Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 76

 

PD1318/14

OPINION OF LORD BANNATYNE

In the cause

HP

Pursuer;

against

TEREX EQUIPMENT LIMITED

Defenders:

Pursuer:  Hajducki QC, Christine;  Thompsons

Defender:  Smith QC;  BLM, Glasgow

16 June 2015

Introduction

[1]        This case came before me for proof.  The pursuer sought reparation for loss, injury and damage sustained in an accident while in the employment of the defenders.

 

Background
[2]        The following matters were admitted on behalf of the defenders:

• On 24 June 2011 the pursuer was working in the course of his employment with the defenders.
• The pursuer was working on the assembly line within base three.
• A large vehicle axle required to be moved, using an overhead crane.
• The pursuer required to swap the chain sets.
• The pursuer slipped because of the presence of water lying on the surface of the floor.
• Prior to the occurrence of the pursuer’s accident, water had been leaking through the roof of the defender’s premises.

Beyond the above (a) for the purposes of this action only primary liability for the accident was admitted by the defenders and (b) it was accepted by the defenders that the pursuer had as a result of this accident sustained a minor back injury for which he was entitled to recover damages.

 

The issues

[3]        The issues in the case were as follows:

1.         Whether in terms of the Law Reform (Contributory Negligence) Act 1945 there had been any contributory negligence on the part of the pursuer and if so the extent thereof.

2.         Whether there was any causal link between the said accident and an injury to the pursuer’s left shoulder.

3.         Whether there was any causal connection between the pursuer’s psychiatric condition and the accident.

 

Witnesses

[4]        The following witnesses gave evidence.

For the pursuer:

• The pursuer
• The pursuer’s father
• Alex Scott
• Grant Fraser
• Mr A C Campbell, consultant orthopaedic surgeon
• Dr Timothy Rodger, consultant psychiatrist

For the defenders:

• Mr Nutton, consultant orthopaedic surgeon
• Dr J McLennan, consultant psychiatrist

 

The first issue:  contributory negligence
The evidence as to the accident
[5]        The pursuer’s position regarding the accident beyond what was a matter of admission was this:  the chains weighed about 100 kilograms;  at the time of the accident he was walking forwards when holding the chains;  on his first stride forward when holding the chains he slipped on the water on the floor;  he lost his balance but did not fall to the ground;  there was no blow to his left shoulder at the time of the accident;  when he slipped he tried to steady himself with his right hand;  the chains were in his left hand;  the lighting at the locus of the accident at the material time (it was night) he described as “adequate” and in reply to a question:  “reasonably well lit?” he said “yes”;  he had not seen the water on the floor prior to the accident;  when asked why he did not see the water he answered: “did not look at the floor when walking-looking forward”. 

[6]        The only other direct evidence regarding the circumstances of the accident came from Mr Grant Fraser, another employee of the defenders.  His position was this:  the pursuer did not normally work in the area of the factory where he was injured;  at the material time the pursuer went to move, lost his footing on the water and “his whole body went, two legs sliding in water, trying to keep balance, whole body turned and twisted”.  He said that he had first seen the water on which the pursuer slipped when he slipped.  He said the factory floor was grey, the lighting made the floor shiny and so you had to look for the water and the said water was hard to see.  In cross-examination he accepted that the factory was pretty well lit.  Mr Alex Scott, another colleague of the pursuer’s gave evidence.  He had not seen the accident.  He did, however, see the pursuer and the locus of the accident.  His evidence was that the lighting did not light the floor well.  The floor was painted grey and the way the light hit the painted floor it was not easy to see the water. 

[7]        No evidence was led on behalf of the defenders in relation to the issue of contributory negligence. 

 

Submissions on the issue of contributory negligence
[8]        Mr Hajducki submitted that the pursuer was not working in his usual workplace at the time of the accident;  he was carrying out a difficult task;  neither he nor Mr Fraser had seen the water before the accident;  the floor was grey and there were problems in seeing water due to reflection from the lights.  In these circumstances he invited me to make no finding of contributory negligence or if I thought contributory negligence was present to make a minimal finding of say only 10%.

[9]        With respect to the issue of contributory negligence Mr Smith did not expand upon what he said in his written submissions which was this: 

            “… a discount of 50% of the damages should be applied to the damages awarded.  Whilst it is accepted that the onus of proof is on the defenders, what is clear is that this area was well lit.  Anyone walking around ought to take care where they place their feet and of course the presence of water is hardly a dramatic thing to encounter.

           

            It is submitted that despite primary liability being accepted, the pursuer must carry some responsibility for his own actions.”

