Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_74.html
Cite as: 2021 GWD 2-30, 2021 SCLR 68, [2020] ScotCS CSIH_74, [2020] CSIH 74

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Malcolm

Lord Pentland

[2020] CSIH 74

A294/07

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in the Reclaiming Motion

DARREN JOHN CONQUER

Reclaimer

against

LOTHIAN HEALTH BOARD

Respondent

Reclaimer: Smith QC, Henderson; Campbell Smith WS, LLP

Respondent: StephensonQC, Khurana QC; National ServicesScotland; NHS Scotland Central

Legal Office

30 December 2020

Introduction

[1] The reclaimer in this action was awarded damages for the consequences of a

negligent failure, in 2003, correctly to diagnose and promptly to repair a detached tendon in

his right elbow (“the injury”). By the time of the proof, liability was admitted, it being a

matter of agreement that prompt repair would have resulted in a good outcome in terms

both of function and pain . In fact the reclaimer has never regained full function of his arm

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and has a marked disability as a result, and continues to suffer activity related pain in his

arm. Had the injury been properly identified and treated he would not have required

subsequent operations in 2004 and 2009, during one of which inadvertent division of a

cutaneous nerve left him with pain and altered sensation in the area of the nerve. The other

operation, which involved a graft from his hamstring, left pain and discomfort at the graft

site. Following a proof on quantum the Lord Ordinary awarded damages in the sum of

£542,397.16 (inclusive of a sum already received as interim damages). This sum included the

Lord Ordinary’s assessment of the total past and future wage loss consequent upon the

reclaimer’s inability to pursue his trade as a plumber.

[2] Notwithstanding the admission of liability, there remained numerous issues in

dispute at the proof. Two key areas of dispute at the proof, and the subject matter of this

reclaiming motion, were (i) whether serious gastro intestinal (“GI”) complications that the

reclaimer suffered, principally following surgery in August 2012, were causally connected to

the injury, and had contributed to his wage loss; and (ii) how the reclaimer’s loss of income

should be calculated. The first ground of appeal was that no reasonable judge could have

reached a conclusion other than that the GI complications were causally related to the injury.

In reaching a contrary conclusion the Lord Ordinary had ignored or given insufficient

weight to evidence, said to be “unchallenged”, given by a gastric surgeon led on behalf of

the reclaimer. The second and third grounds were that no reasonable judge could, in the

circumstances of the case, have rejected unchallenged evidence from the reclaimer’s

employment expert, or reached the conclusions on wage loss arrived at by the Lord

Ordinary in this case. On both issues the Lord Ordinary’s opinion was unreasonable and

unreasoned.

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[3] It was not disputed that from the period September 2003 onwards the reclaimer had

also suffered a number of other injuries and medical conditions which had required

treatment. The reclaimer accepted that injuries affecting his shoulders, spine, and left arm

were not causally connected to the respondents’ negligence, and that the effect of these

would have to be reflected in the wage loss calculation.

GI Difficulties

[4] It was accepted that the reclaimer had suffered gastro intestinal problems going back

many years, at least to 1989, and that these had worsened over the years. The parties agreed

a history of treatment received for these which included numerous investigations, and the

identification of oesophagitis (Grade A 2004, Grade B 2008) and hiatus hernia. He continued

to suffer symptoms through 2010 and 2011, although his condition worsened from 2012, in

particular following an operation in August of that year for fundoplication (a form of gastric

bypass). Post-operative complications led to further hospital admissions. He was admitted

to hospital twice in October 2012, once in November and once in December . In 2013 he was

admitted to hospital 7 times with GI problems, and underwent surgery in connection

therewith in October of that year. In 2014 he had many hospital attendances and was in fact

admitted on 6 occasions. He underwent laparoscopic insertion, and subsequent removal, of

a feeding jejunostomy, in June and December of that year . In January 2016 he underwent

repair of a hernia, and continued to seek medical assistance for GI problems during the year,

for pain and bloating. In January 2016 it was noted that he continued to have symptoms and

it was recorded that he was struggling to decrease his opiate use. In addition it was not

disputed that the difficulties which the reclaimer experienced following the operation in

August 2012 were caused by chronic use of opioids.

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[5] At proof, the argument for the reclaimer was that his chronic use of opioids had

arisen because of the ongoing pain in his right arm. The injury had thus caused, or made a

material contribution to, the development of his serious GI problems, and the wage loss

thereby occasioned.

