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SHARON COSSEY AGAINST THE BUCCLEUCH ESTATES LTD [2022] ScotCS CSOH_50 (27 July 2022)
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[2022] ScotCS CSOH_50
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OUTER HOUSE, COURT OF SESSION
[2022] CSOH 50
PD196/21
OPINION OF LORD TURNBULL
In the cause
SHARON COSSEY
Pursuer
against
THE BUCCLEUCH ESTATES LTD
Defender
Pursuer: Galbraith QC, Langlands; Digby Brown LLP
Defender: Shand QC; DAC Beachcroft (Scotland) LLP
27 July 2022
[1]
The pursuer in this case is a 45 year old woman who lives with her husband and
teenage son at the address in Selkirk given in the instance. She works, as she has done for a
number of years, as a service centre manager for Yodel Delivery Network Limited at their
depot in Carlisle. This action arises out of an accident which occurred on 12 August 2017.
[2]
Whilst the pursuer sustained relatively minor soft tissue injuries at the time, in the
claim advanced on her behalf damages are sought on the basis that she now suffers from
widespread and persistent pain resulting from an exacerbation of her pre-existing
somatoform symptom disorder.
2
[3]
The defender admits liability for the accident. The issues canvassed before the court
concerned the extent of the injuries sustained at the time, the extent to which the pursuer has
suffered from persistent pain thereafter and whether or not her condition was exacerbated
by the events of the accident. The evidence upon which the respective cases were based was
led over nine days and focussed heavily on the pursuer's medical records and the various
expert reports lodged. In light of the ways in which the competing positions came to be
presented it will be necessary to set out parts of the evidence in some detail.
The pursuer's claim
[4]
It may be helpful to begin by setting out a summary of the pursuer's account of her
post-accident difficulties in order to provide an overarching picture which will inform the
account of the evidence and analysis which follows.
[5]
In the period immediately after her accident the pursuer was not able to attend work.
She did not lose any wages however as she was allowed to work from home and was
apparently well enough to do so. The period of time which the pursuer was working from
home was not established with any certainty but appeared to be around four weeks. After
that her employers arranged for a staged return to office duties. For a time she had a cast on
her wrist which was removed on 4 October and, at least until that was removed, the
pursuer's father in law drove her to work and home again. The frequency with which he
did so was unclear. After around eight weeks the pursuer was back working full time at
Yodel's depot in Carlisle.
[6]
The pursuer's evidence was that throughout the nearly five years since her accident
she has suffered from persistent pain in the right hand side of her body located in her
shoulder, arm, wrist and leg. She explained that she had experienced pain in her right leg
3
and back since the accident, that her leg pain had been persistent throughout and had
become worse over the course of that period. She was never pain free and she was "at all
times in unbearable pain".
[7]
The pursuer described being restricted in the extent to which she can walk, not being
able to enjoy previous hobbies such as cycling and being limited in the extent to which she
can drive. Driving to work was painful and difficult for her. Her evidence was that she
finds it difficult to sit or stand in the same position and continues to require support from
her husband in tasks such as brushing her hair and cutting her toenails. She explained that
she becomes tired easily, cannot manage ordinary domestic tasks, has difficulty undertaking
household shopping and cannot lift things. She drops items easily. In her evidence the
pursuer stated that she cannot put her weight onto her right leg as she can go over on her
ankle. She has been unable to take her wheelchair bound mother for walks as she
previously did. Her ability to perform her work has been diminished. She was not able to
lift parcels and was more forgetful than she had been previously. She required to make lists
to remind herself of tasks. As a consequence of her pain and associated limitations the
pursuer considered that she is no longer capable of achieving promotion.
[8]
In describing her circumstances to an expert medical witness who examined her in
January 2021 she reported that her life had been "ruined" as a consequence of the injuries
sustained in the accident and that she still required help getting in and out of the shower,
getting dressed and to wash and dress her hair. At a subsequent examination in February
2022 the pursuer described her body as "feeling crippled".
4
The accident
[9]
In the late afternoon of 12 August 2017 the pursuer attended a barbecue at her
neighbour's house, a short distance from her own. She was with her husband and son. She
consumed no more than two glasses of wine. As all three were making their way home the
pursuer stepped on a manhole cover which became dislodged causing her to fall down into
the manhole. Quite what happened to the pursuer in this process has been described in a
number of different ways and is difficult to reconcile with the dimensions of the structure.
[10]
In evidence the pursuer described both of her legs falling into the manhole and
managing to stop herself from descending further by putting her arms out to either side of
the top of the manhole. Having halted her fall in this fashion her feet were not touching the
bottom and she was in the manhole to the depth of her chest, just above the area of her ribs.
She was then pulled out by her husband. Mr Cossey described a similar picture, with his
wife being in the manhole with her arms out at the side and having to pull her out by her
jeans, which were below the level of the lid of the manhole.
[11]
At the Borders General Hospital the next day the pursuer seems to have described
falling in to the depth of her abdomen. According to her work colleague Anthony Masson
she told him she fell into the manhole up to her neck. When interviewed in May 2020 by
Dr Stewart, Consultant Psychiatrist, she appears to have told him that she fell into the
manhole to about waist height and supported her weight with her arms before being pulled
free by her husband. In October of that year, when interviewed by Professor Carson, a
Consultant in Neuropsychiatry and Psychological Medicine, she appears to have told him
that by breaking her fall with her arms she had saved herself from falling in much further,
that her feet did not touch the bottom and that her body was into the hole somewhere to
around abdomen height. The first description which she gave to Mr Angus MacLean,
5
Consultant Orthopaedic Surgeon, when she met him in January 2021 appears to be that she
fell into the manhole up to her armpits. It was rather faintly suggested to Mr MacLean that
he may have been wrong about the first account given to him but the other medical
witnesses were not challenged to the effect that they had misunderstood, or incorrectly
recorded these aspects of the accounts given to them by the pursuer.
[12]
The consistent picture which the pursuer appears to have conveyed is of her
dangling in the hole whilst supporting herself by her outstretched arms on either side of the
manhole. Throughout her evidence she insisted that her feet had not been touching the
bottom of the manhole.