 

Discussion on the issue of contributory negligence

[10]      As was accepted by Mr Smith the onus in establishing contributory negligence was on the defenders. 

[11]      I am clearly of the view that the defenders did not meet the burden of proof which was incumbent upon them. 

[12]      The defenders led no evidence in relation to the circumstances of the accident.  With respect to these circumstances I am persuaded that the pursuer was a credible and reliable witness.  He gave his evidence in a straightforward manner, without “gilding the lily” and his evidence on the circumstances of the accident had been consistent throughout.  I also had no difficulty in accepting the evidence of Mr Fraser who was an entirely independent witness and there was no suggestion by Mr Smith that I should not accept his evidence. 

[13]      Looking to the evidence before me regarding the accident it appeared to me that the following factors weighed against making any award of contributory negligence:  the pursuer was not working in a part of the factory with which he was familiar;  there was no evidence that the water upon which he slipped was of a large extent and therefore should have been noticed by him due to its extent;  the evidence of Mr Fraser was to the effect that although reasonably lit the factory floor colouring and the reflection from the lights made the water difficult to see, this evidence relative to the difficulty of seeing the water on the floor was corroborated by the evidence of Mr Scott, (Mr Fraser and Mr Scott were independent witnesses whose evidence I had no difficulty in accepting as credible and reliable);  neither the pursuer nor Mr Fraser had seen the water prior to the accident;  the task being carried out by the pursuer at the material time could in my view be described as a difficult one upon which he required to concentrate;  it involved the carrying of heavy chains;  the accident happened on the pursuer taking his first step forward;  I believe there was some force in the point made by the pursuer in his evidence that he was looking forward and not straight down when he moved and accordingly had not seen the water on the floor.  Taking all of these factors into account I am satisfied that no contributory negligence was established. 

 

Causation:  the second and third issues
[14]      The first question regarding causation was the credibility and reliability of the pursuer. 

[15]      Mr Hajducki’s submissions on this issue were short and can be summarised thus:

[16]      The pursuer although an unusual person was nevertheless credible and reliable, he had not attempted to “gild the lily” and had given his evidence in a straightforward manner.   

[17]      Mr Smith’s position was that at a minimum the pursuer’s evidence should be viewed with caution and that his evidence may be unreliable or incredible.  He described the pursuer as an unsatisfactory witness both regarding the mechanism of the accident and the consequences thereof. 

[18]      In his written submissions he relied on the following as giving rise to concern:

•  

  “

   

It is clear that he was less than frank with Mr.Campbell about previous history of injury.  Although he [sic] an injury to his right side, he suffered a clavicle fracture which he did not see fit to tell Mr.Campbell about.  This is of importance when one is considering the relevance of bilateral ACJ injury.

 

• He has been inconsistent in his history providing.Dr.McLennan was quite adamant that the pursuer did not disclose to her that he had a significant psychiatric history which the pursuer had for a considerable time pre accident.

   

• He was clear to Dr.McLennan that the accident only caused him immediate pain in his back and not his shoulder.However, the pursuer told others a different version of events.

   

• Similarly, he told Dr.Rogers [see 6/5] that his immediate pain was to his back and it was only after his return to the UK that his back gradually increased in pain.

   

• The pursuer was reluctant to admit in court that he told Dr. Ayoub that he had bilateral shoulder problems at least by early 2013.The Joint Minute agrees that the records are as they bear to be.The detailed content of the record makes it difficult to brush it aside as being an aberration by Dr. Ayoub.The question remains therefore as to why the pursuer would be so reluctant to admit this.

   

• The pursuer is clearly someone whose personality is such that he is prepared to adopt extreme measures in his own interests.His explanation for the various violent incidents in his life both pre and post-accident do not sit well with someone who can be trusted as a witness.

   

  …

   

• His demeanour in the witness box was such that he was difficult to pin down in many ways.

   

• The post accident incident where he had injured his hand whilst demonstrating the martial arts move.Quite why he was at a friend’s gym if he was in so much pain is illogical.His story that it was a one off is too convenient.Indeed, one wonders why in the face of this important matter we did not hear evidence from the friend to the effect that this was a one off event.

   

• The fact that he has no muscle wastage from one side to the other.This suggests that he is not reducing usage of the left side.He remains muscular, and according to Mr.Nutton, this is indicative of considerable use.”

 

Discussion on pursuer’s credibility and reliability
[19]      It was not a matter of contention that in order for the pursuer to succeed in establishing a causal link between the accident and the problems with his shoulder and his psychiatric injury I required to hold him as credible and reliable. 

[20]      I find without difficulty that the pursuer was a credible and reliable witness.