[6] On behalf of the reclaimer, evidence was led from a gastro-intestinal surgeon,

Mr Manson, who noted that the reclaimer had an unusual pain reaction following the

operation in August 2012. Although there had been nothing wrong with the operation, the

reclaimer had such severe pain thereafter that it required the administration of morphine via

a patient controlled pump. This was a very unusual reaction. Mr Manson had not seen such

a reaction before nor had colleagues with whom he discussed it. The conclusion he drew

was that the reclaimer had an abnormal pain perception, for which the commonest and

likeliest explanation would be opioid usage. It was very difficult to explain this in any other

way. It was Mr Manson’s understanding that for some time prior to the operation the

reclaimer had been taking opioid medication. For this understanding he referred to a peri-

admission note which referred to the reclaimer taking dihydrocodeine. Mr Manson had also

seen, in hospital records, a letter from the reclaimer’s GP which stated "Tramadol, 50 mg

capsules, one capsule 4 times a day when required from 25/1/2010 to 27/8/2014". In cross-

examination he accepted that if there was no evidence to support chronic opiate use prior to

August 2012, his explanation would require to be questioned:

“Yes, I would actually. If there really is no evidence of chronic opioid use leading up

to the operation in 2012, if there really is no evidence then I would have to accept

that my explanation should be questioned.”

Cross-examined about a lack of indications within the GP records of sustained prescription

of Tramadol prior to the fundoplication he said “I think, these records are very hard to know

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exactly what they represent and I think the person who can probably tell us best of all is

Mr Conquer himself.”

[7] The reclaimer himself did not give evidence about opiate use, whether as to the

commencement, frequency or duration thereof. In the reclaimer’s pleadings, the history of

his GI problems is narrated, amongst which it is averred that:

“By 2010/2011 the pursuer’s reflux had worsened. He started to take and persisted in

taking opioid analgesics.”

The fundoplication in August 2012 is noted with the averment that

“By this time he had developed a significant tolerance to analgesics.”

[8] The Lord Ordinary was not satisfied that the protracted GI illness from about 2012

was caused or materially contributed to by the admitted negligence. Her reasons are set out

in paras [85] – [108] of her opinion [2020] CSOH 8. She considered in detail the GP records,

which had been examined with several witnesses. The detail of those is given in her opinion

and need not be repeated here. Taken short, the point is that there was no evidence of

significant opiate use prior to August 2012 in the GP records. There was no such evidence

from the reclaimer. The letter referred to by Mr Manson was not spoken to in evidence by

its author, and it could not be said whether it was meant to indicate continuous use or

occasional prescription during the period in question. It was not clear that it referred to

continuous use over the period, or occasional “as required” use. Examination of the GP

records was not consistent with the former, which had been the inference drawn by

Mr Manson. The only records so far as GP prescribing before August 2012 is concerned,

were of occasional prescriptions of opioid medication for short term use, a number being for

conditions other than right arm pain . There was some short term provision of opioid

medication following hospital appointments and admissions, but not in relation to right arm

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pain. The Lord Ordinary was not satisfied that there was an evidential basis to justify

Mr Manson’s opinion that the reclaimer already had a significant tolerance to opioids by the

time of the operation in 2012. The evidence of the reclaimer’s protracted illness between 2012

and 2018, and the effect it had on his ability to work, caused her to exclude that period from

her calculation of wage loss.

[9] It was asserted in support of the first ground of appeal that on both these points the

Lord Ordinary erred, and that no reasonable Lord Ordinary could have reached these

conclusions. We disagree. The Lord Ordinary examined the evidence in detail and the

conclusions she reached were conclusions which were open to her on the evidence. Whether

others may have reached a different conclusion is neither here nor there: the only question

is whether the conclusions reached by the Lord Ordinary were reasonably open to her on

the evidence, and it is patent to us that they were. The first ground of appeal must therefore

fail.

[10] In our view there is even less merit in the second and third grounds of appeal. The

Lord Ordinary explained the history of the reclaimer’s work as a plumber, on a self-

employed basis and in respect of various companies he set up to pursue that business, most

of which failed. She concluded that the employment history was not straightforward, but in

fairness to the reclaimer also recognised that he was hard working and entrepreneurial and

would have been likely to earn more than an employed plumber . She found a reasonable

method, on the evidence, for compensating him on that basis. The argument that her failure

to accept the “unchallenged” evidence of the reclaimer’s employment expert was in the

circumstances of the case unreasonable, and that no reasonable Lord Ordinary would have

acted as she did, must also fail. The Lord Ordinary carried out a detailed and

comprehensive examination of the evidence, weigh ed up all the appropriate factors and

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reached conclusions which were perfectly open to her on the evidence. On questions

relating to past and future wage loss it is trite that the first instance court should take a

broad and reasonable approach towards assessing damages, especially where imponderable

factors arise as they do in the present case. That is exactly the approach that the Lord

Ordinary adopted, having given close consideration to all the relevant strands of evidence.

There is no legitimate basis on which this court could or should interfere with her

conclusions.

[11] Overall, we consider that the reclaiming motion amounted to no more than a thinly

veiled attempt to persuade this court to retry the case. The limited grounds upon which the

court will set aside findings on matters of fact have been articulated in numerous decisions

in recent years. Suffice to say that the reclaimer’s submissions fell far short of satisfying us

that there is any sound basis for interfering with the Lord Ordinary’s cogent analysis and

assessment of the evidence and the issues before her. For all these reasons the reclaiming

motion will be refused.