[13]
Video footage of the manhole was taken by Mr Charles Bennewith, one of the
Buccleuch Estate workers who was instructed to attend on the day of the accident. The
footage was not taken until February 2021 but he explained that no repair had been
conducted beyond replacing the cover of the manhole. The footage shows a rectangular
shaped cavity, apparently constructed from breezeblock, the purpose of which is to give
access to a waste pipe located at the bottom. The depth, as shown being measured, is just
under 2 feet. When the pursuer was shown this video footage her initial reaction was that
the manhole was not in that condition at the time of the accident but the difference she
described was to do with the area around the lip of the cavity where the cover would be
placed. She was unable to offer any explanation as to how her feet could not have touched
the bottom given the measured depth. She explained that she was 5'2" tall.
[14]
When Mr Cossey was shown the video footage in cross examination his reaction was
also to suggest that the footage showed the manhole in a different condition. As he put it, if
it had been the depth as shown in the footage she could not have fallen up to her waist.
That seemed to me to be a correct observation, at least if her feet were not touching the
6
ground. Therefore the explanation must be that the depth of the manhole has changed, or
that the descriptions given by the pursuer and her husband cannot be correct .
[15]
It seems obvious that the footage shows the depth of the manhole as it was at the
time of the pursuer's accident. Looking at the structure of the cavity seems to make that
plain and the pipe to which it gives access is clearly visible at the bottom of the manhole.
Mr Bennewith gave evidence that it had not been changed. No attempt was made by
counsel for the pursuer to suggest there had been any change to the depth of the manhole.
In this regard it may be worth noting Mr Cossey's evidence that he took pictures of the
manhole the day after the pursuer's accident which he gave to her solicitors. These were not
produced at the proof but, assuming his evidence to be correct, these will no doubt have
influenced counsel for the pursuer's approach to this question.
[16]
I therefore do not accept that the pursuer's evidence about finding herself dangling
in the manhole with her feet not reaching the bottom provides a reliable description of what
occurred. I accept that the pursuer did give the various accounts of the event to the medical
witnesses mentioned above. I am less sure about the reliability of the account given to
Mr Masson and I shall put that out of account. The first conclusion which I am therefore
driven to is that the pursuer was not a reliable witness in relation to what happened in the
course of her accident and has not been a reliable historian when describing it to others.
Whether this is of any further consequence is something to be considered later.
The aftermath of the accident
[17]
On 13 August the pursuer was in considerable pain and attended at Borders General
Hospital. She was complaining of all over body pain and was found to have tenderness in
the area of her neck, bruising over her right thumb, swelling with bruising over the area of
7
her right knee and tenderness over the area of her right ankle. It was suspected that she
may have broken the scaphoid bone in her wrist, a splint was applied and it was arranged
that she would be seen as a follow-up patient in the orthopaedic clinic. However x-rays of
her right ankle, right hand and right knee taken that day were all un remarkable. It was
noted that no head injury had been sustained. Photographs taken at this time showed
obvious areas of bruising on the outer aspect of the pursuer's right calf and ankle, bruising
around the outer aspect of her right knee and some bruising to the outer aspect of her right
thigh a little above the knee. Bruising below her right thumb was also evident.
[18]
On each of 14 and 15 August the pursuer re-presented at the Borders General
Hospital complaining of pain in the area of her right arm and neck. She was treated with
simple analgesia and discharged. On 23 August she again attended at the Emergency
Department of the hospital complaining of pain in the area from her right elbow to her
shoulder. X-rays were taken which disclosed no bony injury. Between then and late
November 2017 various follow-up consultations took place at which more specialised
examinations and assessments were carried out.
[19]
On 28 August the pursuer saw Mr Mehdi, a Consultant Orthopaedic Surgeon at the
Borders General Hospital following on from the initial referral made on 13 August. He
noted that x-rays did not disclose a fracture of the scaphoid bone and that x-rays taken
previously did not show any fractures or dislocation of the shoulder . As a precaution he
applied a cast to the area of her wrist and arranged for a CT scan of this to take place, noting
that if no fracture was identified the cast could be removed. He also arranged for an
ultrasound scan of her shoulder.
[20]
Mr Mehdi saw the pursuer again on 4 October on which date the cast was removed.
He reported that the CT scan of her wrist did not reveal any fracture but that the ultrasound
8
scan of her shoulder had revealed an undisplaced fracture of the greater tuberosity.
However the actual radiology report recorded that there was only a suggestion of an
undisplaced fracture in this region and subsequent tests confirmed that there was no
fracture.
[21]
The pursuer then arranged to be seen privately by Mr Reid, a Consultant
Orthopaedic Surgeon at the Murrayfield Spire Hospital. On 21 November he reported that
an MRI scan of the right shoulder was entirely normal and there was no evidence of any
acute fracture or injury. He went on to observe that he had reviewed all of the pursuer's x -
rays and scans from the NHS and that her previous shoulder x-ray and CT scan showed no
evidence of fracture. Mr Reid also recorded that the pursuer was reporting a sense of light-
headedness and he wondered if she had suffered a concussion in her injury "as she is not
able to remember the injury at all". In light of this he made an arrangement for the pursuer
to be seen by a neurologist at the Murrayfield Hospital. He suggested that the pursuer
should continue with the physiotherapy which she had just commenced and that her neck
and shoulder symptoms should resolve over time.
[22]
Accordingly, by a point just over 3 months after the pursuer's accident it had become
clear that she had not sustained any bony injury to her hand or shoulder but was continuing
to complain of pain in the region of her arm shoulder and neck. Throughout this period,
with perhaps the exception of her first meeting with the physiotherapist Mr Pullman, it
seems that the pursuer's complaints of pain, as recounted to her physicians, all related to her
right arm shoulder or neck. No issues to do with her right leg appear to have been
identified or mentioned.
9
The pursuer's ongoing concerns
[23]
It seems clear that the pursuer was dissatisfied with, or disinclined to accept, the
advice given to her by Mr Reid as to the extent of her injuries and the appropriate treatment.
In her evidence she insisted that she had sustained a fracture to her shoulder and that
Mr Reid's diagnosis was wrong. Her explanation was that when she had a scan of her
shoulder the radiographer drew her attention to an image which showed a fracture. When I
attempted to clarify with her why she did not accept Mr Reid's view she stated "I know
what I saw".
[24]
In order to assess the extent to which the pursuer continued to suffer from ongoing
pain or other issues which she attributed to the accident it will be informative to consider
the medical records which were examined during the course of the proof.
