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URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_8.html
Cite as: 2020 GWD 6-96, [2020] ScotCS CSOH_8, [2020] CSOH 8, 2020 SCLR 542

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OUTER HOUSE, COURT OF SESSION

[2020] CSOH 8

A294/07

OPINION OF LADY CARMICHAEL

In the cause

DARREN CONQUER

against

LOTHIAN HEALTH BOARD

Pursuer

Defender

Pursuer: Smith QC, R Henderson; Campbell Smith LLP

Defender: Stephenson QC, Khurana QC; NHS Scotland Central Legal Office

15 January 2020

Introduction

[1] The pursuer sustained an injury to his right, dominant, elbow during a football

match on 30 July 2003. He sues the defenders in respect of negligent diagnosis and

treatment of that injury. On 1 August 2003 he underwent an operation on his right arm. On

10 June 2004 he had an operation to repair his right biceps tendon. He had a reconstructive

operation on his right distal biceps tendon on 16 November 2009, carried out by Mr Reid,

consultant orthopaedic surgeon.

[2] In November 2016 the defenders admitted liability in the following terms:

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“1. the defenders admit liability to make reasonable reparation to the pursuer for

any loss, injury and damage sustained by him as a consequence of the failure to

perform an ultrasound scan of his right upper arm by 3 September 2003;

2. the defenders admit that had such an ultrasound scan been carried out by

said date (a) it would, on the balance of probabilities, have disclosed a right distal

biceps tendon rupture, and (b) surgical repair of the ruptured tendon would have

been undertaken within a few days thereafter.”

[3] During the period since September 2003 the pursuer has had a number of injuries

and medical conditions which have required treatment. He has had conditions or injuries

affecting his left arm, both shoulders, his spine, and his gastro-intestinal tract. The

defenders plead that for at least parts of the period since September 2003 the pursuer has

been unfit for work for reasons unrelated to their negligence. The pursuer accepts that the

conditions and injuries affecting his shoulders, spine, and left arm are not causally

connected to the negligent treatment of his right arm. He does, however, maintain that his

gastro-intestinal problems are so connected, because they resulted from the ingestion of

opioid medication taken to treat pain in his right arm.

[4] The quantification of damages is complicated also by the pursuer’s work history both

immediately before and in the period since September 2003.

[5] Much of the evidence both about medical matters and the pursuer’s employment

history is not in dispute. The approaches of the pursuer and defenders respectively to

quantification of the loss arising from the admitted negligence, against the factual

background of the pursuer’s medical and employment history, are radically at odds. It is

therefore necessary for me to set out the factual background in some detail.

[6] The pursuer gave evidence, as did his mother, Mrs Catherine Conquer. He led

evidence from Mr Timothy James, consultant orthopaedic surgeon, Mr James Manson,

consultant gastro-intestinal surgeon; Dr Andrew Harrison, a clinical psychologist and

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neuropsychologist, and Mr Peter Davies, employment consultant. The defenders led

evidence from Mr Peter Wade, consultant orthopaedic surgeon, and Dr Joanna Smail, a

general practitioner at Tranent Medical Centre, where the pursuer was formerly a patient.

It was agreed that a report by Mr M S Butterworth, consultant plastic, aesthetic and

reconstructive surgeon dated 8 March 2017 should be treated as his evidence.

[7] Mr James and Mr Wade had had a joint telephone conference before the proof, and

together produced a statement of their positions in response to certain questions formulated

by parties (6/113 of process). It was not an agreed statement of position between the parties.

Parties however agreed that the contents formed part of the evidence provided by Mr James

and Mr Wade, and that I am entitled to consider it and take it into account. They agreed

about certain matters, and narrated their differing views in relation to others. I refer below

to the matters they agreed about where those are material. Although I was not bound to

accept their opinions where they were agreed as to those opinions, I did so. There was

nothing that caused me to reject their agreed position.

[8] Parties agreed that the calculation of interest would be of some complexity given the

two payments of interim damages that the pursuer has already received. I was asked to

provide my conclusions in relation to quantification of damages, exclusive of interest, with a

view to parties addressing me at a By Order hearing in relation to interest. I therefore

produced a draft opinion. Parties appeared at a By Order hearing on 5 December 2012, at

which I was informed that they had reached agreement as to the calculation of interest. I

record the agreed figures for interest elsewhere in this opinion.

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Conditions not caused by the admitted negligence

[9] None of the following conditions is said to be causally related to the negligent

treatment of the pursuer’s right arm. It is a matter of agreement that he developed these

conditions after September 2003. They are potentially relevant in the context of financial

losses.

[10] At the end of May 2005 the pursuer injured his left shoulder while in Prague. He

attended the Edinburgh Royal Infirmary on 3 June 2005, after his general practitioner had

carried out an injection into his left shoulder, which had caused him pain. He was admitted

for analgesia and investigation. He continued to complain of considerable pain in his left

shoulder until at least November 2005. There is agreement as to the passages in the medical

records which describe the condition and its treatment.

[11] On 29 April 2006 the pursuer was admitted to Edinburgh Royal Infirmary with a

complete left distal biceps tendon rupture. On 4 May 2006 a surgical repair was undertaken.

Post-operatively cellulitis was noted, and the pursuer was treated with antibiotics. He was

discharged on 12 May 2006, and was subject to out-patient care until 10 October 2006. On

about 3 August 2016 the pursuer was admitted to Grantham and District Hospital with left

arm pain. On 5 August 2016 an MRI scan of his left elbow was undertaken, and he was

discharged from hospital on 6 August 2016.

[12] On 18 March 2007 the pursuer was admitted to Edinburgh Royal Infirmary with

lower back pain following a fall. He had a possible fracture through the transverse process

of L5. He was discharged on 26 March 2007.

[13] In early June 2007 the pursuer reported to his general practitioner pain and reduced

movement in his right shoulder. His general practitioner referred him to Edinburgh Royal

Infirmary. On 9 October he was seen by Miss McBirnie, Consultant Orthopaedic Surgeon.

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She noted that he appeared to have rotator cuff tendinosis of the right shoulder and a partial

thickness tear of the supraspinatus on the left side. An ultrasound revealed, however, that

the supraspinatus, infraspinatus, subscapularis and long head of biceps were intact. The

shoulder was injected with steroid. On 1 September 2008 the pursuer was admitted as a day

case to Edinburgh Royal Infirmary. He was examined under anaesthetic and underwent

arthroscopy and subacromial decompression At out-patient review on 28 October 2008 he

was noted to have recovered extremely well and was discharged from follow up.

Matters in dispute

[14] The following issues arise in this case:

(a) What would the result have been had surgical repair of the pursuer’s right

distal biceps tendon been undertaken within a few days of 3 September 2003?

(b) What consequences, physical and psychological, have resulted from that

surgery not having been undertaken at that time?

losses as a result of that surgery not having been undertaken at that time.

(d) The quantification of damages in the light of (b) and (c).

Evidence

[15] I summarise here the evidence of the pursuer, Mrs Conquer, Mr James, Mr Davies,

Dr Harrison and Mr Wade. I deal with the evidence of Mr Manson and Dr Smail separately.

It all relates to the causation of the pursuer’s gastro intestinal problems, which I consider in

a section of this opinion dealing with that particular issue. Dr Smail’s evidence related

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principally to the contents of the general practitioner records of the practice of which she is a

partner and to records regarding opioid medication in particular.

Pursuer

The pursuer

[16] The pursuer’s evidence in chief took the form of a signed statement dated 2 May

2019, which he adopted, supplemented by his oral evidence both in chief and in cross-

examination. In the course of his evidence he was referred to 6/25 of process which was a

statement he had prepared relating to businesses with which he had been involved.

[17] He explained that he currently took nine gabapentin capsules for nerve pain. He

took fast acting oxycontin during the day and slow acting oxycontin during the night as

needed. His painkilling medication caused nausea, and he took antiemetic medication to

cope with that. He had not taken his usual pain killing medication before giving evidence

because he perceived that it made him less alert.

[18] He had been keen to be a plumber from an early age, and had undertaken an

apprenticeship. He was, however, keen to become established in his own business. He had

not enjoyed school, and wanted to work “on the tools”. He did not mind working long or

anti-social hours on call-outs, because he could see the financial benefit from doing so. He

set up in self-employment in 1994. He received various awards in recognition of his

endeavour as a young and successful entrepreneur.

[19] His family background was not in plumbing – his father worked predominantly in

sales. His father, however, became involved in the pursuer’s business. The pursuer’s signed

statement narrates that his father became more actively involved in 1996 and that he was in

control of the business. From about 1996 the pursuer became involved in doing work for

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insurance companies in relation to emergency call outs. The pursuer gave evidence about a

number of different companies.

[20] The pursuer said he started up All Clear Plumbing Heating and Building Services

Limited in 1992. His father later became involved in the business. It went into liquidation

on 12 May 1999 as a result of problems with a single contract which had caused the business

to become financially overstretched.

[21] All Clear Emergency Services Limited operated between June 1998 and February

2000. The pursuer’s position was that it was started by his father. The pursuer left the

payroll in 1998 because he preferred at that point to work in relation to bathroom sales and

installations. A colleague dealt with sales, and the pursuer with installations. At that time

his daughter had recently been born. All Clear Emergency Services did not take off because

the insurance business it had anticipated did not materialise. More or less simultaneously

European Bathrooms (Scotland) Ltd was in operation. The pursuer was a director. A

winding up order was made in May 2000. The pursuer had fallen out with his father in

relation to All Clear Emergency Services Limited and wanted to run the bathroom company

himself. The two businesses shared premises, of which the pursuer’s father was the tenant.

When he gave up the lease the pursuer had to give up the shop relating to the bathroom

business.

[22] All Clear Emergency Services (North East) Limited (“North East”) operated between

1998 and 2004. The pursuer consented again to work with his father in this business,

notwithstanding their differences. This business relied on the provision of work by

insurance companies, particularly Royal Sun Alliance (“RSA”) in relation to emergency call

outs. There was a contractual dispute with RSA, in relation to which the company took

advice. RSA had promised that the company would have “exclusivity” in relation to certain

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postcodes in Lothian, Fife and the Borders, and had reneged on that. Business from RSA

represented 80% of the turnover of the business. The pursuer was referred to 6/80 of

process, a letter from RSA dated 25 March 2003 terminating the contract with effect from

20 April 2003. There was a legal dispute as a result which eventually resulted in RSA

making a payment. He was referred also to 6/81, a report to the meeting of North East’s

creditors on 14 May 2004. A winding up order was made in respect of North East on

5 March 2004. The report includes the following passage, entitled “History of the Company

and Reasons for Failure (Details provided by the directors”:

“[North East] commenced trading in 1998 carrying out insurance repair services. In

1999 the company secured a contract with Royal & Sun Alliance (RSA). This contract

was estimated to be worth in the region of £5 million over the following 3 years.

