to do so. If there are no further
submissions to be made, then the figure put forward by Ms Bain should be
included in the final calculation of damages.
(iv) Past and
future wage loss
(a) Wage
loss until redundancy
[101] Past
wage loss from the date of the injury to the date of redundancy is agreed at £20,000.
That will attract interest from 1 April 2010 to date at 8% a year.
(b) Wage loss
from redundancy until judgment
[102] The
pursuer has been out of work during the whole of this time. For the reasons
set out above I am satisfied that he could not have obtained work during this
period. I do not think that the contrary was suggested. In those
circumstances the wage loss from the date of redundancy until judgment is to be
measured simply by the earnings that he would probably have made had he not
been injured and had been able to continue to work.
[103] I have
concluded that the pursuer would still have been made redundant even if he had
not suffered his injury. The decision to make him redundant was transparent.
It was carried out fairly and gave him credit for skills and experience which
he might have acquired had he not been injured.
[104] I accept the
evidence given by Mr Govan that the pursuer might have taken 3 or 4
months to find alternative employment. However, I see no reason why this
should have taken any longer than that. I therefore proceed on the basis that
he would have had about four months downtime and then would have been employed
full-time at the Mean rate set out in the table in Mr Davies' report.
[105] That seems
to me to lead to the following conclusion in terms of the relevant figures.
After some four months without employment, he would have started earning at the
beginning of August 2010. His rate of pay for the period from 1 August
2010 until 5 April 2011 would have been £33,415 gross. Parties can
no doubt work out the net sum. Interest at 8% a year falls to be awarded on
that sum from 6 April 2011 to date. Thereafter, from 6 April 2011 to
5 April 2012 he would have earned that the rate of £34,791 gross.
Again, I would invite parties to work out the net sum. Interest on that sum
at 8% a year runs from 6 April 2012. From 6 April 2012 until
5 April 2013 he would have earned at the rate of £35,487 gross. The
net figure should be capable of agreement. I was not given a separate figure
for the rate from April 2013, but the period is short and I propose to use
the same figure as for the year leading up to that date. Interest on the sums
representing net lost earnings from 6 April 2012 to date should run
at 4% from that date.
(c) Future
wage loss from judgment
[106] The
assessment of future wage loss from the date of judgment depends on my
assessment, on the evidence, of what would have happened had the pursuer not
been injured; and my assessment of his ability to obtain paid work now and in
the future.
[107] It was
submitted by Mr Jones on behalf of the defenders that this was not a case
where I should apply the traditional multiplier/multiplicand approach to the
assessment of future wage loss. It was submitted that there were too many
uncertainties in relation to what the pursuer might have done if uninjured and
what he might be able to do in his injured state. I was referred to a number
of cases on this point, including Blamire v South Cumbria Health
Authority [1993] PI QR Q1, Ronan v Sainsbury's Supermarket
Limited 2006 WL 1783249, Ward v Allies & Morrison
Architects [2012] EWCA Civ 1287, McGhee v Diageo [2008]
CSOH 74 (Lord Malcolm) and Brand v Transocean [2011]
CSOH 57.
[108] I recognise
that there are indeed cases where the traditional multiplier/multiplicand
approach is unsuitable because of the uncertainties or imponderables preventing
any proper assessment of what the pursuer would have done and would have earned
had he not been injured, and what he is or may in the future be capable of
doing it despite his injury. Whether adopting a "broad axe" approach, as Mr Jones
called it, leads to any greater certainty is, perhaps, a matter for debate.
However, I need not resolve that question. I have formed the view in this case
that I can reach a decision both as to the ability or otherwise of the pursuer
in his injured condition to obtain paid employment and as to the approximate
level of remuneration which he would have been able to achieve had he not been
injured.
[109] As I have
already made clear, I am satisfied that there is no realistic prospect of the
pursuer of obtaining paid employment in the future at any rate so as to impact
upon the assessment of future wage loss. I need not repeat the analysis of the
evidence.
[110] Further, as
again I have made clear, I am persuaded to a reasonable degree of confidence (ie
not merely on a bare balance of probabilities) that the pursuer would have been
able to obtain similar work had he not been injured. There are, of course,
some uncertainties. He might have been ill. He might not have wished to work
abroad if this would interfere with his family concerns. There might be some
uncertainty as to the precise date on which he would have wanted to retire.
And, of course, working in heavy industry there is always the possibility that
he might have had to stop work earlier than he would ideally have liked.
Having said that, on this last aspect, it is quite probable that had he
continued working in the industry he might have progressed to a management job
and therefore been less at risk of having to retire early.
[111] In my
opinion I can properly assess the pursuer's future wage loss on the basis that
he would have obtained employment in a similar industry and would, after having
been employed for a few years, have earned at about the level for the Upper Quartile.
As at 2012/2013, that Upper Quartile figure is given by Mr Davies at £39,701
a year gross. During the same period, or a bit earlier, Mr McLardie was
earning £47,123 a year gross or £34,046 net. Assessment of this sort
is not a precise science. I take into account that the pursuer might not have
wanted to work away from home for large periods of his working life. I do not
think it right, therefore, to choose a figure significantly above that for the
Upper Quartile. It seems to me that I would be doing justice to the evidence
by taking a figure for his earnings as at the date of this Opinion of £40,000
a year gross. Again, I would invite parties to agree the net figure. It seems
to me likely that he would have worked to retirement age (66) but not
beyond.
[112] There is a
difference between the parties as to the appropriate multiplier and even as to
the appropriate way of identifying the correct multiplier. Mr Jones, in
his written submissions, helpfully identified two possible options, referred to
in his note as "Model B - Ogden 7 but adjusted/differential" and
"Model C - Ogden 7 unadjusted". I would welcome some further
assistance on which of these models should be accepted and as to the resulting
figure for loss of future earnings. Of course, if parties are able to reach
agreement there will be no need to address me.
(v) Pension loss
[113] There
was a measure of agreement between the parties as to this head of damages,
subject to my findings as to the pursuer's future earnings had he not been
injured. I am unclear from the material before me what the figure should be
inserted full pension loss having regard to those findings. No doubt parties
will be able to agree this.
Interim payments
[114] The defenders have made interim payments totalling £62,000.
These will have to be taken account of in the final figure awarded. Whether
the timing of those payments has any bearing on the interest calculations is a
matter for parties to agree.
Disposal
[115] I propose to put the case out by order for discussion on any
outstanding points and on the terms of the interlocutor to be pronounced giving
effect to my findings. As indicated above, I would be grateful if parties
could attempt to resolve any outstanding matters. In so far as there are any matters
remaining in dispute, I will hear submissions on them. In that event it would
be helpful if brief notes of argument could be submitted two days ahead
of the by order hearing.
[116] I am
grateful to parties for their assistance in this matter.