[25]
Towards the end of January 2018 she attended her GP complaining of worsening
pain in her right arm with shooting pain from her neck down her arm and also of a
sensation of feeling like walking on air and getting lightheaded. The pain was said to be
interfering with her ability to work and her ability to drive. She requested a referral to an
NHS neurologist and a referral back to the NHS orthopaedic team at the Borders General
Hospital. The neurologist declined to see her on the basis that it was being suggested she
had post concussive symptoms but no head injury.
[26]
At the end of April 2018 the pursuer saw Mr Abouazza, another Consultant
Orthopaedic Surgeon at the Borders General Hospital, following on from the referral made
by her GP in January. A detailed report of his examination was prepared in which he noted
that the pursuer had been complaining of right upper limb pains since the time of her
accident. He noted that on examination she complained of right-sided neck pain radiating
into the right shoulder and down her right arm which was interfering with her ability to
10
work and her ability to drive. She reported having trouble getting dressed and required
assistance from her husband in brushing her hair and washing herself. Mr Abouazza
advised that the pursuer should continue with physiotherapy and analgesia and that no
orthopaedic surgical intervention was required. There is no suggestion in Mr Abouazza's
report of there being any ongoing issue with the pursuer's right leg.
[27]
Throughout the remainder of 2018 there seems to have been only one attempt at
further investigation of the pursuer's neck, shoulder and arm complaints. On 16 October
2018 she was referred by the Orthopaedic Department at Borders General Hospital to a
Consultant Neurosurgeon in order to investigate what was described as:
"... ongoing right-sided neck pain with pain radiating down into his (sic) shoulder,
forearm and hand. This associated with numbness and pins and needles on the right
little ring and middle finger as well as on the ulnar side of the wrist. She finds this
quite debilitating."
[28]
Whilst the pursuer attended at her GP on a number of occasions during 2018
concerning other complaints these upper limb problems do not seem to have been the focus
of her concern on such visits. I shall return to consider these other attendances later.
[29]
Moving into 2019, the pursuer was seen by a doctor from the Neurosurgery
Department of the Western General Hospital on 12 April. In his report to her GP he noted
that she had taken many months to gradually recover from her accident with her major
symptoms being neck pain and right arm pain giving her some unusual sensory type
symptoms and associated ache. Two further aspects of what was reported may be of note.
The first is the explanation that:
"These pins and needles and aching symptoms still trouble her many months after
the original event the right side is always the worst. She complains of no weakness.
She is back at work and manages most of the time other than these occasional
instances where her symptoms stop her in her tracks."
The second is the explanation that:
11
"The episodes that she describes going into her right arm are not on a background of
being there constantly but she can get good exacerbations a few times a week that
stops her in her tracks for a moment until she continues. She has no low back pain or
lower limb symptoms."
[30]
Having noted that the pursuer only takes regular paracetamol when required it was
explained that there were no neurological concerns and it was suggested that she see the
local anaesthetic pain team.
[31]
On 26 September the pursuer consulted her GP complaining of ongoing pains in her
wrist and neck which seemed to have got worse with the change in weather. She was
struggling to hold the steering wheel of her car when driving. On 15 October she again
attended at her GP surgery complaining of a "recurrence" of right-sided neck and arm pain.
In addition to prescribing some pain medication her GP explained she would refer the
pursuer back to the neurosurgeons. This led to a review of an MRI scan of her spine taken in
2017 and a new MRI scan being performed. Although there was some degenerative change
noted her cervical spine was within the normal range and no cause for her presentation was
identified. On 23 October she attended an appointment at the anaesthetic and pain
management team as a consequence of the April referral and reported continuing to
experience pain predominately affecting her neck and arm.
[32]
The pursuer's medical records as examined at proof with her do not disclose any
other occasions during 2019 when she made any complaint or underwent any examination
in connection with any of the symptoms which she attributes to her accident. It is worthy of
note that by the end of 2019, more than two years after her accident, there was no record of
her complaining of pain or weakness in her right leg.
[33]
By 2020 preparations for the bringing of a claim on the pursuer's behalf were
underway and there were very few other GP or medical records identified as being of any
12
relevance. On 27 January she was examined, on the instruction of her solicitors, by
Professor Breusch, a Consultant Orthopaedic Surgeon. Professor Breusch was not called to
give evidence but passages of his report were put to the pursuer for her comment . She
agreed that the account which she gave the professor of her progress after the accident was
accurately recorded at paragraph 4.2 of his report. In that passage the pursuer is noted as
explaining that it took about 6-8 months before her right knee "settled", that her neck,
shoulder and wrist never settled and that she can still get numbness in her leg and that her
right ankle feels "wobbly". She also confirmed having told him that she couldn't sit or stand
for more than 20-30 minutes and that this was an accurate account of her ongoing
circumstances.
[34]
These references to right lower limb issues in Professor Breusch's report appear to
reflect the first mention by the pursuer of any such problems since November 2017. In cross-
examination she explained that she would be surprised to learn that there were no entries in
her prior medical records concerning right leg symptoms. She had suffered from right leg
problems involving numbness, weakness and pain since the day of the accident. The pain
had worsened throughout that period.
[35]
A few days after seeing Professor Breusch the pursuer attended at her GP and sought
a referral to private healthcare in order to receive cortisone injections, as had been suggested
to her by Professor Breusch. The GP's record notes that the pursuer was complaining of
ongoing right shoulder, elbow and wrist pain. Consistent with this account, the letter of
referral to Mr Molyneux, a Consultant Orthopaedic Surgeon at the Spire Murrayfield
Hospital, explained that the pursuer was suffering from right upper limb pain and
wondered whether there was an orthopaedic cause for her shoulder, elbow and wrist pain.
13
[36]
The pursuer saw Mr Molyneux on 21 February 2020 and then again on 20 March. At
the first consultation she reported severe and unremitting pain over the right side of her
body. She located the pain as being from her right shoulder down to her right elbow and
into her wrist. She also described pain over the outer aspect of her right knee and down the
outer aspect of her right calf. She explained that the pain in her leg made it difficult for her
to walk and if the pain is bad it spreads down as far as the outside of her ankle.
Mr Molyneux treated the pursuer with two cortisone injections, one to her right shoulder
and the other to her right knee. At the follow-up consultation Mr Molyneux reported that
the pursuer had noticed an immediate improvement in the shoulder area which lasted for
approximately one week before she had some mild recurrence and reported some
improvement in her knee. Her account to Mr Molyneux by the March appointment was that
her ankle was the biggest of her problems. Although he was not able to administer any
further steroid type injection at that time, because of Covid related restrictions, the pursuer
had continued to see Mr Molyneux periodically since then and had received a number of
further cortisone injections.