On the back of this contract the company invested heavily in vehicles, plant and

technology to ensure proper management of this contract.

16 months into the contract RSA withdrew [North East’s] exclusivity. In view of the

investment the company had made the company disputed this. Whilst trying to

resolve the dispute the company continued to work with RSA all be it at a reduced

level. Additionally the directors set up contracts with other insurance companies in

an effort to replace the lost business.

At this time and as a result of a reduced income the company’s bankers informed the

company that its overdraft would have to be substantially reduced during 2003. This

puts a severe strain on the company’s cash flow, which was compounded by one of

the company’s customers been [sic] declared bankrupt by the Financial Services

Authority. Additionally another insurance company had not made any payments to

the company for over 7 months.

In order to ease the company’s cash flow position additional funds in the sum

of £180,000 were injected into the company in November 2003.

In February 2004 the company’s order book was estimated to be in the region

of £750,000 and it had secured a major contract with the Bank of Scotland. However

work in relation to this contract was deferred.

In view of this, the Director having a serious health scare, and the company’s

financial position, the director sought professional advice and petitioned the court to

put the company in to liquidation.”

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[23] The pursuer was asked about this passage. He confirmed that he was the director

who had had the health scare. He had had an episode of pericarditis. His family were

anxious because there was a family history of heart-related illness. The reference to

additional funds of £180,000 was a reference to directors’ loans made to the company by the

pursuer, his father, and Stuart McAlpine in order to assist cash flow. His statement provides

more detail as to the source of funds, which included the pursuer’s remortgaging his home.

In his statement the pursuer maintains that the condition of his right arm had a detrimental

effect on the business of North East.

[24] Six or seven months after the operation in 2003 the pursuer tried to go back on the

tools but was not able to. He could not twist or turn his right hand under load without pain.

He was being assured by those advising him that he would get better. His symptoms were

not getting better, and he had some heated exchanges with Professor Court-Brown, the

consultant, regarding the matter.

[25] He had pain most of the time during the period between August 2003 and 2009. He

had a dull pain, and if he used the arm even for a short time the arm would “want to

retract”. He might, for example try to pick up the shopping, or one of his children, and be

unable to. Trying to do so would cause a sharp pain. There was some improvement after

the operation in 2009. It took until the end of 2010 to recover from that operation. He had

continuing pain in his arm after that. He had tried at that stage to return to working on the

tools on and off over a period of about two months. He could not use plumbing tools.

Trying to turn tools was not possible. He had had an almost identical injury to his left

biceps tendon, which had been successfully repaired. He described his left arm as “one

hundred per cent” following the repair. He had hurt his left arm in 2016 by tripping and

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catching his arm on a door handle. He had been due to travel to Newark and attended

hospital there and in Edinburgh.

[26] During the period after 2003 he lived by releasing equity from heritable property.

He also had some money from a business called Edinburgh Plumbing. He said he did not

take a salary during 2006 or 2007. He had taken on plumbers which had been a very

expensive exercise. The business had secured a contract with Edinburgh Council, but that

had run into difficulties because of broader difficulties the council experienced regarding

payments to contractors; because of high overheads, and lack of support from the bank. He

set up another firm, Works Done, because a friend had offered him a contract to do work at

a fire-damaged church in Leith.

[27] He had tried to undertake bathroom design work. Although he was intellectually

capable of the work, he could not do the computer aided design required, because he could

not use a computer mouse. He had tried to use a ball mouse and a hand support, but that

had not helped. He had not been able to do the work with his left hand. He had last been in

any form of employment in 2016. He had given up the lease on his shop at that stage

because he had run out of money, and had used up all the equity available to him.

[28] He could use a keyboard for a short period of time. He had numbness in some of his

fingers, and pain in the arm from his elbow to about three quarters of the way down his

lower arm.

[29] The pursuer and his wife had separated in 2014 as a result of the financial strain on

the family. His ability to interact with his children had been affected. His son had a talent

for racing go-karts and had progressed to a more advanced form of motor racing. The

pursuer had been unable to give him what other young people involved in the field had. He

had been able to help his son attend races, but had had to employ mechanics.

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[30] The pursuer had had gastric problems since before 2003 but had never lost more than

48 hours at a time from work as a result. In 2004 and 2005 the problems became worse, but

settled with a change of medication. In 2008 or 2009 he received medical advice that he

should have an operation for oesophagitis. He put it off in order to undergo the

reconstruction operation. He then had the operation, a fundoplication, in 2012. He had

“horrific” gastric problems after 2012. He had had constant pain in his lower bowel and

could not pass wind. He now knew that the problem had been caused by opioid

medication. He described the period between 2012 and 2015 as without doubt one of the

worst in his life, by reason of gastric pain. He had a further operation in 2013 to deal with

what he understood had been diagnosed as “gas bloat syndrome”. It did not relieve his

symptoms. His new general practitioner had been helpful.

[31] Before 2003 he had been fit and active. He had subsequently put on weight as a

result of reduced activity. He had previously played football, snooker and golf. He had

tried to return to football, but was afraid of falling. He had tried swimming as part of

physiotherapy, but it had not felt right and he had experienced discomfort. He had tried to

play golf in 2011. He had practised for periods at a golf range. He had then been invited to

participate in a charity match, but had experienced unmanageable pain after playing two

holes.

[32] The pursuer was asked about the problems with his shoulders. So far as his left

shoulder was concerned, he had been given an injection in relation to that in the wrong area,

and as a result his shoulder swelled up and was sore. He had forgotten about the matter

until it was mentioned in the course of the proof. He could not be specific about how long it

had lasted, but said that it was a very short period. In relation to his right shoulder, he

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described a restriction of movement. He could not put his hands above his head. It was not

significantly disabling at any time.

[33] In cross examination the pursuer accepted, under reference to figures in 6/81 of

process that North East had been only marginally profitable in the years preceding its

winding up, although he explained that that was as a result of the contractual situation with

RSA.

[34] It was suggested to the pursuer that the impression he had given of working all the

available hours was at odds with an account he had given to Mr James of having had a

number of leisure pursuits and spending time with his family. He explained that he had not

spent every hour actually carrying out plumbing work, but had been available for call outs.

By 2002/3 his business was involved not only in carrying out plumbing repairs but in

carrying out building repairs associated with flood damage, again funded by insurance

companies. Counsel asked the pursuer what he would have done when North East went

into liquidation, had he not had the injury to his right arm. The pursuer said that he would

not have started another business with the same model as North East. He would have gone

back to emergency plumbing of the sort he had done in the 1990s. It had taken a long time

to build a business to the level at which North East had operated, and he would have gone

back to working as a plumber, in which he would have been earning good money. To start

with he would have worked by himself – “just myself and the van”—as he put it. He said

that he still had contacts. It would not have taken him time to rebuild his client base,

because he was “one of the best in the plumbing businesses in Edinburgh” and had a good

reputation.

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[35] When he had started All Clear Plumbing Heating and Building, he had operated on

his own. Part of the business was emergency plumbing. His father had joined him to “do

the paperwork”.

[36] In 6/25 at page 4, the pursuer represented that the reason North East was “put

down” was that he was not on the tools, and that emergency plumbing work was, therefore

not done quickly. The pursuer obtained planning permission to redevelop his house. He

managed the project and used contractors. He started work on this project in 2005 to 2006.

The pursuer said that he and his wife had realised that they were not “getting back to 1994”,

which I took to be a reference to the pursuer’s ability to work as at 1994, and they had

considered using the property as a guest house. The pursuer was asked about a company

called Edinburgh Plumbing and Drainage Company. He said it had not started to trade

until after North East had stopped trading. It did not feature as a source of income in his tax

returns.

[37] Works Done Ltd was incorporated in April 2005. It employed labourers and

plumbers and carried out work at the fire-damaged church in Leith to renovate and convert

part of the space into offices. He did not take income in 2005/6 or 2006/7 because he was

trying to build the business. He had worked until about 2009, the time of the reconstruction

operation, as and when he could. He had not made as much money out of the church as he

had expected. The client was not paying, and a decision was taken to bring the business to

an end. Funding had been an issue both for the client and for Works Done. At some point

his father had come back into the pursuer’s business life and “dominated”.

[38] The pursuer accepted that in 2012 HMRC had made an assessment in respect of

2007/8 and 2008/9 that he had under-declared his income. He was adamant that the

assessment was wrong. He had been unable to provide tax inspectors with paper records

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because they were lost when a building went on fire. The fire had happened before HMRC’s

investigation. He said that the matter was being re-examined by HMRC. This issue was

the subject of part of his signed statement, to which I refer further elsewhere in this opinion.

[39] The pursuer was asked about 7/15 of process, which was a report by the interim

liquidator regarding the winding up of Works Done Ltd. It was suggested to him that

HMRC had presented a petition for the winding up of Works Done Ltd on 8 October 2009.

He said that he had been “on and off” with illness, and if that was what was recorded, that

was what happened. HMRC appeared as creditors for the sum of £129,000.

[40] In 2009/10 the pursuer’s employer was listed as European Kitchens and Bathrooms

(“EKB”) Limited. The pursuer explained that he had received half of a £160,000 settlement

arising from the dispute with RSA. The other half had gone to his father. The pursuer had

used his share to start a new business, a bathroom showroom. His income had been low

because he was trying to build a business. He had family support. His share of the

settlement was virtually gone by 2010/11. He secured an overdraft from the Clydesdale

Bank. In 2011/12 he was listed as an employee of EKB Limited but had received no income.

He had declared self-employed income for that period. That was in respect of work he had

done for Andrew Montague, an individual also connected with the development of the

church in Leith. Mr Montague was by then building houses in Dalkeith. He had no income

from EKB. It ceased to trade. The pursuer went on to assist his father with a larger project.

The pursuer’s father had no plumbing experience, and had come to the pursuer for

assistance in relation with a conversion of offices into flats at Edinburgh Road, Dalkeith.

The pursuer was at that time in and out of hospital. He was on site four or five times. He

had also assisted to some extent in relation to a project at Chester Street, Edinburgh, but it

was his father who had been making the decisions during this period.

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[41] The pursuer started giving evidence on the morning of Thursday 9 May. It became

obvious in the afternoon that he was struggling. He appeared to be in pain, and also to be

experiencing increasing difficulty in concentrating on giving evidence. The evidence of

Mr Manson was interposed on the morning of 10 May. When the pursuer resumed giving

evidence on 10 May a similar pattern emerged. He had difficulty coping as the day

progressed. At times during his evidence he became agitated, particularly in the context of

his evidence about the dispute with HMRC and his dispute with the defenders and the

history of events since 2003. I record none of this with a view to being critical of

Mr Conquer in any way. Rather, I record it because his presentation tended to support the

view that his ability to function on a day to day basis is impaired by pain and the medication

he takes for it. I also formed the impression that the pursuer ruminated on the

consequences of his injury and the now-admitted negligence of the defenders, and that

when he is tired and in pain he finds it difficult to avoid speaking at length about these

matters, to the extent that he was unable to focus on the questions he was being asked by

counsel.