[21]      Mr Smith’s first broad contention was that the pursuer had been inconsistent in his history giving.  As above laid out, in support of this contention, a number of detailed arguments criticising the pursuer were advanced by Mr Smith.  I would intend to look at these detailed points made by Mr Smith in turn. 

[22]      With respect to the first criticism relative to the failure to advise Mr Campbell about a right shoulder injury it has been the pursuer’s position throughout that the injury which resulted from the accident was to his left shoulder.  In these circumstances I have no difficulty in accepting the pursuer’s position in evidence that he believed Mr Campbell was asking about his left shoulder and this was why he did not advise Mr Campbell of his previous right shoulder injury.  Moreover, it is difficult to see how the pursuer would have known at the stage of speaking to Mr Campbell that his right shoulder injury was of relevance to a consideration of a bilateral ACJ injury.  He is after all not a medically qualified person.  I accordingly am persuaded that his failure to mention this injury to Dr Campbell does not show a lack of candour and does not strike at his credibility and reliability. 

[23]      As regards the second point:  not disclosing a significant pre-accident psychiatric history to Dr McLennan I would observe that at 4.04 of her report (7/6/1 of process) she says this:

“The only time he had any health problems prior to his accident was in 2010, when his ex‑partner had withheld contact with his son.  He said this issue was eventually resolved amicably and he has had no further mental health problems.  He said that before his accident, he felt that there was nothing in life he would be unable to overcome.”

 

[24]      The main mental health problem, according to the pursuer’s medical records, which the pursuer had prior to his accident, related to the period 2010 and arose from the breakup of his relationship with his ex-partner and accordingly I do not believe that it is fair to characterise his position on this matter in the way advanced by senior counsel for the defenders.  The pursuer in his past also had a problem with his temper, however, Dr Roger did not regard this as a psychiatric problem.  In these circumstances it is perhaps not surprising that the pursuer did not report this to Dr McLennan as a psychiatric problem. 

[25]      Turning to whether the pursuer had pain in his shoulder immediately following the accident the most important piece of evidence is in the GP Records which are 6/4 of process.  At page 70 there is the following entry:

“08/09/2011 consultation L shoulder discomfort since back injury.  Pain with abduction above 90 degree and ext rotation.  For self-referral to physiotherapy.”

 

[26]      This entry shows that from almost immediately following the accident the pursuer is complaining of a problem with his left shoulder dating from the accident.  This in my view provides major support for the pursuer’s contention that he has had problems with his left shoulder dating from the accident.  It appears to me highly unlikely that from this early stage the pursuer was setting out to falsify the medical record.

[27]      It was also clear from the evidence that the major problem immediately following the accident was with the pursuer’s back and that at least initially the back was what the pursuer was focusing on.  Mr Campbell believed that the back symptoms to some extent had initially masked the shoulder problems.  In these circumstances it is perhaps unsurprising that on his first visit to the general practitioner following the accident on 27 June 2011 it is noted that he had been seen at A&E with back pain. 

[28]      In his evidence that he had had problems with his shoulder from the time of the accident the pursuer was supported by first the evidence of his father that he had back and shoulder pain while on holiday in Florida.  The holiday in Florida began on 28 June 2011.  I found the pursuer’s father to be a reasonably impressive witness whose evidence I felt able to accept as credible and reliable.  Senior counsel for the defender made one passing criticism of the father in the course of his written submissions.  I do not regard this criticism as being of any materiality and it did not undermine my overall view as to the acceptability of the evidence of the pursuer’s father. 

[29]      The pursuer in relation to this issue was also supported by the evidence of Mr Alex Scott, who said that immediately following the accident the pursuer mentioned both a back and a shoulder injury.  I could identify no reason why I should not accept the evidence of Mr Scott on this issue.  He appeared to have a reasonably good memory about seeing and speaking to the pursuer immediately following the accident.  He did accept in the course of cross examination that he could be mistaken about him mentioning his shoulder.  As a reasonable witness he was bound to accept that he could have made a mistake.  However, he appeared to me reliable on this matter.  Thus there was substantial support from these two witnesses that the pursuer from the time of accident onwards had been suffering from a shoulder injury. 

[30]      Mr Smith directed my attention to what the pursuer had said to Dr Roger on one occasion and to Dr McLennan on one occasion regarding what pain he had had immediately following the accident. 

[31]      What the pursuer had said on these occasions to these witnesses does not cause me to doubt his credibility and reliability in relation to this matter.  These were in my view minor discrepancies in the course of his speaking on many occasions to many doctors about his medical difficulties.  These were not glaring differences.  They were not differences in formally taken statements but in brief histories taken by doctors.  When weighed against the significant body of evidence which I accepted on this issue as above set out these points do not weigh materially in the balance. 