Expert witness consultations
[37]
Later in 2020, in the months of May, August and October, the pursuer was examined
respectively by Dr Alexander Stewart, a Consultant Psychiatrist, Dr Jonathan Bannister, a
Consultant in Pain Medicine and Analgesia and Professor Alan Carson, a Consultant in
Neuropsychiatry and Psychological Medicine, each of whom gave evidence. The first two of
these witnesses were instructed and led on behalf of the pursuer whilst the third was
instructed and led on behalf of the defender. I shall consider some of this evidence in more
14
detail in due course but for present purposes it will be sufficient to set out a general account
of the pursuer's condition as she reported it to each of these witnesses.
[38]
On being examined by Dr Stewart the pursuer told him that when she attended at
the Borders General Hospital on the day after her accident she was diagnosed with
concussion akin to being in a car crash at 70 mph. She informed him she had been
diagnosed with a fractured right shoulder and described current symptoms of persistent
pain affecting that shoulder which radiated to her neck, arm, wrist and fingers. She
reported pain in her right hip and thigh meaning that she could only walk for
approximately half of a mile before having to stop due to the pain and she explained that
her right ankle often gave way resulting in falls. She explained that she was never pain-free
and that she was now beginning to experience a left-sided ache. As Dr Stewart recorded at
paragraph 8.2 of his report: "She specifically denied any past history of chronic pain."
[39]
Dr Stewart saw the pursuer again in February 2022 when she reported that her pain
was becoming gradually more severe and debilitating, both knees bein g painful and her
walking distance being restricted to around one mile before she had to stop due to knee
pain. She described herself as feeling crippled, getting easily fatigued and exhausted. She
struggled to concentrate and thought that she performed less well at work than she did
before her accident.
[40]
When she consulted with Dr Bannister the pursuer told him she had definitely
sustained a fracture to her shoulder in the accident. She described continuing to suffer from
pain in the neck, shoulder arm and wrist. She described pain over her right knee and over
the surface of her calf and ankle which was constant and stopped her in her tracks. She
explained that her walking distance was limited to around 2 miles before the pain increased,
she was limited to around 10-15 minutes of standing time and to between 10 and 30 minutes
15
of sitting. She also complained of pain in the lower lumbar spine radiating up towards the
thoracic spine. When asked about her past medical history she mentioned that she had h ad
"bits and pieces" of pain.
[41]
Professor Carson interviewed the pursuer remotely via the Zoom platform. She told
him that on the day after her accident a number of clinicians at the hospital had told her that
it was like she had a concussion from a car accident at 60 mph. She repeated to him that she
had sustained a fracture to her shoulder. In terms of her condition at the date of this
interview the pursuer explained that she still had pain in her shoulder and in her back and
weakness in her wrist. She was not able to lift anything other than the lightest of objects.
Her leg would get painful if she had been on it too long and it became numb and wobbly.
She reported some benefit from the cortisone injections which she had been receiving and
explained that she was now able to walk 2 miles. She had symptoms of forgetfulness and
wrote many lists to assist with this. Professor Carson saw the pursuer again in March 2022
and I shall return to consider the evidence given concerning this consultation in due course.
[42]
The final medical expert to examine the pursuer was Mr Angus MacLean, a
Consultant Orthopaedic Surgeon, who conducted a video interview with her on 25 January
2021 on the instructions of the defender. Mr MacLean noted that other than having her
gallbladder removed prior to the accident the pursuer informed him that she was fit and
healthy. In describing her current symptoms the pursuer told Mr MacLean that she had
suffered a sudden deterioration and pain in her neck and right shoulder around December
2020, that she had pain in her right arm radiating from her shoulder to her elbow and her
hand. She reported weakness in her whole right arm and described ongoing back pain . She
explained that she suffered ongoing pain in her right thigh, knee, calf, ankle and foot. She
explained that recently the pain had radiated into her left leg involving the whole of that leg
16
as well. She was unable to get up from kneeling without assistance due to her leg pains.
She was in constant pain.
The pursuer's pre-accident medical history
[43]
Having sketched out an account of the pursuer's ongoing symptoms and complaints
over the period of time since her accident it will be necessary to consider her pre-accident
medical history. Contrary to what the complainer told Dr Stewart, Dr Bannister, and
Mr MacLean, she did in fact have a very lengthy history of medical complaints which
predated her accident.
[44]
Although the pursuer did not accept this, she has had a long-standing history of
somatoform symptom disorder. That proposition is set out on her behalf in statement 5 of
the record and it was a diagnosis with which both Dr Stewart and Professor Carson agreed.
In Professor Carson's view her condition tended more to the somatisation disorder end of
the spectrum which denoted the more severe cases of somatoform presentations with
multiple symptoms in a variety of body areas on a long-term course. Somatoform symptom
disorder is a condition recognised and defined in the Diagnostic and Statistical Manual of
Mental Disorders, 5th Edition (DSM-5). For present purposes it may be understood as a
condition which causes pain to be experienced in parts of the sufferer's body without there
being an organic or neurological cause. It causes an individual to experience physical bodily
symptoms in response to emotional or psychological drivers. In the course of the proof no
attempt was made to identify the original trigger for the pursuer's underlying condition
and, out of an appropriate sense of respect for her dignity, her early medical records were
not examined with her or explored in any detail with any of the expert witnesses. They
were however relied upon by both Dr Stewart and Professor Carson in arriving at their
17
diagnosis. These records stretched back to the pursuer's teenage years and identified
serious issues and concerns in her health and circumstances at that time. She had required
intensive inpatient and outpatient treatment at Child and Adolescent Psychiatric Services.
An early indication of the presence of her underlying condition might be thought to be seen
in a letter of discharge from the Young People's Unit at the Royal Edinburgh Hospital where
the pursuer had been receiving treatment as an inpatient. It was dated 17 June 1992,
circulated to the other medical professionals involved in her care at that time, and
mentioned the extent to which she displayed symptomatology as a means of influencing
those involved in her care.
[45]
It will not be necessary to list in detail the pursuer's subsequent medical history
leading up to the accident. A summary of the relevant complaints which she presented with
and the various treatments undertaken will be sufficient. With one exception, these
references are all taken from the medical records lodged. The entries which I will mention
were not the subject of any dispute.