Mrs Catherine Conquer

[42] Catherine Conquer is the pursuer’s mother. She gave evidence that the pursuer had

worked since he was 15 years of age, and had always enjoyed working. She and his father

had tried to persuade him to remain in education, but he had wanted to be a plumber. His

father had arranged with a friend to provide plumbing work experience for the pursuer,

with a view to putting the pursuer off by giving him “dirty jobs” like clearing drains, but the

ploy had not worked, and the pursuer had not been deterred. The pursuer had worked

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long hours, and during the time he had been working out of his parental home had been

doing a lot of emergency call outs.

[43] She had witnessed the difficulties the pursuer experienced with pain in his right arm.

She described him experiencing pain when he tried to do things. She knew he had had a

number of operations, and said that they had not worked. The pursuer could not do the

things that he would like to do. She had in mind go-karting with his son, and the pursuer’s

former pastimes of football, swimming and golf. It had upset her a great deal to see him.

He felt that his friends were still working, and as if they had gone on ahead, leaving him

behind. Since 2003/4 the pursuer had been trying to work hard, but his arm had not let him

do the job that he had been trained to do. His family had been affected. They had been

very upset, as the pursuer had been in and out of hospital so much. She could not

remember a year, apart from perhaps the current year, in which the pursuer had not been

attending Edinburgh Royal Infirmary. Mrs Conquer was not cross-examined.

Mr Timothy James

[44] Mr James is a retired consultant orthopaedic and trauma consultant. Although he

has retired from clinical work, he has continued in medico-legal practice. He had originally

been instructed in relation to the allegations of negligence. He had provided a number of

reports in relation to the case.

[45] Mr James explained that the biceps tendon attaches the biceps muscle to bone. The

muscle is attached to the radius bone of the forearm at a bony bump known as the radial

tuberosity. If the tendon becomes broken, then there is nothing to anchor the muscle to the

bone. Repair could be achieved in two ways, both of which involved reattaching the tendon

to the radial tuberosity. If repair was carried out quickly, it would give rise to a good result.

Page 17 ⇓

The pursuer had had such a repair carried out within a few days of injury to his left arm,

and made a satisfactory recovery, with the function of his left arm returned to normality.

[46] If there was a prompt and correct diagnosis the anatomy was straightforward, in that

the tendon rupture could be identified after making an incision. The muscle would be

pliable and could be brought down to the radius to be reattached. Repair could be achieved

without a great deal of difficulty, with a reasonable prospect of success in the form of a pain

free arm with a good return of function. If a number of weeks were to pass then the

opportunity of a primary repair of that sort would have passed. The muscle could retreat,

and the opportunity to restore normal anatomical length by reattaching the tendon to the

bony origin would be lost. Where anatomical repair was not possible, then a graft would be

taken from elsewhere in the body, attached to the muscle, and attached then also to the

radial tuberosity. That was the operation that Mr Reid carried out on the pursuer in 2009, in

which a graft was taken from the pursuer’s hamstring.

[47] The primary function of the biceps tendon was to enable the arm to rotate in full

supination (that is to a position with the palm upward). If one did not have a biceps tendon,

one could not achieve that movement, and it would affect endurance regarding other arm

movements. It also acted as a flexor of the elbow. The tendon acted with the brachialis to

give power and endurance of flexion.

[48] There was some discussion with Mr James in evidence as to the options open to the

surgeon who carried out the operation in 2004, and the information available to him. Given

the admission of liability, and the defenders’ position which I record below as to the

outcome had the negligence not occurred, it is not necessary to record this in any detail.

Had the pursuer been correctly diagnosed and treated in 2003 he would not have required

the operation in 2004, or that in 2009.

Page 18 ⇓

[49] In report 6/11 of process Mr James had addressed the consequences of the failure to

treat the pursuer’s injury promptly. He interviewed the pursuer on 9 November 2016. He

had recorded an account from the pursuer of a busy and active recreational and

occupational life, and of then becoming unable to work. Nothing in the pursuer’s account

was out of line with Mr James’s physical findings. He examined the pursuer and found that

he had difficulty moving his right elbow. When he tried to test the strength of the arm this

provoked pain. He was unable to achieve a full range of passive movement of the arm

because of the degree of pain it provoked. He did not consider that the pursuer’s account of

a marked restriction in his occupational activities was unjustified or exaggerated. He had

examined the pursuer’s left arm because of the history of injury to that arm and repair of it.

It was useful to him to compare the two arms. The one that had been treated by timely and

appropriate repair had satisfactory function within six months, whereas the other had

ongoing pain, difficulty in flexing the elbow, and pain preventing numerous activities in all

aspects of his daily living.

[50] The pursuer had about half the normal range of supination. That movement was not

achieved under loading. Mr James would expect that the ability to make the movement

would be reduced under load, as a result of pain. If the pursuer was able to make the

movement at all, he would not be able to carry on doing so for very long. Both elbow

flexion and supination were reduced. The pursuer had reduced sensation along the radial

border of his forearm. The pursuer reported a reduction in his grip strength.

[51] There was a risk that the graft would fail. Mr James had found nothing in the

available literature to help him quantify that risk, nor had he come across a clinician who

had had sufficient patients experience a failure of the graft to be able to give any guidance

on the matter.

Page 19 ⇓

[52] Mr James gave evidence in accordance with his report, to the following effect. The

function of the pursuer’s right arm did not at any time return to its pre-accident state.

During the first six years following the accident, the pursuer suffered a marked degree of

disability, due to pain and weakness, in any activity that placed undue stress and strain on

his right arm at the elbow and forearm. This was because he did not have an effective right

biceps tendon which gave rise to persistent weakness of forearm rotation (in supination) and

in elbow flexion. He had distressing pain and altered sensation along the radial border of

his right forearm, as a result of the inadvertent division of the cutaneous nerve of his right

forearm during the operation in June 2004. During the first six years the pursuer was

prevented from engaging in numerous activities in his domestic, recreational and

occupational life. This had continued. The level of disability and time off work related to

the right elbow condition were reasonable and attributable to the pursuer’s injury and its

inappropriate management. The pursuer was unlikely to return to his pre-accident work.

He has had symptoms related to the donor site at his leg.

[53] The pain in the pursuer’s elbow and the effect that movement produces, sometimes

resulting in cramping pain and uncontrollable flexion that takes time to settle down would

affect the pursuer’s ability to work. Anything that the pursuer needed to do with his

dominant arm could only be done for short periods at a time because of the pain provoked

by activity. The pursuer would have difficulty with heavy manual lifting and carrying. His

ability to get into tight spaces would be compromised because of the limited movement in

his elbow. His ability to use screwdrivers and spanners would be limited by the loss of

supination. Mr James had seen the pursuer again in June 2018. There was no marked

improvement or deterioration. There was a slight difference with regard to the right

shoulder. It was a little more restricted than previously, but pain-free.

Page 20 ⇓

[54] I was provided with the joint statement of the experts only after Mr James had given

evidence. Some of the cross examination of him related to matters which were superseded

by the terms of the joint statement.

[55] In cross examination Mr James explained that he was not a specialist upper limb

surgeon. He had been trained as a generalist, and latterly had concentrated on hip and knee

replacement. He had continued working until he was 65 years of age, but had done so

under a different contract from the age of 56. He had continued to see a wide range of

patients and their post-operative management. He agreed with a description of the

presentation of a patient with a tear of the distal biceps tendon to the effect that there would

usually be sudden sharp pain which would then subside, but said that he did not believe

that there was a typical patient or a typical reaction. In times past (before 2003) there had

been controversy about whether to repair this type of injury surgically. Some of the

questioning was directed to the witness’s experience of following up patients after surgical

repair and opportunity to observe outcomes. I do not narrate that in detail, in the light of

the position ultimately adopted by the defenders regarding causation.

[56] Various entries in the medical records were put to Mr James for his comment as to

whether the degree of pain and disability recorded in them was consistent with his own

impression of the pursuer and the complaints the pursuer had reported to him. A record of

24 August 2004 referred to almost full flexion and extension to 170 degrees. Mr James

responded that the entry did not refer to pain. Although the pursuer had near to full

flexion, he had pain at the extremes of the range of movement. The same was the case so far

as extension was concerned. Although there were references to pronation and supination

being well preserved, it was not said that there was a full range, and if it was meant to

suggest that there was a full range of movement, that was not consistent with Mr James’

Page 21 ⇓

own findings on examination. Mr James pointed out that the entry recorded that there was

no new distal neurovascular deficit. It was difficult to comment on the record, which was

made by a trainee grade registrar, and which contained no reference to the pursuer’s level of

pain. He would not have been impressed by similar record keeping by a registrar working

under his supervision.

[57] Mr James was referred to records relating to a particular episode of right arm pain

the pursuer had reported in February 2005 and his attendances at hospital in the following

months. An entry by Mr Chris Oliver, a consultant surgeon, whom Mr James described as

a specialist in upper limb surgery, referred to active flexion, with a full range of flexion and

extension of the elbow, which was weak. It referred to a moderate power of supination,

and a belief on the part of the writer that the bicep was working. Mr James commented

that it was not clear whether extension was passive or active. There was nothing recorded

about the range of supination. Mr James noted that the record referred to there having been

a biceps tendon present, which could not have been the case at that stage. He was not

impressed by the level of detail in the record. Entries dated 7 and 28 February by Professor

Court-Brown recorded respectively that the pursuer had been trying aggressive

physiotherapy, and that he was reluctant to return to physiotherapy. Professor Court-

Brown recorded that the pursuer needed to return to physiotherapy and that it should be

less aggressive than before.

[58] Records relating to the pursuer’s left shoulder pain dated 28 July 2005 recorded that

the pursuer had a right biceps tendon present, and good power of supination. Mr James

suspected that the author had detected the aponeurosis, rather than a tendon, which was

partially intact.

Page 22 ⇓

[59] Mr James was asked about the pursuer’s other orthopaedic conditions. The pursuer

had left shoulder pain in early June 2005. Mr James would expect it to have caused

problems in reaching overhead. On the basis of the records he described the limitations in

the left shoulder as moderate. The pursuer was last seen in November 2005 in connection

with the injury. Mr James accepted that the left shoulder condition appeared to have

played a role in the pursuer’s overall incapacity. So far as the injury to the left biceps

tendon was concerned, he accepted that the period the pursuer had spent in hospital after

the repair was longer than normal. A record dated 10 October 2006 referred to the

pursuer’s being told to take strength training slowly, although there was no reason why he

should not increase his physiotherapy regime. It was difficult to say what his fitness for

work had been at that time. The pursuer had experienced a spasm in his left bicep on 6

April 2010. The records relating to that indicated that the examining doctor had thought the

pursuer might have had a re-rupture of the tendon. The pursuer had suffered local trauma

to the area in August 2016. There was an increased risk of further injury to the left arm, but

it was very small because the pursuer had had a full restoration of power, function and

movement in supination and flexion.