[32]      With reference to what was said to Dr Ayoub I accept the joint minute agrees the records are what they bear to be.  However, it would, if reliance was to be placed on this evidence have been helpful to have heard from Dr Ayoub in order to understand properly the context of these remarks.  I do not attach much importance to these remarks in that when the pursuer was referred to Mr Campbell by Dr Ayoub he was only treated in relation to a left shoulder problem and Mr Campbell’s position on examination was not shaken by these records. 

[33]      As regards the pursuer’s position regarding these records it was this:  he did not accept what was said therein by Dr Ayoub.  He was quite straightforward in stating this.  It was clear from when he was being treated by Dr Ayoub that he was not entirely happy and had sought a second opinion.  This disagreement as to what was said, I considered as to whether it caused me to doubt the pursuer’s credibility and reliability, however, it did not.  I am satisfied that looking to the whole evidence it is not a factor which should cause me to doubt his credibility and reliability. 

[34]      Senior counsel for the defenders went on to assert that the pursuer’s personality was such that he should not be trusted.  I do not really understand this submission.  It is true that the pursuer had used violence in the past, however, I do not see how that causally connects with a lack of trustworthiness. 

[35]      Senior counsel for the defenders criticised the pursuer’s demeanour.  I could not identify anything in the pursuers demeanour which led me to believe that he was not a credible and reliable witness, rather I believed his demeanour generally supported his credibility and reliability. 

[36]      As regards the post-accident incidents I accepted the pursuer’s explanation as to how these had occurred, namely one was a workplace incident and on the second occasion the pursuer was at a friend’s house and demonstrating a martial arts move to him and this resulted in an accident.  No direct evidence was produced on behalf of the defenders to contradict the pursuer’s explanation.  I believe that the second incident was entirely isolated.  Prior to the accident with which the court was dealing the pursuer had been very keen on martial arts and weight lifting.  He had a gym at home.  His evidence and his father’s evidence was that this had been sold post-accident.  It was noticeable that there was no challenge to their said evidence.  Such evidence strongly suggested he was not exercising in the way he had done prior to the accident. 

[37]      The question of lack of muscle wasting on the left side was raised by senior counsel for the defenders.  I preferred Mr Campbell’s evidence on this to that given by Mr Nutton, namely:  that it really showed nothing in the context of this case. 

[38]      I accordingly for the above reasons conclude that the points put forward by Mr Smith give rise to no matter of any significance either when looked at individually or when looked at together which tended to undermine the credibility and reliability of the pursuer.

[39]      Overall I found the pursuer to be a reasonably impressive witness. I broadly agreed with the points put forward by Mr Hajducki namely that he was a straightforward witness who did not seek to “gild the lily”.  He was not caught out in the course of the cross‑examination on any issue of materiality.   In so far as he could be he was also supported by other witnesses and by contemporaneous medical records when properly analysed.  The attack on the pursuer by senior counsel for the defenders at its highest was a root and branch one with respect to the pursuer’s truthfulness (although it also attacked his reliability).  In relation to this I am satisfied that his evidence with respect to the circumstances of the accident and his pre and post-accident medical history rang true.  This was not a case in which a clear pattern of untruthfulness or unreliability on the part of the pursuer appeared. 

[40]      Having regard to the above I, in particular, am satisfied that the pursuer was a credible and reliable witness as to (1) the mechanism of the accident and (2) when the pain in the left shoulder first occurred, namely:  at the time of the accident. 

 

The medical evidence and the issue of causation

(a) The left shoulder injury

[41]      Two witnesses gave expert medical evidence on this issue:  Mr Nutton, consultant orthopaedic surgeon, for the defenders and Mr Campbell, consultant orthopaedic surgeon, for the pursuer.  Both doctors in the course of their evidence stood by the opinions they had expressed in their respective reports.  As well as giving expert evidence Mr Campbell also gave factual evidence regarding the pursuer’s medical treatment, he having been the pursuer’s treating surgeon. 

[42]      The starting point in a consideration of their evidence is the matter upon which they were in agreement, namely:  that the pursuer had osteoarthritis of the acromio-clavicular joint (ACJ) on the left hand side before the index accident. 

[43]      Mr Campbell’s position in summary was that the accident exacerbated this pre-existing condition.  Mr Nutton for a number of reasons did not accept the causal connection.  Mr Hajducki and Mr Smith each submitted that I should prefer their expert witness on this issue. 