[46]
On various occasions up until 1998, the pursuer continued to consult with
psychiatric services concerning depressive symptoms and issues with poor memory and
dizzy spells. She also began to suffer from what was described as non-specific abdominal
pain and vomiting. By 2001 a scan showing no abnormality had been performed and a
diagnosis of irritable bowel syndrome was reached. As explained by Professor Carson,
terms such as this and "functional" were previously used as indicators of a somatoform
symptom disorder.
[47]
From at least 1994 the pursuer also began to complain of pain and other issues
associated with her limbs for which no organic or neurological cause could be identified.
18
Between May and June 1994 she complained of pain in her right ankle causing her difficulty
in walking. In January 1998 she complained of her right leg giving way and having cramps.
[48]
In the evidence given by Professor Carson he explained that he had carried out a
review of the pursuer's medical records and noted that she was complaining of neck pain
radiating into her shoulder as early as the year 2000 and that there were repeated complaints
of pain in that area in the years between 2001 and 2003. This evidence was given in cross
examination by way of response to a suggestion made to him by senior counsel for the
pursuer. Although he did not identify any particular entries in any of the records counsel
subsequently accepted in submissions that this evidence was not challenged or contradicted.
[49]
Between September 2004 and April 2008 the pursuer was examined and treated by
her own GP, a podiatrist, a physiotherapist and a neurologist in relation to problems with
her ankles and leg. She complained of going over on both of her ankles quite a lot and with
increasing frequency. She described her left leg becoming heavier and displaying decreased
sensation. On being seen in the physiotherapy department of the Borders General Hospital
in October 2007 she was described as being confused and describing left or right lower limb
weakness dependent upon supine or prone position. Despite these complaints the pursuer's
gait was described as being undisturbed and an MRI scan of her brain and whole spine
taken in 2005 showed no abnormality.
[50]
By December 2007 the pursuer had been seen at the obstetrics department of the
Borders General Hospital in relation to upper quadrant abdominal pain and was referred to
the gastroenterology department for further assessment. This became an ongoing and
repeated problem for the pursuer resulting in her being hospitalised in April 2009 and
undergoing radiological examination in 2011 and 2013, all with normal results. By
December 2013 the gastroenterology department of the Borders General Hospital reported
19
to the pursuer's GP that she had cancelled planned endoscopy examinations and failed to
attend other appointments.
[51]
By January 2015 she had been referred again to the Borders General Hospital with
recurrent and increasingly severe symptoms over the previous two years suggestive of
gallbladder disease. Whilst endoscopy and other examinations had shown no abnormality,
an ultrasound scan of her gallbladder suggested a 5mm polyp. In February 2015 she was
admitted to hospital with abdominal pain and subsequently had her gallbladder removed.
In September 2015 her consultant surgeon Mr Mustafa wrote to her GP explaining that after
removal the pathology results of her gallbladder examination disclosed that it was normal
and there were no gallstones or polyps. By this stage the pursuer had additionally arranged
a private MRI scan concerning her ongoing symptoms which likewise disclosed no
problems.
[52]
Despite this surgical intervention and reassurance, the pursuer continued to present
with abdominal pain throughout the later part of 2015 and into 2016. She had various tests,
including an upper gastro intestinal endoscopy performed privately. These continued to
show normal results. In his letter reporting the outcome of these tests to the pursuer's GP
dated 2 November 2015, Mr Casey, a Consultant Surgeon at the Spire Murrayfield Hospital,
noted being informed by the pursuer that after surgery she was told by her surgeon at the
Borders General Hospital that she did in fact have some gallstones in her gallbladder . If she
did convey this information it was not correct.
[53]
In December 2015 the pursuer saw Dr Trimble, a Consultant Gastroenterologist at
the Spire Hospital, again complaining, amongst other things, of abdominal pain . Again
various tests appeared to disclose no abnormality. On 4 January 2016 the pursuer attended
at the Emergency Department of the Borders General Hospital complaining of right
20
abdominal pain. She saw Dr Casey again on 13 January explaining that she was still
suffering from recurrent bouts of abdominal pain. On 13 February she contacted NHS 24
complaining of pain in her lower abdomen and side and issues to do with passing urine. On
10 March she saw Dr Casey again who reassured her that the tests carried out had shown no
problem to account for her ongoing symptoms and discharged her from his clinic at that
stage.
[54]
During the course of this period when the pursuer was undergoing examinations in
relation to the complaints of abdominal pain she also continued to report other symptoms.
By April 2008 she had undergone a number of sessions of physiotherapy in relation to her
complaint of left or right lower limb weakness but reported no improvement.
[55]
On 25 February 2011 she was referred by her GP to the Orthopaedic Surgery
department of the Borders General Hospital with a two month history of pain in her right
knee, which was described as a lot of pain whenever she flexes it at work. A report of her
examination at the hospital on 17 March noted her reporting that her right knee gave way
approximately once a week and that although it had settled a little there was still
intermittent pain increasing with bending and twisting or ongoing use towards the end of
the day. An MRI scan and a further review was planned. By letter dated 4 May it was
reported to her GP that the MRI scan was normal and that following review at the clinic her
knee had almost completely settled.
[56]
In January and March 2013 the pursuer was complaining of having a chest infection
and feeling very unwell. A radiology report noted lung fields were clear. In January 2014
she attended at the Emergency Department of Borders General Hospital complaining of
palpitations and chest pain over the last few days. All tests disclosed normal results.
21
[57]
In March 2014 the pursuer attended at the Emergency Department of the Borders
General Hospital explaining that she had been in a minor vehicle accident the previous
evening causing her no pain at the time but that she had woken up in the morning with
stiffness in the right side of her neck radiating to her upper arm.
[58]
On 3 August 2016 the pursuer was referred by her GP to the orthopaedic department
at the Spire Murrayfield Hospital in relation to a complaint concerning her left knee. It was
reported that she had injured that knee around the middle of June by staggering and "went
over on the knee". The referral was on the basis that the pursuer still felt as though her knee
was going to give way and that it had been clicking. The subsequent report from Mr Moran,
Consultant Orthopaedic Surgeon, was dated 17 August 2016 and reported that the injury to
the pursuer's left knee was said to have occurred around 10 weeks before that. At
examination Mr Moran noted that the pursuer was still describing a feeling of instability
when going downstairs and clicking of the knee with limitation of walking. She described
the knee both locking and giving way and that it was swelling up and down. He explained
he intended to arrange an MRI scan. It is not clear from the records whether this was done
or what the outcome was.