[60] In March 2007 the pursuer had a fracture of a lumbar disc. He spent a week in

hospital but did not require orthopaedic follow up. Mr James would have expected him to

be up and about and able to do most active things after a week or two. He was not sure

when a patient with this injury would be back “on the tools”. The pursuer referred

himself to accident and emergency on 21 May 2007. It was suspected that he had capsulitis

of the right shoulder. In October 2007 Ms McBirnie diagnosed a rotator cuff tendinosis of

the right shoulder. She noted pain for the previous 8-10 weeks keeping the pursuer awake,

and difficulty elevating the arm. A record dated 25 April 2008 narrated that the pursuer’s

Page 23 ⇓

right shoulder had not settled with conservative treatment. He underwent arthroscopy and

decompression on 1 September 2008. Mr James accepted that the pursuer had had ongoing

problems that meant that surgery was appropriate. A record dated 28 October 2008

recorded that Ms McBirnie was delighted with the pursuer’s rapid improvement after

surgery, and that she was discharging him. Mr James said that the pursuer would have

suffered restriction on working overhead because of the condition of his right shoulder. He

was asked whether, for example, the pursuer would have been able to work with shower

panels taller than himself. He responded that there would have been difficulty with any

activity where the shoulder was under load and the arm was at more than 90-100 degrees.

[61] A record dated 17 June 2010, six months after the repair to the right biceps tendon

related that the pursuer had full movement in his right arm, excellent power and no pain.

This was not consistent with the account the pursuer gave to Mr James. A letter dated 7

January 2011 referred to 5/5 power in supination. That was inconsistent with Mr James’s

findings. A letter from Mr Reid dated 18 October 2012 suggested that the pursuer had a

neuroma from a lateral cutaneous nerve division which Mr Reid thought that the pursuer

had sustained “at his initial procedure”.

[62] Counsel asked Mr James whether he could assess whether the pursuer’s complaints

were justifiable, in terms of the physical condition of his arm, if one left out of account that

he had a pain syndrome. Mr James responded that it was difficult to leave pain out of

account, because it limited the range of movement. The anatomy of the bone had not

changed, but the condition of the soft tissues had prevented reconstruction in a way that

resulted in normal function. The repair by Mr Reid had been remarkably good, but it had

not restored the strength of supination, which was the primary action of the tendon, or the

power of flexion to the brachialis, the adjacent muscle. If one “subtracted” the pain, one

Page 24 ⇓

was left with someone with a weakened arm. The muscles might work, but their powers of

endurance would be very much reduced.

Mr Peter Davies

[63] Mr Davies is an employment and vocational rehabilitation consultant.

[64] He gave evidence that although the Equality Act 2010 provided protections for

people with disabilities, it remained the case that they faced difficulty and discrimination at

the stage of recruitment. The vast majority of Scottish businesses employed fewer than

20 people, and it was difficult for them “carry” people with disabilities and to make

adjustments. Public sector organisations and larger employers could provide more

flexibility, including part-time working and job sharing.

[65] The pursuer’s employment history before 2003 was not unusual for a plumber.

Plumbers often worked for other people to gain training and experience before starting their

own businesses. He had obtained his advanced certificate, which not all plumbers did, and

that demonstrated that he was keen to progress.

[66] When interviewing the pursuer he had observed that his speech was pressured. He

appeared anxious, agitated and upset about how long it was taking to resolve the dispute

with the defenders. He perceived that the pursuer “was in a bit of difficulty”, and observed

that it would be for a psychologist to say whether he had a treatable psychological

condition.

[67] The pursuer had told him that he could not use his arm and hand properly, and that

would be bound to have an effect on what he did on a day to day basis. It affected the

amount and type of work he was able to do. He had difficulty with his bimanual dexterity,

and could not use his hands equally well over protracted periods. Although he could

Page 25 ⇓

operate a computer mouse with his right hand, after a while his hand became sore and tired.

Adaptations were available, but they tended not to be as successful as one might wish.

[68] When asked to provide a view as to whether there was a realistic prospect of the

pursuer obtaining and doing some kind of paid work, he said that people obtained jobs on

the basis of what they could do, not on the basis of what they could not do. That was the

starting point, and the pursuer’s training and career had been based largely on what he

could do physically. If one could not work with “brawn”, Mr Davies said, one would try to

work with one’s brain. That normally involved working with a computer. It had not been

unreasonable for the pursuer to move from being “on the tools” to undertaking bathroom

design, but that involved using computer assisted design, and that had presented a problem

for him. The effect of that was to narrow the options as to the employment open to him.

Mr Davies had thought about what he might retrain to do, and it was difficult to see what

that might be. His whole career had been based on providing plumbing and heating

services. Those represented his core knowledge and skills. There might be options open to

him to do “permitted work” as an adviser in a store like B&Q. Mr Davies explained that it

was open to people obtaining certain state benefits to do a limited amount of hours per week

of work up to a set level of earnings while still retaining their benefits. He would have to

find work of that type for himself. He was on heavy medication, which might affect what he

could do. Mr Davies’ view was that the pursuer might be able to work for five mornings a

week, which would equate to the permitted hours and which would have the benefit of

allowing the pursuer to get some structure into his life.

[69] Mr Davies had looked at the salaries that could be expected for a range of

employments which would have been open to the pursuer on the basis of his knowledge

and skills, if he were physically able to do them. He had looked at the salaries for bathroom

Page 26 ⇓

sales designers, sales managers and showroom managers in the Edinburgh area in July 2018.

These ranged from £21,500 to £30,000 gross with an average net figure of £23,170. Someone

in a job of that sort would have to be able to use a computer. Before the accident the pursuer

had been earning considerably more than employed plumbers. His gross declared income

was £55,000, whereas the median and mean gross figures for employed plumbers at the time

were £21,746 and £23,644.

[70] Employed plumbers in 2018/19 received median net earnings of £24,179, and mean

net earnings of £25,456. If the pursuer had decided or needed to take a job as a hands-on

plumber, Mr Davies would have expected him to earn at the mean or average level. That

would have been a fall-back position available to the pursuer had he been fit to work as a

plumber. That represented a reasonably conservative view, in his opinion. The upper

quartile figure was £28,467, which included higher-earning outliers. He had provided an

alternative benchmark by looking at the earnings of managers and proprietors in other

services between 2003/4 and 2018/9. The median and mean net figures in 2018/9 were,

respectively, £25,773 and £30,965. In the immediate aftermath of the recession the figures for

managers and proprietors had increased (in years 2009/10-2012/13) before falling back,

which might reflect that householders had invested in home improvements rather than

seeking to move house during that period. Given the level at which the pursuer had

previously earned when running his own business, Mr Davies would have expected him to

earn at the upper quartile rate shown in table 7.5 of the vocational report. To work in a

managerial or even a sales capacity in home improvements now would present a problem

because it would involve using computer aided design.

[71] Mr Davies had also gone on to extrapolate earnings growth, for the period from

2004/5 to date from a gross earnings figure of £45,000 per year, using current call-out and

Page 27 ⇓

hourly charges for plumbers in the Edinburgh area. He had also produced a figure

extrapolating from pre-accident earnings, but using the median increase in earnings for

managers and proprietors in other services.

Dr Andrew Harrison

[72] Dr Harrison is a consultant clinical neuropsychologist. Dr Harrison’s evidence was

that the pursuer’s psychological difficulties should be considered as resulting from his

physical injury and the long terms effects of that injury on his social, domestic, recreational

and vocational functioning. The pursuer had clinically significant levels of anxiety and

depression. He presented as angry and resentful and reported history of problems with

sleep disturbance, fatigue, memory and concentration.

[73] Counsel asked Dr Harrison whether it was possible to tease apart the influence that

the pursuer’s different conditions had had on his psychological state. He replied that they

overlapped and interacted, but it seemed that the primary problem was with the pursuer’s

arm. It was his dominant arm. It had affected his ability to work in the profession in which

he was trained and experienced. He had had persistent problems with pain and function. It

therefore seemed to Dr Harrison to be the primary causative factor. The treatment for which

there was the best established basis in evidence was cognitive behavioural therapy. It was

designed to deal with maladaptive patterns of thought. It looked to address symptoms of

depression. The pursuer also regarded himself as a failure and blamed himself for his

difficulties. The pursuer perceived the idea of having psychological difficulties as a

weakness. He would need up to twenty sessions of CBT. His psychological presentation on

its own would not preclude a return to employment. The issue was the combination of

psychological and physical difficulties. The persisting reported problem with pain and

Page 28 ⇓

function fed into the pursuer’s psychological condition. Dr Harrison predicted that there

would be improvement with psychological therapy, but that the pursuer would remain at

risk of fluctuations in his psychological condition because of his persisting physical

problems and problems with pain.

[74] Cross examination of Dr Harrison was directed to his state of knowledge regarding

the pursuer’s various conditions, and in particular his gastrointestinal complaints. When

Dr Harrison first reported, he had not had access to the pursuer’s general practitioner

records. He accepted that the pursuer’s gastrointestinal condition was an important matter.

The pursuer had, however, been reporting to him problems which the pursuer described as

“stemming from” his problem with upper limb function and the impact that had had on his

ability to work.

Defenders

Mr Peter Wade

[75] Mr Peter Wade is aged 71 years. He became a consultant surgeon in 1987. He

stopped working in the NHS in early 2019, although he last carried out surgery in December

2018. His area of specialism was hand and upper limb surgery, although he also carried out

hip and knee surgery until about 2014. He examined the pursuer in April 2017. He had

noted that the pursuer was able to remove his pullover without difficulty. That had

indicated less of a problem with the pursuer’s elbow than Mr Wade had expected. The

pursuer’s right shoulder muscle was not wasted, suggesting that the shoulder had been

used normally. The range of movement in the right shoulder was restricted by comparison

with the left. Mr Wade said that the pursuer had pain in the shoulder when he moved it,

particularly in abduction. The pursuer had lost extension of 20 degrees in his elbow. He

Page 29 ⇓

was very tender above his biceps. He had limitation of supination and pronation. Pain

was the limiting factor. The pain appeared to be in the soft tissues. The elbow could be

extended passively (that is by Mr Wade rather than by the pursuer) but not full, again

because of pain. There was pain and hypersensitivity on the radial nerve on the back of the

pursuer’s hand. His wrist and the back of his hand were affected. Dr Wade found that

strange, as the pursuer did not have a hand injury. The pursuer’s grip was about four-fifths

of normal. Mr Wade could not account for that, because there was no objective reason why

grip strength should be reduced. Looking at the loss of motion, loss of sensation and loss

of muscle strength, Mr Wade had assessed that the pursuer had a permanent impairment in

his right upper limb of 29% as compared with the left. He accepted that the pursuer would

find heavy or prolonged use of the right upper limb to cause pain or discomfort. The loss

of movement in the pursuer’s right shoulder would make some plumbing work difficult.