[44]      The first basis for Mr Nutton advancing the above position was this:

            “The ACJ is more typically injured by forces applied directly to the point of the shoulder, such as a fall onto the point of the shoulder.  In my experience, it is very uncommon for the ACJ to be injured specifically by carrying objects, even if they are heavy, as in this case.  I feel therefore that there is significant doubt that there is a causal link between symptoms arising in the ACJ and the index accident.”

 

There was no dispute in this case that the pursuer’s accident did not involve a force applied directly to the point of the shoulder.  He went on to say this at page 37 of the transcript of his evidence:

 

            “It would be very unusual taking into account the described mechanism of injury for that to have been a possible cause of exacerbation of pre-existing symptoms.”

 

Then at page 40 of the transcript of his evidence:

            “He states that he was carrying heavy metal chains when he slipped which suggests that he jarred his shoulder? – Jarred his shoulder, yes.

 

            Is that still your…? – If you are trying to make a causal link between exacerbating the existing degenerative change in his acromio-clavicular joint, if he had been carrying heavy chains that might simply have been a mechanism of injury.

 

            And then you say it would potentially traumatise the ACJ? – yes.

 

            And again you say if there are underlying degenerative changes? – yes.  Which I think is accepted there was – yes.”

 

Lastly he said the following at page 41 of the transcript of his evidence:

            “No, I’m asking about the pain in his shoulder when he went to his GP…? – When he went to his GP.

 

            …seven weeks after? – There could be a causal link.  I think it’s tenuous because of the reasons that I’ve already given.  The mechanism of injury is difficult to consider this to be consistent with trauma to the acromio-clavicular joint.”

 

[45]      Mr Campbell believed that the mechanism of injury spoken to by the pursuer was an unusual one, however, he accepted it could cause an injury of the type sustained by the pursuer and he was prepared to accept the causal connection between the accident and the injury to the pursuer’s left shoulder. 

[46]      It appears to me that at page 40 of the transcript of evidence Nr Nutton comes very close in his evidence to accepting that there was a causal connection between the accident and the injury to the pursuer’s left shoulder.  Even taking his evidence at its highest from the point of view of the defenders he does not rule out the mechanism of accident as causing the pursuer’s injury, merely he says that it is an unlikely cause.  Overall there appears to be little between the two experts on this issue and their position is that although unusual the mechanisms of the accident could have caused the degeneration.   

[47]      The second basis for Mr Nutton’s position was this:  the appearance of the shoulders was symmetrical and he contended that this tended to fit with a pattern of coincidental pain to the shoulder not caused by the accident. 

[48]      Mr Campbell in his evidence accepted that the muscle bulk on both sides was the same.  However, he took nothing from this saying that normal activity would maintain muscle bulk.  This he said did not suggest that the pain and discomfort in the left shoulder was coincidental and not related to the accident.  I preferred Mr Campbell’s evidence on this issue.

[49]      Thirdly at pages 18 to 20 of the transcript of his evidence Mr Nutton during examination in chief suggested that the two separate injuries sustained by the pursuer between the date of the accident and the date of proof to which I have earlier referred showed that he was continuing to participate to a significant extent in martial arts activities.  This Mr Nutton stated did not fit in with the picture that the pursuer was seeking to present.

[50]      Mr Nutton also relied on the delay in reporting the shoulder injury to the GP, his position being the pursuer would have had problems with the left shoulder close in time after the accident if it was caused by the accident.   

[51]      The above points when taken together caused Mr Nutton to reach the conclusion that the pain and discomfort in the left shoulder were not related to the accident but were coincidental. 

[52]      With respect to whether the mechanism of the accident could have caused the injury I have already set out my observations on Mr Nutton’s position.  For these reasons I do not attach very much weight to this factor relied on by Mr Nutton particularly when Mr Campbell accepted the unusual mechanism but nevertheless was prepared to hold there was a causal connection. 

[53]      With respect to late reporting of the injury to the left shoulder and the two separate incidents, as I have said I found the pursuer to be a credible and reliable witness and thus I hold that he did immediately have pain and discomfort in his left shoulder following the accident and as regards the two incidents where he was injured I accepted the pursuer’s evidence that on one of these occasions he had fallen and on the other occasion it had been an isolated example of him taking part in martial arts activities. 

[54]      Having accepted the pursuer’s evidence on these matters this undermines the points Mr Nutton was seeking to take from this evidence. 

[55]      As to the muscle bulk issue I have preferred, as I have earlier said, Mr Campbell’s position on this matter. 