[59]
On the same day that the pursuer's GP made a referral to Mr Moran he also referred
her to the orthopaedic hand and wrist department at the Spire Hospital. In this referral the
GP explained that the pursuer had been suffering from pain in her right forearm for the
previous 4 weeks and she herself had raised the question of whether she might be suffering
from carpal tunnel syndrome. The GP noted that the pursuer was reporting that the pain
was worse as the day went on and when her thumb was actively extended. It is not clear
what the outcome of this referral was but no further complaints of right arm pain appear to
have been made until the pursuer's accident in August 2017.
22
[60]
Drawing this history together, it can be seen that over the years prior to her accident
the pursuer presented with a range of medical complaints on different occasions concerning
pain or weakness in her abdomen, both ankles, chest, right hand and arm, left knee, right
knee, left leg, right leg, neck and shoulder. She also complained of memory issues. When
asked about these episodes in evidence the pursuer stated that she had gallstones, which
was incorrect. She rather dismissively stated that she couldn't remember as far back as the
2004 to 2008 examinations in relation to her ankles and legs. When taken through the entries
relating to the 2011 right knee issue, the 2016 left knee issue and the 2017 right arm and wrist
issue she simply stated that she didn't recall any of this as she had attended at quite a few
medical consultations over the years. However, it was not the appointments that the
pursuer was being asked about, she was being asked about the extent and nature of these
previous complaints and the disabilities which she then seemed to be suffering from.
Other post-accident medical issues
[61]
The pursuer continued to present with abdominal complaints in the period after her
accident. On 9 February 2018 she attended her GP complaining of abdominal pain . She was
then admitted to Borders General Hospital where sh e appeared to remain between
11 February and 19 February, although it was not clear whether she was there consistently
throughout that period or whether she was discharged and returned. Various tests were
carried out including an endoscopy with no obvious abnormality recorded. She remained
off her work for a period of about six weeks until April 2018.
[62]
In May, June and July 2018 the pursuer complained of ongoing abdominal pain at
visits to her GP. She was seen again at the Borders General Hospital and by letter dated
18 December 2018 a Consultant Physician in the gastroenterology department informed her
23
GP that she had a background of functional bowel disorder, that colonoscopy examination
had shown unremarkable results and that biopsies taken at that time fell well short of a
diagnosis of inflammatory bowel disease.
[63]
On 25 May 2019 the pursuer contacted NHS 24 concerning ongoing bowel issues and
was then admitted to hospital with severe abdominal pain. She was off work until 12 July
during which period a further colonoscopy showing normal results was carried out. On
15 August she had an MRI scan of her bowel as a consequence of complaining of abdominal
pain and bloating. The report of the scan noted the unremarkable appearances of the small
and large bowel with no evidence of active inflammation and no definite cause for
symptoms demonstrated.
[64]
In addition to these matters the pursuer attended her GP in January of 2019
complaining of pain and problems with her left knee which had been present for the
previous 18 months. She accepted that this was unrelated to her accident. She was referred
to a physiotherapist who subsequently reported on 30 April that early osteoarthritic changes
in the knee had been confirmed by x-ray, that she had poor lower limb biomechanics, weak
quads with muscle imbalance and reduced movement control. In between the appointment
with her GP which triggered the referral and the report of 30 April the pursuer appears to
have had contact with the physiotherapist. On 15 April she consulted with her GP
suggesting that her physiotherapist thought she might have "hypermobility syndrome".
The GPs examination note states that "elbows and knees hyperextend, can touch wrist with
thumb etc. Has been aware of this for a while does get achey joints".
[65]
These records show ongoing investigation and treatment of left knee issues between
January and April 2019 on a background of these problems having been present for many
months before.
24
Somatic symptom disorder
[66]
I have set out above a working understanding of somatic symptom disorder. It will
be helpful to set out a little more about the condition before proceeding further . Each of
Dr Stewart and Professor Carson have expertise in the field of diagnosing and treating
patients with this disorder. There was no substantial disagreement between them in their
descriptions of how the disorder operates and what its features are.
[67]
Patients with somatic symptom disorder present with physical symptoms which
cannot be explained by organic cause. The patient's nervous system is normal but is not
functioning properly and the symptoms perceived are emotionally driven . In patients with
the condition somatoform symptoms may be triggered by almost any form of life event,
including difficulties at work, feelings of being overlooked or problems with childcare. In
essence, anything which can produce human emotion in the positive or negative sense can
trigger the presentation of a somatoform symptom. Emotional change can affect the
presentation of the symptoms. Trauma can have the same effect.
[68]
Patients with the disorder often think the worst about their health and the symptoms
can dominate their lives. They may frequently tell their doctors how bad things are and will
take a long time trying to persuade their doctors that they are ill. The patients will often feel
that something has been missed or seek a further opinion and will constantly report their
perceived medical problems. The symptoms which a patient presents with can change and
it is not unusual for such patients to be poor historians or to provide a description which can
be difficult to follow. Inconsistency of account is a typical feature. Within somatisation
disorder, the more severe form of somatic symptom disorder, the focus of the patient's
25
symptoms will change frequently. It is in the nature of the condition that it presents as
perceived pain in one location and then in another.
[69]
A further feature of the condition, as described by Professor Carson, was what he
called the tendency towards re-attribution. What he meant by this was that a patient has
symptoms which have been present for a long time but comes to be of the view that they all
happened after a single more recent event and everything is then configured or blamed as
occurring since that particular episode. He explained that this is a common feature in his
clinics where patients will insist that all of their symptoms have occurred since a particular
event, even if they are shown records demonstrating that the same symptoms were present a
number of years previously.
[70]
The condition can be very challenging to treat as the patients will often find it very
difficult to accept that their symptoms are being psychologically driven .
[71]
In the pursuer's case it is clear that so far she has not been willing to engage with
psychological treatment. The evidence of both experts was that since her underlying
condition had never been treated she would have continued to present with varying
symptoms even had she not had the accident. They agreed that her inability to accept the
diagnosis of somatic symptom disorder means that the prognosis for her recovery is poor .
Without acceptance of the diagnosis and appropriate psychological treatment it is unlikely
that she will see a change in her underlying condition.