He had been surprised that the pursuer had offered to shake hands with his left hand rather

than his right. That was unusual.

[76] Much of the fairly concise cross-examination of Mr Wade was in relation to his

understanding of the pursuer’s employment history. I did not find it of assistance in

assessing Mr Wade’s evidence. Mr Wade accepted that the pursuer had more extensive

scarring on his right arm than on his left.

What would have happened absent the admitted negligence?

[77] In their written submission provided at the end of the proof, the defenders accepted

that had surgical repair been undertaken shortly after 3 September 2003 it would probably

have been successful in restoring most, if not full, function, and that the pursuer would have

been pain free. That was in any event my own conclusion on the evidence. Given the

Page 30 ⇓

position of the defenders I can express my reasons briefly. That was the evidence of Drs

James and Wade. The pursuer suffered an unrelated but identical injury to his left arm,

which was promptly diagnosed and treated. His own evidence was that he made an

excellent recovery from that injury, and had recovered fully within six months. In this case,

therefore, there is, unusually, the opportunity to compare outcomes in relation to the same

injury, in the same individual, one treated promptly, and the other not. I am satisfied on the

balance of probabilities, that had surgical repair of the pursuer’s right distal biceps tendon

rupture been undertaken within a few days of 3 September 2003, the result would have been

a full or nearly full recovery of function in the right arm such as to permit the pursuer to

return to work within six months.

What are the consequences, physical and psychological, of the admitted negligence?

Condition of the pursuer’s right arm, and psychological condition

[78] I am satisfied that the pursuer has suffered the consequences detailed by Mr James in

his evidence as I have narrated it above, particularly at paragraphs 49 to 53.

[79] Mr James and Mr Wade agreed that there was iatrogenic division of the lateral

cutaneous nerve in the pursuer’s forearm during the operation in June 2004, evidenced by

the findings of Mr Reid during the operation on 16 November 2009. The nerve division has

resulted in pain in the right forearm and numbness along the radial border of the forearm.

The pursuer’s recovery from the operation in June 2004 was poor, with continuing pain and

loss of function in the right elbow, with loss of amenity in all aspects of his domestic,

recreational and occupational life. They agreed that there was some improvement in the

pain and condition of the right elbow following the surgery in 2009, but that the pursuer had

not been able to return fully to the activities in which he had engaged before the injury in

Page 31 ⇓

2003. They agreed that the pursuer suffered from ongoing disabling right elbow and

forearm pain which was in part due to the iatrogenic division of the lateral cutaneous nerve

of the forearm and also due to a chronic pain syndrome.

[80] The pursuer should have been operated on in 2003. Had that happened, the

operations in 2004 and 2009 would not have taken place. Although only one of them is an

“extra” operation, one of them is the procedure during which he suffered a nerve division.

[81] Although Mr James’ and Mr Wade’s findings differed as to the extent of limitation of

supination and pronation, they were agreed that there was a limitation in supination and

pronation by reason of pain. They agreed that there was a limitation in flexion and

extension of about 20 degrees. Both elicited restriction of movement in the right shoulder.

Mr Wade felt that the pursuer’s hand and wrist function was probably not as badly affected

as the pursuer had demonstrated to him, and was a little concerned by the pursuer’s offer to

shake hands with his left hand. They were agreed that the pursuer had significant

limitation in function in the right elbow, mainly because of pain on extension and rotation.

Mr Wade found it difficult to be precise because of loss of pain and function in the right

shoulder.

[82] Mr James has had the opportunity to examine the pursuer twice, and has had the

opportunity to observe any differences in the pursuer’s presentation on the two occasions,

unlike Mr Wade, who saw him only once. Where there is a difference I prefer the evidence

of Mr James in relation to the clinical findings. The differences between their findings and

opinions are in any event not particularly material.

[83] I am satisfied also that the pursuer has clinically significant anxiety and depression

of which the principal cause is the circumstance that he has not regained function in his

right upper limb, with the associated and prolonged pain and discomfort, and inability to

Page 32 ⇓

pursue his career in the way that he otherwise would have done. I accept that the

pursuer’s symptoms will improve to some extent if he undertakes the CBT treatment

described by Dr Harrison.

The pursuer’s gastro-intestinal tract condition

[84] I am not satisfied that the pursuer’s protracted gastro-intestinal (“GI”) illness from

about 2012 was caused or materially contributed to by the admitted negligence, for the

following reasons.

[85] The pursuer had a prolonged period of ill-health from about 2012 as a result of the

worsening of a pre-existing gastric condition, namely acid reflux. He had an operation for it

in August 2012. He made a very poor recovery from that operation, and had a further

operation in October 2013. His own evidence is that his GI problems began to resolve only

when, with the assistance and support of his current general practitioner, he began to reduce

his use of opioid medication. It is not disputed that the difficulties that he experienced

following the operation in August 2012 were caused by his chronic use of opioid medication.

The pursuer’s case is that his chronic use of opioid medication arose because of the ongoing

pain in his right arm, which he experienced as a result of the negligence in respect of which

liability is admitted. The pursuer had previously made a case that he required GI surgery

because of weight gain caused by his reduced activity resulting from the defenders’

negligence, but that line was not pursued at proof.

[86] It is a matter of agreement in terms of the joint minute that he became aware of

suffering heartburn in 1989 when he was 17 years old. For the following fifteen years he

used proton pump inhibitors, which are strong acid blocking drugs used to treat acid reflux.

After the accident he had a hospital admission and a number of out-patient attendances in

Page 33 ⇓

connection with acid reflux, and related oesophagitis in 2004, 2005 and 2006. These, again,

are detailed in the joint minute, and I do not set them out in full here. Anti-reflux surgery

was discussed in 2008. He underwent oesophagitis/laparoscopic anterior fundoplication

surgery on 20 August 2012, and was discharged from hospital on 24 August 2012. He was

readmitted to hospital on eight occasions with various gastric complaints between then and

the end of May 2013. He attended clinic twice during that time. He had a further operation

on 14 October 2013. He had numerous admissions and attendances in relation to continuing

gastric pain in the period between then and February 2017. Of note are that in June 2014 he

underwent the laparoscopic insertion of a feeding jejunostomy. The feeding jejunostomy

tube was removed on 4 December 2014. In March 2015 the pursuer also underwent a hernia

repair operation.

[87] The only witness who gave evidence in relation to this matter was Mr Manson, a

consultant surgeon, and a specialist in upper gastro-intestinal surgery. I can narrate his

evidence briefly for the following reasons. The conclusion of the GI surgeon, Mr Fullarton,

who had prepared a report for the defenders, was put to him. That conclusion, in a report

dated 12 May 2017, was that the pursuer most likely suffered from chronic GI dysfunction

related to his chronic opioid usage. There were strong clinical pointers to an ongoing

diagnosis of narcotic bowel syndrome. Mr Manson was not familiar with the diagnostic

label “narcotic bowel syndrome”, but otherwise agreed with those conclusions. It was well-

known that opioid analgesics caused a decrease in GI motility, and distension and

constipation.

[88] Mr Manson’s view was that the pursuer’s reaction to the operation 2012 was a very

unusual one. He had never encountered a reaction like it in his practice. He had consulted a

number of colleagues, and learned that they also, had never encountered anything like it.

Page 34 ⇓

He explained that after the operation in 2012, the pursuer immediately had severe post-

operative pain, requiring patient administered morphine. Mr Manson’s explanation for this

was that the pursuer had already developed a significant tolerance to analgesia. Following

the operation, the pursuer was prescribed a good deal of opioid medication. It is not

disputed that this caused him to have very significant GI problems.

[89] What is disputed is the causal link between the ongoing pain in the right arm, prior

to 2012, and the poor recovery from surgery and ongoing GI problems that the pursuer had.

What is at the heart of this aspect of the dispute is whether there was a proper factual basis

for Mr Manson’s conclusion that the pursuer already had a significant tolerance to opioid

analgesia by the time of the operation in August 2012. The defenders submitted that there

was an absence of evidence of significant opioid use before August 2012; that where such

medicine was prescribed before August 2012 it related largely to conditions unrelated to the

pursuer’s right arm injury; and that the medical records demonstrated that the provision to

the pursuer of significant quantities of opioid analgesia began only after the operation

in August 2012.

[90] Mr Manson had seen a letter dated 23 July 2018 from Dr Sheridan of Tranent Medical

Practice that bore to be a report on the prescriptions that the pursuer had had for pain relief

since July 2003. It contained an entry in the following terms:

“Tramadol 50mg capsules, one capsule four times a day when required from

25/01/10 – 27/8/14”

[91] The letter was not spoken to in evidence by its author. There has been no

explanation as to whether the author intended a reference to a continuous course of

medication during that period, or that prescriptions for tramadol were issued on occasions

during that period. As I explain more fully below, the medical records do not support the

Page 35 ⇓

proposition that tramadol was prescribed continuously during that period, and in particular

between 25 January 2012 and August 2012.

[92] There was, with various witnesses, and most significantly Dr Joanna Smail,

examination of the medical records so far as containing reference to opioid medication. The

relevant entries record the following. The first entry referring to opioid medication relates

to 19 March 2007. On 19 March 2007 the pursuer was issued with a prescription for

dihydrocodeine tartarate (56 tablets, 30mg) by his general practitioner. The use of the figure

“0” and the absence of subsequent prescriptions sequentially numbered in the records

indicated that this was a “one-off” prescription, and had not become a repeat prescription.

The pursuer had injured his lower back. He initially contacted the out of hours service at

0722h. The record for his contact with them records that he was “advised to take

paracetamol and dihydrocodeine”. There is then a record of his own general practitioner’s

having made a home visit. The record includes the following:

“Taken dihydrocodeine this a.m. – no effect. Discussed analgesia – try

dihydrocodeine qds [four times daily] (already uses this for his arm) pcm qds and

tentatively try voltarol as well.”

Dr Smail did not know what the abbreviation “pcm” meant. I consider that it is likely to be

a mistranscription of “prn”, which means “as needed”.

[93] Later the same day, the pursuer attended the accident and emergency department at

Edinburgh Royal Infirmary, again in relation to his back injury, and was admitted to

hospital. The clinical notes record his drug history only as “omeprazole”, which is a

medication for GI problems. The discharge letter does not specify any continuing analgesic,

although it does refer to difficulties managing the pursuer’s pain during his admission. A

discharge letter would normally include medication that the patient was being sent home

with, or which the general practitioner was to prescribe.