[56]      In so far as I was required I preferred Mr Campbell’s evidence to that of Mr Nutton.  Mr Campbell’s evidence was given in a careful and very considered manner.  He had carefully considered all aspects of the injury to the pursuer’s left shoulder.  He fully and cogently answered the various points put to him by Mr Smith in cross-examination.  There was not a huge difference in evidence between Mr Nutton and Mr Campbell.  I believe that Mr Nutton’s opinion was materially influenced by a negative view that he had formed regarding the credibility and reliability of the pursuer.  I did not form that view for the reasons which I have already set out and therefore was persuaded I should follow Mr Campbell’s conclusion relative to the causal connection rather than Mr Nutton’s. 

 

The psychiatric injury

[57]      The next aspect of the case in relation to the issue of causal connection related to the pursuer’s psychiatric condition.  The expert evidence on this issue was given by two witnesses, namely:  Dr Roger for the pursuer and Dr Mclennan for the defenders.  Both doctors in the course of their evidence adopted their respective reports and the opinions expressed therein. 

[58]      The difference in the expert’s opinions on the issue of causation was a stark one.  Mr Roger’s position can be summarised by reference to the following finding in his first report (6/5 of process): 

“As for the aetiology of his depression this is likely to be complex.  I note his past history of depression in 2010 (which was triggered by changes within his relationship).  His past history of depression is certainly a predisposing factor and it makes it more likely that he would suffer from depression in the face of other stressors.  Nevertheless, in my opinion, the accident at the workplace on 24^th June 2011 is the triggering factor for the current depressive episode.  In my opinion it is not the actual trauma itself which has been the stressor but the resultant pain and loss of functioning.  He became increasingly distressed by the fact that he was ‘a liability at the workplace’.  He felt guilty that his colleagues were having to help him out.  He is no longer at work.  He was a man who prided himself on his strength and physical fitness, and the fact that he was a bread winner.  He feels demoralised, guilty and ‘pathetic’”. 

 

[59]      Dr McLennan’s position can be summarised by referring to paragraph 10.09 of her report where she opined as follows: 

“Mr P seems to have had a persistent Mood Disorder (ICD10 – Code F34) since at least 2009 and his diagnosis is likely to be one of Dysthymia (ICD10 – Code F34.1).  He seems to have had fluctuating symptoms of low mood along with some anxiety and it would appear from his case notes that he seems to have felt low in his mood for the majority of the time between 2010 and possibly the present.  He has had a variable response to antidepressants, which again is in keeping with a diagnosis of Dysthymia.” 

 

[60]      Mr Hajducki’s submission was to the effect that I should prefer the evidence of Dr Roger.  Mr Smith submitted I should prefer the evidence of Dr McLennan and in development of that he made the following detailed points in his written submissions: 

            “We say that Dr Rogers has failed to take into account, in reaching his diagnosis, the full impact of the psychiatric position for the year and a half or so prior to the accident date;  and the longer history of emotional problems.  He has also failed to provide a list of the diagnostic criteria from either ICD 10 or DSM V that he relies upon for his diagnosis.

 

            It will be noted again that the pursuer was an unreliable historian:  Dr McLennan pointed out that he gave different versions of events to her than to other witnesses.  She would also have expected consistency in his presentation as he was reactive to her, and seemed perfectly ‘normal’ when she interviewed him yet Dr Rogers had a different impression.  If he suffered a depressive illness, then consistency would be expected.”

 

[61]      On this issue I preferred the evidence of Dr Roger for the following reasons:

1.         On reviewing the medical records the doctor advised that there was no record of the pursuer attending his general practitioner for symptoms of chronic unhappiness with life (dysthymia).  As I understood his position it was this:  if the pursuer had such a problem he would have expected such entries. 

2.         What he saw in the records was a discreet incident of depression in or about 2010 arising from difficulties the pursuer had had with his girlfriend.

3.         His position was that this depression predisposed the pursuer to further episodes of depression and that the accident and its aftermath had caused a further episode of depression.    

4.         It was his position that the diagnosis of depression in 2010 went entirely against a diagnosis of dysthymia.

5.         It was his position that the pursuer’s fiery temper was a clearly separate issue which had no relation to his depression and did not in any way support a diagnosis of dysthymia. 

[62]      I am satisfied that when looked at as a whole Dr Rogers’ evidence gave a cogent and coherent basis for accepting his diagnosis and undermined materially the evidence given by Dr McLennan.  It appeared to me that he had carefully considered the pursuer’s whole medical history and that his analysis of that fitted with his diagnosis.  In particular he had carefully looked at the pursuer’s pre-accident depressive episode and his temper issues and gave clear reasons as to how these factors fitted in with his diagnosis.  I believed he in the course of his evidence fully answered the points made by Mr Smith in his written submissions.  On the other hand I felt, that looking to the evidence, Dr McLennan’s diagnosis did not fit in with the pursuer’s whole medical history. 