The issues between the parties
[72]
Both counsel prepared written submissions which they took me through at the stage
of explaining how they wished me to view the evidence and the conclusions which they
26
invited me to reach upon it. I am grateful to each for the helpful assistance which was
provided in this exercise.
[73]
It appears to me that there are three questions which require to be considered. The
first is the extent to which the pursuer has suffered persistent or constant ongoing pain in
the areas of her shoulder, arm, wrist and leg. The second is whether the presence of any
such pain can properly be viewed as an exacerbation of her pre-existing condition. The
third is whether any such exacerbation was caused by her accident. The conclusion in
relation to the first question will inform the resolution of the second which, depending on
the answer, may go to determining the third.
[74]
In order to decide how to determine the first question it is necessary to come to a
view as to the reliability of the evidence given by the pursuer. Understandably, counsel for
the pursuer invited me to treat her as an honest and generally reliable witness. In doing so
she reminded me of the evidence that it is a feature of somatoform symptom disorder that
sufferers will often give accounts of their condition which contain discrepancies and that
they may find it difficult to give a coherent description or history of their symptoms.
[75]
Counsel for the defender submitted that the pursuer ought not to be accepted as a
credible and reliable witness. She submitted that the importance of a careful assessment of
the reliability of her evidence as to the extent and persistence of her symptoms was
illustrated by what Professor Carson said at page 11 of his first report:
"The nature or (sic) any functional symptom is that they break the normal rules of
pathophysiological disease .... One is entirely dependent on the reliability of the
Claimant."
[76]
I accept that a common feature of somatoform symptom disorder is that those
affected may provide inconsistent accounts containing discrepancies, or accounts which lack
coherence. However, that does not make it any easier for the court to treat the pursuer's
27
own evidence as providing a reliable body of testimony upon which it can proceed. The
opposite may be the case. Nor do these features of the pursuer's condition serve to reduce
the burden which she must discharge of establishing her case.
[77]
I should note at this point that during the leading of evidence, and in her final
submissions, counsel for the pursuer submitted that if it were to be contended that the
pursuer had exaggerated or fabricated symptoms such propositions would require to be
explicitly pled, argued and put to the pursuer. Counsel submitted that at no stage was it put
to the pursuer that she was exaggerating or not telling the truth. Quite what the import of
this submission came to be was somewhat elusive, as counsel accepted that the reliability of
the pursuer's evidence could be explored in cross examination and would be a relevant issue
for me to determine after submissions.
[78]
The defender's case has never been one of fabrication . The pursuer was not accused
of lying or of exaggerating in the course of cross-examination. The focus of the defender's
case was to examine the extent to which the claim of exacerbation could be made out.
Nevertheless, I would find it difficult to accept that I was disabled from concluding that any
witness had exaggerated, or not told the truth, about an aspect of his or her evidence if th at
appeared to be to be plain having listened to the testimony, simply because such a
proposition was not foreshadowed in the pleadings or put directly to the witness. I do not
consider that anything which was said in the single judge decision of Grubb v Finlay
[2017] CSOH 81 relied upon by counsel for the pursuer suggests otherwise. The comments there
made were dealing with the specific aspects of that case. The reliability of the pursuer's
evidence is a crucial aspect of the present case and, by way of example, it does not appear to
me to matter why she gave the varying accounts concerning the extent to which she fell into
the manhole. She may be exaggerating or she may have come to believe that she was indeed
28
dangling up to chest height in the hole without her feet touching the bottom. The simple
question is whether that account can be accepted as reliable. The same applies to her
evidence as to the extent and persistence of her symptoms.
The first question - the extent to which the pursuer has suffered persistent or constant
ongoing pain in the areas of her shoulder, arm, wrist and leg
[79]
It is plain that the soft tissue injuries sustained by the pursuer in the accident would
cause a degree of pain and limitation over a period of time, albeit a relatively short one. I
also accept that after the recovery of the soft tissue injuries the pursuer has, at times,
continued to perceive pain in various parts of her body including her right shoulder, arm,
wrist and leg as a consequence of her underlying somatic symptom disorder. The first
question which I require to come to a view upon is the frequency with which she has been
exposed to pain in these areas, in other words, whether this has been of an intermittent or of
a more constant nature. Taking the pursuer's evidence at face value and without taking
account of any apparent inconsistencies or discrepancies, the picture painted would be of
constant debilitating pain throughout.
[80]
In determining whether I can accept this as reliable evidence upon which to proceed
I have to take account of the picture as illuminated by the whole of the pursuer's evidence
and measure her evidence against any other testimony which may support or undermine it .
There are a number of sources of evidence to take account of in this exercise.
The pursuer's own evidence and accounts
[81]
The pursuer has insisted throughout that her shoulder was fractured in the accident .
This was her position in evidence. She repeated this claim to Dr Stewart, Professor Carson
29
and Dr Bannister. She has been told that it was not fractured and it is accepted on her behalf
that the orthopaedic evidence makes it plain that it was not. Nor has there ever been a
suggested mechanism which would account for any such injury in the accident which she
described. It is interesting to explore why the pursuer insists on this account. Whilst it is a
feature of somatoform symptom disorder that sufferers will be convinced that there is an
organic cause for their pain, the pursuer's explanation is rather more elabor ate. Her
evidence was that she was shown an image by a radiographer in which the broken bone
could be seen. It was clear enough for her to be able to see the break herself. The medical
records demonstrate that x-rays, an ultrasound scan and an MRI scan of the pursuer's
shoulder were all undertaken. It was not plain in her evidence on which occasion she claims
this event took place. However, the pursuer gave an account of this episode to
Professor Carson which is referred to at page 11 of his first report. As recorded there, the
account was of the scanning being halted midpoint and a radiographer diagnosing a fracture
to the shoulder on an image which was shown to the pursuer but which image could not
subsequently be located. Professor Carson give a general description in his report of how
such a scan would be carried out and he amplified this in evidence. In short, his explanation
of the process involved meant that the pursuer was describing an incident which was
impossible. No contrary explanation of the process was suggested to Professor Carson
which could account for the description given by the pursuer. Accordingly, the evidence of
this episode demonstrates that the pursuer has come to create for herself an explanation of
an event which she is convinced of, to the extent that she will not accept contrary expert
medical evidence, but which is entirely incorrect.