Page 36 ⇓

[94] The next record of a prescription for opioid medication is for 100 co-codamol

30mg/500mg on 5 June 2007, 2 tablets to be taken four times a day, as needed. Again, the

form of the record indicated that this was a one-off prescription rather than a repeat

prescription. There is a record of the pursuer’s attendance at the practice that day which

reads:

“Seen in GP’s surgery wants re referred to GI [gastro-intestinal] – letter dictated.

Long discussion re delayed repair R biceps and pains in R arm and shoulder no

refcent [sic] injury o/e crepitus R shoulder full flexion estension [sic] to 150 deg only

at elbow limited rom [range of movement] shouldrer [sic] imp capsulitis says has RIE

physio apt 3 weeks discussed options for analgesia to continue with DHC

[dihydrocodeine] add cocodamol.”

[95] A record of a referral of the pursuer for a second opinion about his right arm and

shoulder dated 7 June 2007 records his recent medication by reference to the prescriptions

provided on 19 March and 5 June 2007, and do not include any other reference to opioid

medication. Dr Smail confirmed that those references would have been generated by the

practice computer system. She gave evidence, which I accept, that it is highly unlikely that

medication was prescribed by Tranent Medical Practice but not recorded in the general

practitioner records.

[96] The next relevant record of a prescription was for tramadol on 25 January 2010. The

figure “1” appears next to it, which would normally indicate it was a second prescription,

but there is no earlier record of a prescription of tramadol. The record includes “prn”,

which means, as needed. Dr Smail explained that this would indicate medication not to be

taken regularly, but as needed, for severe or moderate pain. The records do not disclose

why it was prescribed. There is a record of attendance that day, but it says “For statin.

Cholesterol and LFts and gamma GT in a month”. That is the only prescription of tramadol

recorded between 2010 and September 2012.

Page 37 ⇓

[97] When the pursuer attended hospital on 1 February 2010, the records indicate that he

was at the time taking tramadol, but that this was not helping his pain. That is, however,

shortly after 25 January 2010, when tramadol had been prescribed. He is again recorded, in

relation to hospital attendances on 1 February 2010, 17 March 2010, 6 April 2010, and 2 June

2010 as taking tramadol. The attendance on 1 February was in relation to right forearm pain.

That on 17 March 2010 was for review at the lipid clinic. On 6 April 2010 he attended with

pain in his left arm, and on 2 June 2010 with pain in his thigh, the area from which tissue

was harvested to repair his right biceps tendon. There are references to tramadol and co-

codamol in an out of hours record dated 21 June 2010, relating to a painful lump on the

pursuer’s head. There is a further reference to co-codamol in an out of hours record dated

25 July 2010 which relates to abdominal pain and diarrhoea.

[98] The only records, other than those already mentioned between November 2003

and October 2010, referring to right upper limb pain were entries made by administrative

staff, and did not relate to any encounters between the pursuer and a general practitioner.

[99] On 24 May 2012 the pursuer was prescribed codydramol 10mg/500mg, 100 tablets, to

be taken one or two tablets four times daily. That was the lowest strength available of that

medication. The clinical note for that date records “Pain. Still having a bit of post-op pain.

Is well.” The pursuer had had a laparoscopic cholecystectomy on 3 April 2012.

[100] The records relating to the pre-operative assessment that took place before the

pursuer’s fundoplication surgery of 20 August 2012 record that he was receiving various

medications for his gastro intestinal complaints, and a statin. It records also that he was

receiving 60mg of dihydrocodeine to be taken at night. That is a different medication from

the codydramol that he was prescribed in May 2012. There is no record in the GP records of

a prescription of dihydrocodeine between May and August 2012. Dr Smail explained that

Page 38 ⇓

the preoperative assessment would include any over-the-counter medication. I did not

understand her to be confirming that 60mg dihydrocodeine could be bought over the

counter. There is no mention of tramadol in the pre-operative assessment.

[101] After 20 August 2012 the general practitioner records contain more frequent

prescriptions of tramadol and dihydrocodeine. Morphine sulphate was prescribed on 2 May

2013.

[102] The final tranche of medical records produced runs from June 2013 to April 2017. No

later general practitioner records were produced. The section recording prescriptions is

fairly extensive. It includes repeated prescriptions for tramadol, dihydrocodeine, morphine

sulphate, fentanyl, and oxycodone, which are all opioid drugs.

[103] So far as provision of medication by clinicians other than the pursuer ‘s general

practitioner is concerned, the records disclose only short term prescriptions for opioid

analgesic. So, for example, prescriptions for dihydrocodeine and tramadol following his

right shoulder arthroscopy in September 2008 were for 5 days’ supply only.

[104] The entries for 19 March 2007 (relating to the pursuer’s back injury) indicate that the

pursuer appears to have had dihydrocodeine in his possession before it was prescribed on

19 March 2007, although there is no earlier record of its being prescribed. Although there

was no further prescription of it after that date, there is a reference to the pursuer being

advised to continue using it on 5 June 2007. I infer that the pursuer was not taking it

continuously, and that he still had medication left from the prescription of 19 March 2007. If

he had been using it continuously, it would have been finished.

[105] In summary, the only records so far as GP prescribing before August 2012 is

concerned, are of occasional prescriptions of opioid medication for short term use. A

number are for conditions other than right arm pain. There are also records of short term

Page 39 ⇓

provision of opioid medication following hospital appointments and admissions. Again,

these do not relate to the pursuer’s right arm pain. There are entries which tend to show

that the pursuer had opioid medication available to him at various times which are not

proximate to dates on which the records show he had been provided or prescribed opioid

medication.

[106] The records also show that the prescription of opioid analgesia became frequent and

routine after August 2012.

[107] I accept that the pursuer suffered as he did after August 2012 at least in part because

his GI function became severely compromised by his use of opioid medication. I am not

satisfied on the balance of probabilities that that occurred because of use of opioid

medication caused or materially contributed to by the pain he suffered as a result of the

defenders’ negligence. Dr Manson’s opinion was predicated on the proposition that the

pursuer had already developed a tolerance to opioid analgesia by the time of the

fundoplication operation. That proposition is not supported by the evidence. The

prescription of opioid medication after August 2012 is much more frequent and extensive

than it was before that date. Before that date there are occasional prescriptions only. The

medical records do not support the proposition that the pursuer used opioid medication

continuously, frequently, or heavily before August 2012. The pursuer was not asked about

his use of opioid medication before August 2012, and whether he was taking any opioid

medication at that time other than the types and quantities shown as having been prescribed

in the general practitioner records. The only source of evidence I have about the provision

of opioid medication to the pursuer before August 2012 is the evidence contained in the

medical records. The pursuer has not discharged the onus on him to prove a causal

connection between his GI condition and the defenders’ negligence. I am unable to make

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any finding as to precisely how much opioid medication he used before 2012. The most I

can say is that there were occasional prescriptions of opioid medication. In any event, I

have no evidence as to what level of use would result in the tolerance that Mr Manson

inferred had developed.

[108] Counsel for the pursuer submitted that the evidence of Dr Smail about the content of

the medical records was of no value. The defenders’ counsel had not put to the pursuer in

cross that he had not taken “chronic” doses of opioid medication, or that he had taken opioid

medication for reasons other than his arm pain. I reject this submission. The burden of

proof lies on the pursuer to establish a causal connection between the negligence of the

defenders and conditions for which he claims damages. It was for the pursuer to provide

evidence of a connection. He did not give any oral evidence as to his consumption of opioid

medication. There was no mention of it in the statement that formed part of his evidence in

chief. The pursuer is the obvious source of evidence as to what medication he took, when,

and for what.

Financial loss

[109] There are differences between the pursuer and the defenders as to every aspect of the

claims for financial loss. I therefore consider in turn what income the pursuer has had since

2003, what income he might have expected to obtain between then and now were it not for

the admitted negligence, and then to consider on what basis the question of future loss

should be approached.

Past income

[110] The pursuer submitted that I should proceed on the basis that he had

received £295,361 by way of past income. He submitted that tax returns during the relevant

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period disclosed income of £295,532. I should discount the figure for 2013/4 for the reasons

more fully discussed below, and I should add back in a similar figure to take account of the

circumstance that there was a dispute as to the true level of income for two of the tax years

concerned. I note that that figure provided by the pursuer in his submissions exceeded that

contended for by the defenders (£287,195). It exceeded the figure that I reached myself by

means of calculations based on the (gross) figures at paragraph 31(e)-(n) of the joint minute

(which covers the period from 2003/4 to 2013/14) and the tax returns for years 2014/15-

2016/17.

[111] My own calculations of net income so far as based on the tax returns in years 2003/4 –

2006/7, 2009/10 – 2012/3 and 2014/5 – 2016/17 were consistent with those produced by the

defenders in their written submissions at paragraph 7. I accept that the figures used by the

defenders for those years are correct. They produce a figure of £95,002.

[112] Tax years 2007/8, 2008/9 and 2013/14 raise points of controversy.

[113] In relation to years 2007/8 and 2008/9 HMRC issued Closure Notices. Those notices

have not been withdrawn. The pursuer did not agree that they were accurate. By the

defenders’ calculations, the assessed net earnings in accordance with the Closure Notices

were £47,243 for 2007/8 and £36,372 for 2008/9. The gross figures declared in the tax returns

were, respectively, £24,055 and £16,528. The gross assessed figures were,

respectively, £63,313 and £42,504.01. The defenders submitted that I should take the

assessed rather than the declared figures as representing accurately the pursuer’s income.

[114] The pursuer submitted that I should take a broad approach and add into the

calculation one half of HMRC’s assessment of the pursuer’s “additional income”. That sum

amounted to £27,407.10. I understood it to be a net figure derived from the difference

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between the declared and assessed income figures for each of those two years. The total

gross difference over the two years combined amounted to about £65,231.

[115] The legal effect of those notices, so far as liability for tax is concerned, is to amend the

pursuer’s tax return in accordance with the notices. The pursuer suggested in his evidence

that there was still some possibility that the notices might come to be challenged

successfully, but also said that shortly after he had received interim damages, he had been

contacted by HMRC, and that he had had to enter into a DAS (which I understood to be a

debt arrangement scheme) with HMRC. The defenders submitted that that suggested an

acceptance on his part that the tax assessed was due.

[116] The pursuer had attempted to appeal to the First-tier Tribunal Tax Chamber, but had

done so out of time, and the tribunal had declined to allow the appeal to be admitted late.

The decision of the tribunal includes a narration of some of the issues raised by HMRC

relative to the assessment, including the pursuer’s ability to obtain substantial lending in the

absence of declared income to support it. The pursuer refers to that circumstance in his

statement. He acknowledges a disparity between his declared income and what he had

represented when applying for a loan. His explanation is that, at the relevant time, banks

were relatively liberal in allowing self-employed people to “self-assess” their income when

applying for lending. He was providing the bank with an honest representation as to his

earning potential, given that he had been assured by medical staff that he should expect to

recover.