[63]      It struck me that Dr McLennan’s views were to a significant degree formed on the basis of not accepting the pursuer as credible and reliable.  As I have said looking to the whole of the evidence, for reasons I have stated, I have formed a different view. 

[64]      As regards the way the pursuer presented to Dr McLennan, this was a matter which Dr McLennan found surprising.  However, this was one isolated factor and it did not shake Dr Rogers’ diagnosis.  I did not see, having regard to the totality of Dr Rogers’ position and his reasoning that it should cause me to prefer the evidence of Dr McLennan. 

 

Conclusions on causation

[65]      I accordingly for the forgoing reasons hold (1) that the pursuer’s left shoulder problems since the accident are causally connected to the accident and (2) the pursuer suffers from depression which is causally connected to the accident. 

 

Damages
Solatium
[66]      On the basis of my decision regarding causation the pursuer’s broad injuries attributable to the accident can be described as follows:    

• Soft tissue injury to his lower back with several months of acute symptoms and thereafter controlled by analgesia.
• Exacerbation of underlying degenerative condition in his left shoulder.
• Acceleration of the onset of symptoms in the left shoulder by a period of around five years.
• Moderate depressive episode requires treatment which would probably take about a year.

[67]      Mr Hajducki submitted that having regard to the above an award of £12,500 for solatium would be appropriate.  He relied on three authorities which dealt with five year accelerations of onset of symptoms of underlying degenerative conditions, one referring to the shoulder and two referring to the lower back.  These cases were Cullen v North Lanarkshire Council 1996 SCLR 1109;  McLachlan v Early Learning Centre 2011 GWD 7-185 and Urquhart v Fife Primary Care NHS Trust 2007 SCLR 317. 

[68]      With respect to the additional factor of the psychiatric injury he relied on the case of Bremner v Bartlett 2008 GWD 1-16.  I have considered these various authorities and I am persuaded that they support the figure contented for by Mr Hajducki under the head of damage. 

[69]      Mr Smith’s submissions with respect to an appropriate award for solatium were based on his contention that the necessary causal connection had not been established.  I rejected this position.  He did not make any real criticism of the figures put forward by Mr Hajducki should I not be with him in relation to his primary submission as regards causation. 

[70]      In these circumstances I accept the figure put forward by Mr Hajducki.  He submitted that interest with respect to this head should be approached as follows:  interest on 4/5ths of the award at 4% per annum for 44 months to date which equalled £1,467.  I accept this approach.  I have added a further £100 in interest to cover the period between proof and the issuing of the opinion. 

[71]      Accordingly under this head I award the sum of £12,500 plus interest of £1,567. 

[72]      With respect to past loss of wages Mr Hajducki accepted that there was no loss prior to 5 July 2013.  Thereafter the pursuer was off work barring a short period when he returned in March/April 2014 and his net weekly average pay in the 13 weeks prior to 5 July 2013 was £258.69.  Therefore in the 87 weeks to the date of proof he submitted that the pursuer would have been expected to earn £22,506.13.  His actual income during that period was £10,160.23, giving a loss to date of proof of £12,345.80.  Applying interest to that at the rate of 4% per annum gave an interest figure of £1,810.72. 

[73]      Mr Smith did not dispute the figures used by Mr Hajducki and the arithmetic applied in the calculation.  However, if the court were not with him with respect to his primary position relative to causal connection his position was this:  the pursuer’s shoulder would have been symptomatic even if there had been no accident by early 2013 in that he suffered no wage loss until that point and appeared to be working essentially normally.  No award should be made under this head.   

[74]      His second alternative hypothesis was this, namely:  if it was the case that the operation which the pursuer underwent on his shoulder was due to the accident in some way, the pursuer would have required time off work anyway when the operation was ultimately required.  Accordingly, all this did was bring forward the date when the operation was required and there accordingly was no loss.    

[75]      I do not accept the first esto position advanced on behalf of the defenders.  The clear evidence of Mr Campbell was that the accident had accelerated the onset of symptoms by five years.  His position, which I accepted, was that the pursuer would have required to have had the operation in 2016 even without the accident (5 years after the accident).  The claim for past wage loss all fell within that 5 year period.  It seems to me reasonable to hold that the pursuer would have worked during the entire period for which damages are claimed under this head.