[117] I am not bound to accept that the Closure Notices reflect the true level of the

pursuer’s income. They are, however, relevant evidence which I am entitled to take into

account in assessing the true level of his income. Prima facie, they are evidence as to his

income, compiled by HMRC after investigation. The pursuer himself acknowledges a

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disparity which seems to have concerned HMRC. Although he asserted that matters were

being reconsidered by HMRC, he provided no vouching as to that matter. Taking these

matters into account I am satisfied that I should accept the figures derived by the defenders

from the HMRC assessments as reflecting the pursuer’s income.

[118] Tax year 2013/14 was controversial in that the pursuer maintained that the sum

mentioned there was a gift from his father and was not income. In his statement, which he

adopted, he said that “it was advanced to [him] as a “salary” via the company by my dad’s

personal money”. His father had, for whatever reason, chosen to advance the money in that

way rather than simply writing him a cheque.

[119] So far as year 2013/14 is concerned, the pursuer recorded in his tax return pay from

employment with EKB Ltd in the sum of £32,110, and that the tax deducted was £4,532. The

pursuer is responsible for the tax return submitted in his name. There was no adequate

explanation as to why this sum should have been represented in the tax return to be income,

if it was in fact a gift. The pursuer accepted that it was paid as salary. His own oral

evidence was to the effect that he was providing his father with assistance in relation to

building projects. I have accepted that it represents an accurate statement of the pursuer’s

income in 2013/4, and that his net income for the year concerned was £27,578. I accept the

pursuer’s evidence about this item of income to the extent that I accept that it was generous

remuneration having regard to the extent to which he was actually able to be involved in the

project in question, and was deliberately generous, having regard to his health difficulties. I

accept that his father paid it intending to provide him with assistance in the form of

remuneration that was, in the circumstances quite generous, and in a context in which the

pursuer was experiencing health difficulties. It was, however, a payment for services

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provided. I do not regard it as providing a realistic gauge as to his earning capacity in the

wider markets for employment or self-employment.

[120] In relation to past receipts, there was a further matter of controversy. The defenders

submitted that the sum that the pursuer received in the extra-judicial settlement with RSA

should be taken into account. It represented loss of earnings over a future period. The sum

derived by the defenders from the tax returns and the Closure Notices was £206,195, and

adding the compensation from RSA produced an overall figure of £287,195. I do not accept

that the compensation from RSA should be treated in this way. The pursuer’s evidence was

that the liquidator of North East assigned the claim to him and his father. The payment was

the result of a claim on behalf of the company, North East. I do not know what the claim

was for. It is probably reasonable to infer that it related to loss sustained by North East as a

result of breach of contract, but I do not know whether those related to losses already

sustained by the business or future loss of profit. I note that the pursuer’s unchallenged

evidence was that he and others had injected funds to ease cash flow before the demise of

the business, and that the business’s profitability was adversely affected by RSA’s conduct.

I am not satisfied that the settlement falls to be treated as compensation for loss of earnings

so far as the pursuer is concerned. I have left it out of account.

[121] I therefore proceed on the basis that the pursuer’s receipts total £206,195.

What would the pursuer have earned, absent the negligence?

[122] The pursuer submitted that I should take as a starting point his net income in 2003/4

from North East, which was £39,943. North East would have had “the opportunity of

survival” but for the defenders’ negligence. He could have laid off plumbers and covered

the work himself. The pursuer was a hard worker who would have taken extraordinary

Page 45 ⇓

steps to save the company. There were no suppliers of goods who were creditors of the

company, so neither the company nor the pursuer personally would have had to contend

with the reputational damage associated with leaving suppliers unpaid. The pursuer could

have set up another company, or could in the last resort have earned a significant income as

a “man with a van” plumber.

[123] The pursuer’s income would have increased. The pursuer submitted that Mr Davies’

starting point was too low because he had taken income from 2002/3 as the starting point.

On Mr Davies’ figures, annual gross income would have increased from £45,526 to £103,040.

The pursuer derived from this a “rate of increase over time” of 44.2%. The starting figure

of £45,526 is 44.2% of the end figure of £103,040. The pursuer submitted that 22.1% should

be used as an average increase over the whole period in order to derive a yearly multiplier

for past loss. Using this approach, the pursuer derived a multiplier of £48,770, to which he

applied a multiplier of 15.5, producing a figure of £755,941.

[124] The pursuer accepted that some deduction would need to be made for the injury to

the left arm, and to account for non-negligent treatment of the right arm, and contended for

a figure of £700,000. The shoulder conditions were of little, if any, relevance. The only

restriction would be in working above head height. The pursuer was someone who pushed

himself to try to work, and an injury to the shoulder was unlikely to have stopped him from

working.

[125] The defender submitted that the pursuer had not established that he had suffered

any loss of income. Any business the pursuer started would have been subject to risks of the

sort the businesses he actually operated had experienced. It would have been affected

adversely by the pursuer’s other orthopaedic conditions, and he would have been unable to

work in any event between 2012 and 2018 because of his GI condition. The pursuer had not

Page 46 ⇓

led evidence to support the contention that he would have earned any more than he did,

had the negligence not occurred.

[126] The pursuer submitted, under reference to Van Wees v Karkour [2007] EWHC 165

(QB) that I should be slow to approach the question of loss of income on a broad basis rather

than applying the “conventional” approach of selecting a multiplicand and applying a

multiplier. I find myself in a position similar to that in which Langstaff J found himself in

that case: paragraph 134. I cannot identify an annual figure about which there is relative

certainty. I have, however, sought to come to a broad assessment of earnings loss in a

similar way to that used by Langstaff J. There are many possibilities and uncertainties as to

what the pursuer might have earned.

[127] The relatively high earnings in years 2002/3 and 2003/4 are significantly above the

level of earnings in the preceding years. The pursuer’s own account of those years is of

mixed fortunes trading on his own account and in business with his father. North East went

into liquidation for reasons unconnected with the pursuer’s right arm. Those are the reasons

recorded in the report to the meeting of creditors. I do not accept that the business failed

because of the pursuer’s difficulties with his right arm. In any event, even had the pursuer

been treated appropriately in September 2003, he would have required a recovery period of

about six months. The order to wind up North East was made on 5 March 2004, which is

roughly when he would have become fit for work with non-negligent treatment. In

subsequent years the pursuer was involved in a number of different businesses and projects.

[128] I accept the pursuer’s evidence that it would have been his intention, in the aftermath

of the demise of North East to start working again, on a small scale at least initially, as a

plumber. Both before and after 2003 the pursuer saw a number of businesses and projects

fail because of difficulties with clients. His own evidence was that he would have worked

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on his own account on a small scale. I accept that the pursuer is a well-motivated individual

with a history of having worked hard, and of having engaged in entrepreneurial activity.

His history is of having been involved in setting up various limited companies, both before

and after 2003, which ceased to operate when trading conditions became unfavourable for a

variety of reasons. I consider that it is likely that he would, if fit for work, at some points

have expanded his business, but recognise that if he had done so, he would have been

subject to the normal range of difficulties that businesses may experience – clients not

paying, clients breaching contracts – and that his own businesses did in fact experience. His

self-employed earnings over such a protracted period are more likely than not to have

fluctuated. Against that background I can take only a very broad approach to identifying

his likely earnings between 2003 and the present.

[129] I am not satisfied that I should take the 2003/4 level of earnings as a starting point.

As I have observed, the earnings in 2002/3 and 2003/4 are higher than in preceding years.

They derive from a business which was only marginally profitable and which was unable to

continue trading because of a dispute with its principal client which was the source of 80%

of its turnover.

[130] If the pursuer were to have returned to working on a relatively small scale – himself

and a van—it is uncertain how much money he would have made. Mr Davies attempted to

estimate a figure by taking current hourly rates for local plumbers and applying them to a 40

hour week and a 46 week working year. That would produce £103,040 gross. He took the

pursuer’s earnings in 2002/3 as a starting point, and assumed straight line progression in

earnings over the intervening period. By his calculations, that produced a gross figure

of £1,039,962. He assumed that the expenses of the business would have been 20% in each

year, producing a gross profit of £831,970, and a net income figure of £561,534.

Page 48 ⇓

[131] I do not accept that figure. The starting point is unrealistically high. It is unlikely

that, starting a business anew, the pursuer would immediately have achieved earnings

similar to those derived from North East in either 2002/3 or 2003/4. There are a number of

periods in 2005, 2006 and 2007 when the pursuer had unrelated injuries. Had the defenders

not been negligent, the pursuer would have required around 6 months to recover had he

been operated on as he should have been. Allowance must be made for all of these periods

in the calculation of wage loss. Further, the pursuer was significantly unwell with GI

complaints for a protracted period from 2012. His own account was that the situation had

improved only after he changed general practitioner and received help to reduce his intake

of opioid medication. On Dr Smail’s account the change of general practitioner took place

in July or August 2018. I discuss the relevance of these other conditions further below.

[132] What I do accept from Mr Davies’ analysis is this. The pursuer would at all times

have been able to work as an employed plumber if no other option was open to him. I

accept, however, that it is likely that the pursuer, as a self-employed plumber of some

experience by 2003 would have been able to earn more than an employed plumber.

[133] There are significant periods when the pursuer would have been unable to work as a

plumber for reasons unconnected with the defenders’ negligence. I refer to entries in the

medical records as it is a matter of agreement in some instances that they describe the

pursuer’s condition and treatment. I accept that he would have been unable to work as a

plumber for about six months in 2005 because of his left shoulder condition. He injured the

shoulder at the end of May 2005. He attended hospital on 3 June and was admitted. He

was discharged on 7 June. He was referred for an ultrasound scan on 16 June 2005. On 28

July 2005 he was noted to have continual pain around his left shoulder. On 22 August Mr

Oliver wrote to Ms McBirnie that “the pursuer works in the office just doing administrative

Page 49 ⇓

duties because of left shoulder pain”. The letter records that ultrasound had shown a 6-

8mm deep surface supraspinatus tear, and refers to quite debilitating shoulder pain. The

pursuer continued to complain of pain until November 2005. There is a record then of his

experiencing regular night pain for which he was taking Kapake. It was thought at that

time that his symptoms should settle with conservative treatment. It may well be that the

pursuer had forgotten about this injury, given the passage of time and the number of other

conditions from which he has suffered, but it was clearly quite significant and gave rise to a

number of interactions with medical professionals.

[134] The pursuer injured his left biceps tendon at the end of April 2006. He was

attending hospital until October 2006. His own evidence was that he recovered within six

months. I note that, although he was being told to take strength training slowly at that

stage, he was also being told that he could increase physiotherapy. That suggests an

incomplete, albeit encouraging, level of recovery at that stage. I have proceeded on the

basis of a period of six months’ absence from work. I note that the pursuer had episodes of

pain in his left arm in April 2010 and August 2016, but there is no evidence to suggest that

these caused any prolonged difficulty. The pursuer suffered a back injury on 18 March

2007. On the basis of Mr James’ evidence, which was that he would expect a patient to be

active within one to two weeks, but could not say when there would be a return to work, I

have allowed, again on a broad basis, a period of absence of one month. The pursuer then,

however, had difficulties with his right shoulder which did not resolve, and which were

sufficiently severe and persistent to require operative treatment. The pursuer visited his

general practitioner in early June 2007. In October 2007 he was noted as giving an account

of pain sufficient to keep him awake for the previous 8 to 10 weeks, with difficulty elevating

his arm. He had a steroid injection in January 2008. He was noted as having had an

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excellent response to that, including complete pain relief and painless movement above

shoulder height until about a week before 25 April 2008. On that date he was noted to have

difficulty elevating beyond shoulder height, crepitus and pain and weakness. He was listed

for arthroscopy and decompression. He was scheduled for surgery in July but was unable

to attend. He had an arthroscopy and decompression on 1 September 2008 and had

recovered well by 28 October 2008. The pursuer’s own evidence was that he had not been

able to put his hands above his head, but that his right shoulder condition had not been

significantly disabling. That is at odds with a description of pain that kept him awake at

night. An inability to work above head height seems a significant restriction for a

plumber, particularly if working without any assistant or apprentice as a “man with a van”.

[135] From August 2012 until at least August 2018 the pursuer had a protracted period of

ill health because of his GI condition. It involved a number of hospital admissions, and the

pursuer himself described the period to 2015 as “horrific”. Mr Manson’s evidence was that

following the fundoplication operation in 2012 the pursuer was being admitted to hospital

on a regular basis, and could do very little work. On the pursuer’s own account matters

improved when he changed general practitioner. No medical records have been produced

post-dating 2017.

[136] In summary, the period until the beginning of March 2004 requires to be discounted

altogether, as the pursuer would have been unfit for work until then with non-negligent

treatment. Any claim for loss of income can start no earlier than March 2004. I discount

a further six month period during 2005 (left shoulder injury), and a period of six months

from 29 April 2006 (left biceps tendon injury). I have discounted one month in relation to

the back injury in March 2007. In relation to the right shoulder injury, the pursuer was

symptom free between January and April 2008 as a result of a steroid injection. His

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symptoms were troublesome between June 2007 and January 2008, and between April and

October 2008, a total of about 12 months. It is difficult to know whether, or to what extent,

the pursuer might have been able to work during this period if his only problem had been

the shoulder pain, and he was not suffering from the consequences of the defenders’

negligence. In order to account for the possibility that he might have been able to do some

work during this period, while accepting that some plumbing work would not have been

possible for him because he was unable to work at head height, I have restricted the period I

am discounting to six months. I have discounted the six years between August 2012 and

August 2018.

[137] A consequence of these unrelated conditions is that the ability of the pursuer to

develop his business interests uninterrupted would have been limited. A growth in

income of the sort envisaged by Mr Davies when extrapolating from the income from North

East on the basis of current hourly rates, and by the pursuer in his submissions, is not

realistic in that context. On a very broad basis I have taken an average of the mean income

for an employed plumber and for managers and proprietors from Mr Davies’ tables 5 and 6.

That is intended to reflect that the pursuer was skilled, experienced and hard-working and

could expect to earn more than an employed plumber, but also that his ability to grow his

business by sustained periods at work would have been limited by significant interruptions

in the form of the injuries in 2005, 2006 and 2007. His work would have been disrupted for

a six year period by his GI condition. The assessment is of necessity a broad one, and I have

not, therefore, made any further discount to account for the difficulties the pursuer might

have faced when returning to work in late 2018. The range of difficulties and uncertainties

across the period is intended to be reflected in the approach I have taken.

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[138] I have used the net figures produced by Mr Davies for 2004/5 to 2018/19. For the

period April 2019 to date I have taken his 2018/9 figure and multiplied by 1.03 to allow for

inflation, and produced a figure for the relevant number of months in the financial year to

date. Doing this provides a total of £340,166 by reference to the mean earnings for an

employed plumber and £501,598 for a manager/proprietor, assuming continuous work.

[139] Again, using the figures provided by Mr Davies, I have made deductions

representing half of the 2005/6 figure, seven-twelfths of the 2006/7 figure, one quarter of the

2007/8 figure, one quarter of the 2008/9 figure, two thirds of the 2012/3 figure, all of the years

2013/4 to 2017/8 and one third of the 2018/19 figure, in line with the approach outlined

above. Those deductions total £168,311.60 in respect of an employed plumber, and

£233,316.40 in respect of managers/proprietors. Applying those deductions brings out

figures of £171,854.40 and £268,281.60, the average of which is £220,068.

Future loss

[140] The pursuer submitted that the pursuer would have been earning £60,818.00 net but

for the defenders’ negligence. A multiplier of 20.39 should be applied, producing a figure

of £1,240,079.02. The “raw” multiplier was 23.71. The reduction factor for contingencies

other than mortality was 0.86 because the pursuer had been employed, had not been

disabled, and was of the lowest educational grade. If there was any residual earning

capacity, the multiplier to be applied to that should be calculated on the basis that he was

disabled, out of work and at the lowest educational level. The applicable factor would be

0.11.

Page 53 ⇓

[141] The defenders submitted that I should make a lump sum award of £100,000. If I

were minded to apply a multiplier, I should work on the basis of retirement at 60, rather

than 70.

[142] So far as future loss is concerned, I proceed again taking an average of the mean

income of an employed plumber and the income of a manager or proprietor as the starting

point. I have used Mr Davies’ figures for 2018/9 multiplied by 1.03. That produces a

figure of £29,057. In taking this approach I accept the pursuers’ evidence that his GI

condition improved very markedly following the intervention of his new general

practitioner. I accept that his GI condition would not now stop him from working. I accept

the evidence of both orthopaedic surgeons that the pursuer has some limitation of

movement in his right shoulder. Again, however, given the number of variables in this

case affecting what the pursuer would be doing at the present time, absent the defenders’

negligence, I consider that a figure derived from the earnings of employed plumbers and

managers/proprietors is a realistic one. I bear in mind that a realistic option for the

pursuer, if he were able to use his right hand, would be kitchen or bathroom design.

[143] I accept Mr Davies’ assessment that the pursuer’s employment prospects are poor,

particularly given his difficulty with typing and using a computer mouse. I accept the

pursuer’s evidence that he has these difficulties. The pursuer is now aged 47. He has no

formal qualifications other than in relation to plumbing. His inability to operate a

computer for any length of time raises an obvious difficulty in relation to relatively low-level

employment in an office environment. Mr Davies’ assessment is that the pursuer could

work in certain fairly limited types of employment on a part-time basis. The pursuer is

unfit for the work for which he was trained, and for other forms of employment, such as

kitchen and bathroom design, which he could otherwise reasonably have hoped to obtain.

Page 54 ⇓

His ability to cope with giving evidence throughout a whole court day was limited. Mr

Davies envisaged retail work in a DIY store, which involved advising customers, for 15 or 16

hours a week. If the pursuer were to work for 16 hours per week for a wage of £9 per hour

(just above the minimum wage) he would earn £7,488. I do not consider that there is a

proper basis in the evidence for me to conclude that he is likely to earn more than that in the

foreseeable future.

[144] I am not prepared to assume, as the pursuer submitted, that he would have worked

to age 70 but for the defenders’ negligence. That is unrealistic in a context in which he was

working in a skilled manual role, and has already, at age 47, suffered from such a variety of

injuries and other physical complaints. I have proceeded on the basis of a retirement age

of 65. The multiplier derived from table 9 in the Ogden tables is 18.55. I have applied a

reduction factor of 0.86 derived from table A, on the basis that the pursuer would have been

employed, his age, and that he was in the lowest category for educational attainment. That

produces a multiplier of 15.93 which should be applied to the figure of £29,057. That

produces a figure of £462,878. In relation to the multiplier to be applied to the pursuer’s

residual earning capacity, I have derived a reduction factor of 0.11 from table B, which

produces a multiplier of 2.04. I therefore assess the pursuer’s future financial loss in the

sum of £447,602.

Quantification of claim

Solatium

[145] The pursuer valued solatium in the sum of £130,000 with half allocated to the past,

referring to paragraph 7(F) and 4.

Page 55 ⇓

[146] The defenders valued solatium by reference to paragraph 7(F)(b) of the Judicial

College Guidelines, which relate to injuries resulting in permanent and substantial

disablement. They submitted that a figure of £39,470 was appropriate, with one quarter

allocated to the past for the calculation of interest.

[147] Paragraph 7(F) of the Judicial College Guidelines, with a 10% uplift, indicate a range

between £84,310 and £114,810 for severe injuries, which are described as injuries which fall

short of amputation, but which are extremely serious and leave the injured person little

better off than if the arm had been lost; for example a serious brachial plexus injury. They

provide a range, subject to the same uplift, of between £34,340 and £52,490 for injuries

resulting in permanent and substantial disablement. Injuries in this category include serious

fractures of one or both forearms where there is significant permanent residual disability,

whether functional or cosmetic.

[148] The condition of the pursuer’s arm is such that he has significant permanent residual

functional disability. He has a chronic pain syndrome. He has had pain over a very

protracted period, and there is no suggestion that that will improve. He also has scarring,

which constitutes a cosmetic disability. As well as the ongoing disability associated with his

arm, the pursuer has continuing anxiety and depression, although it is likely that he will

experience some improvement if he obtains CBT treatment. If I were looking at the anxiety

and depression in isolation, I would regard them as falling within the moderate category

identified in Paragraph 4(A) of the Judicial College Guidelines. Taking all of these matters

into account, I consider that his injuries fall somewhere between the ranges indicated in

paragraphs 7F(a) and (b) respectively. I value solatium at £60,000, and allocate one half to

the past. Parties agreed that interest amounted to £15,922.19.

Page 56 ⇓

Services

[149] The pursuer sought damages for loss of services. I was asked to assess this on a

broad basis. The pursuer had given evidence that he had not been able to assist his son as he

would have liked with go-karting. There was no evidence given in any more detail than

that, either orally or in the pursuer’s statement. There is no basis on which I can attempt

properly to value this head of claim and I make no award.

Past loss of income

[150] On the basis of the calculations detailed above, I assess the pursuer’s past wage loss

in the sum of £13,873. Parties agreed that interest amounted to £5,000.

Future loss

[151] On the basis of the calculations detailed above, I assess future financial loss in the

sum of £447,602.

Conclusion

[152] I therefore pronounce decree in the sum of £542,397.19, inclusive of the sum of

£180,000 already received as interim damages.