[76]      With respect to the second line of argument put forward on behalf of the defenders, I am persuaded that the pursuer, even without the accident, would have required this operation.  He was off work between 5 July 2013 and 28 February 2014 as a result of the operation and psychiatric problems.  No precise figure was given in evidence for how long a normal recovery from such an operation would have taken, ie excluding psychiatric difficulties.  I have estimated, on looking to the whole evidence, a period of 16 weeks and have deducted that number of weeks from Mr Hajducki’s figure.  After the pursuer’s return to work on 28 February 2014, his continuing absence I believe was due to a combination of physical problems from his left shoulder and his psychiatric condition, which combination would not have been present but for the accident and accordingly he is entitled to claim for this further period.  Deducting the 16 week period and taking into account the period from proof to the date of this opinion, gives a figure for past wage loss of £11,311.04 and interest of £1,795.

[77]      Accordingly I calculate past loss of wages plus interest to be this: £13,106.04.

[78]      Turning to future loss Mr Hajducki claimed to the end of the five year acceleration of symptoms period.  He used the same figures as he had used in relation to past wage loss which gave a figure for the future of £16,815.00. 

[79]      Mr Smith’s position in reply was a short one, namely:  he submitted that there was no evidence before the court upon which future wage loss could be awarded.  It was his primary position that the redundancy (there was no dispute that the pursuer had taken redundancy) was applied for at the pursuer’s instigation in the face of a down turn in work.  That he submitted drew a line under the future wage loss.  Moreover, the pursuer did not lead any evidence about alternative employment following redundancy which he could have obtained but for the accident, or any evidence as to his prior accident work history, which may have given some idea of his marketability.  Indeed the pursuer’s own medical records suggested that he would have had problems in finding alternative work.   Leaving aside the two obvious episodes of violence, there was also the entry to the effect that he had “lost a lot of jobs” due to his temperament. 

[80]      It seemed to me that looking to the whole evidence a major contributory factor in the pursuer applying for redundancy was his being off work due to the ongoing physical and psychiatric effects of the injuries caused at the time of the accident.  At that time he had no clear idea of when if ever he would be able to return to work and accordingly when offered redundancy by the defenders he was prepared to take it.  I do not therefore think it appropriate to draw a line under the pursuer’s claim for future loss of wages as at 16 January 2015:  the date on which his redundancy came into force. 

[81]      There was, however, more force in the further submissions made by Mr Smith:  the pursuer did not lead any evidence about alternative employment following redundancy which he could have obtained but for the accident or any detailed evidence about his pre-accident work history (the only evidence was that before the defenders he had done heavy work, with the railways) in order to give some idea as to the likelihood of his finding alternative employment and if so in what capacity.  No employment expert was led on behalf of the pursuer.  In the whole circumstances I do not believe that it would be appropriate to make an award of the sum sought by the pursuer.  In the whole circumstances there has to be a broad axe approach to the evidence.  I believe on the whole evidence it can be said that there has been a loss of employability.  In the whole circumstances I would make an award of £5,000 under this head. 

[82]      Finally past services:  Mr Hajducki’s approach was this:  past services were provided by the pursuer’s mother and father.  I was directed to the evidence of the pursuer’s father which was not the subject of cross-examination.  That evidence was to the effect that they had provided two hours of services per day.  Mr Hajducki then took a figure of six hours per week at £5 an hour, (which he submitted was well below the commercial rate) which gave a figure of £1,500 a year and a figure to date of £5,500 plus interest of £807.  For future services he sought a further payment of £1,500, which was for a further 15 months, namely:    to the end of the five year acceleration in the degeneration process.

[83]      Mr Smith submitted that there was insufficient evidence to show that the services provided were necessary.  He submitted that the court was dealing with a man who was on his own evidence capable of demonstrating a karate move, but not able to cook his food.  That was wholly inconsistent.  While it was nice that his family helped him out, the services had to be necessary to be compensatable.  It was noticeable that Mr Nutton did not suggest that such services were necessary. 

[84]      The fact that on a single occasion the pursuer sought to demonstrate a martial arts move does not in my view undermine the necessity for these services.  The rates charged appeared to me to be entirely reasonable and I accordingly award the sum sought by Mr Hajducki adjusted to take account of the period from proof to the date of opinion, giving a past figure of £5,800, interest £850 and a future figure of £1,200.

 

Summary of Award:

Solatium	£12,500
Interest solatium	£1,567
Past loss of wages	£11,311.04
Interest past loss of wages	£1,795
Loss of employability	£5,000
Services past	£5,800
Interest past services	£850
Future services	£1,200
Total	£40,023.04

[85]      Not having been addressed on the issue of expenses, I reserve that meantime.