[82]
According to Dr Stewart, the pursuer told him that when she attended at the Borders
General Hospital the day after the accident she was diagnosed with concussion akin to being
30
in a car crash at 70 mph. According to Professor Carson she told him something similar but
at 60 mph. According to Professor Carson the pursuer repeated this to him a number of
times throughout his first interview with her. Neither witness was challenged on this
evidence.
[83]
The report of her attendance at Borders General Hospital records that the pursuer
suffered no head injury. There is no record of her being diagnosed with concussion of any
sort, and there would be no basis for doing so. The reason why the NHS Neurologist
refused to see the pursuer in 2018 was because there was no basis for considering concussion
in the absence of a head injury. The injuries which she was suffering from when she first
attended at the hospital are shown in the photographs which she took. They show some
painful looking bruising but it would seem incredible that anyone could describe them as
being comparable to injuries sustained in a high-speed car accident. I therefore have
significant doubt as to whether this was said to the pursuer by any of those involved in her
care on her initial presentation to the Borders General Hospital. I cannot identify any
sensible explanation for her telling Dr Stewart and Professor Carson what she did.
[84]
In Professor Carson's report of his examination of the pursuer conducted on
25 October 2020 he recorded an account of what he was told by the pursuer about her ability
to continue in her pre-accident employment. He noted being told that she was allowed to
work from home after the accident and that remained the case as at the time of his
examination some years later. He also noted being told that she had moved to a less
demanding role because she was not able to undertake some of the more cognitively
demanding and manual handling tasks of her previous role. The consequence of this, as he
noted her telling him, was that she required to take a reduction in salary of some £20-£30,000
per year.
31
[85]
With the possible exception of manual handling, which I will address later, none of
these comments would have been correct. In her evidence the pursuer's position was that
she told Professor Carson that the reduction in salary was a reference to what she would
have been receiving had she been promoted. This was in turn explored in evidence with the
Professor. He gave a convincing explanation of why he paid close attention to what the
pursuer told him about her employment circumstances. This included the importance to
him of understanding how well or otherwise a patient with somatoform symptom disorder
was coping with aspects of their employment and his surprise at the level of remuneration
associated with the pursuer's position. He also rejected, for equally convincing reasons, the
suggestion that he had misunderstood what the pursuer had said to him about working
from home. I had no difficulty in concluding that Professor Carson's evidence should be
accepted on these points and that he had accurately recorded what he was told by the
pursuer. This is another example of an account being given by the pursuer of incorrect
consequences associated with her accident.
[86]
These examples, when taken along with the pursuer's account of her accident, vouch
that she has demonstrated a history of providing inaccurate information on matters affecting
the claim advanced on her behalf. Whether that is explained by a symptom of her
underlying condition or some other reason does not really matter. What it demonstrates is
that her evidence cannot always be treated as reliable. That conclusion has to be kept in
mind in assessing the pursuer's evidence as to the persistent nature of her pain .
[87]
As noted at paragraph [34] above, the medical records disclose that the pursuer only
began to complain to any of her doctors about right leg pain in January 2020. When asked
about this in cross examination she said that she would be surprised if there were no earlier
entries concerning pain in this region. At a different point in evidence she said that the
32
absence of any such entry in the records was because she was on what she called "heavy
medication" which was working. Her attention was drawn to the entry in her GP records of
10 January 2019 recording pain in her left knee for the previous 18 months. In response the
pursuer stated that the painkillers were not working for her left knee but were for her right
knee. It was very difficult to accept this as a credible or reliable explanation.
[88]
The pursuer's account of persistent right leg pain appears to be inconsistent with the
content of the letter to her GP following her examination at the neurosurgery department of
the Western General Hospital on 12 April 2019 in which, as noted above, it is recorded that
she reported "no low back pain or lower limb symptoms".
[89]
There were also various other examples in the accounts which the pursuer had given
over time which demonstrated inconsistency, such as the various different accounts she
gave as to how far she was able to walk or for how long she was able to stand or to sit.
There was also a passage in her evidence where an entry from page 5 of Mr MacLean's
report was examined with her. He had noted that in January 2021 she told him that the leg
pain which she suffered had recently radiated into her left leg involving that whole leg as
well. When she was asked about this the pursuer's response was rather evasive. At first she
stated that she would deny having any issues other than with her left knee. When pressed
on what Mr MacLean had recorded she continued to respond as if being asked about saying
she had pain in her left knee and seemed unwilling to engage with the proposition that she
had mentioned radiating pain into her whole leg. Eventually she simply said that she would
not be able to answer the question of whether she told h im what was recorded or not.
33
The various medical records
[90]
It will also be instructive to take account of the pursuer's medical records to assess
whether they provide any overall support for the reliability of her account that she had
suffered from persistent pain since the time of the accident. It is perfectly clear that she has
made complaints of suffering from pain in her shoulder arm and wrist and I accept that she
has perceived pain in these regions. The question is whether the records support her
account of this being persistent or suggest a more intermittent problem.
[91]
As noted at paragraphs [25-27] above, the pursuer spoke to her GP in January 2018
about pain and sought a referral to the NHS orthopaedic team, subsequently seeing
Mr Abouazza in April and then being referred to a neurosurgeon in October. In
submissions counsel for the pursuer suggested that she also presented for medical
examination and treatment in relation to right-sided pain associated with the accident on
5 February, 8 February, 29 May, 17 September and 1 December. It is correct that she
attended for physiotherapy on 5 and 8 February. The physiotherapist was not called to give
evidence but the record for the consultation on 8 February records that the pursuer was
improving, getting better sleep and had better movement but some stiffness undressing. As
far as I can interpret it, the record for her attendance at her GP on 29 May relates principally
to a complaint of urinary tract infection, which was a further regular difficulty for the
pursuer. I can detect no entry for 1 December. It is correct to note that she consulted with
her GP on 17 September, again in relation to urinary tract issue and a backache but also
commented that she had ongoing pain in her right wrist and was back to using a splint at
night. There is no note in this record of ongoing pain in any other area.
34
[92]
This appears to suggest a picture of improvement by February, general right arm and
shoulder pain being complained of again in April, a complaint of wrist pain only in
September and a complaint of ongoing neck and arm pain in October.
[93]
In paragraphs [29-31] above I have summarised the evidence concerning the
pursuer's attendance for examination or treatment in relation to right-sided pain in 2019.
The first record seems to be of the attendance at the Neurosurgery Department of the
Western General Hospital on 12 April, around 6 months after the pursuer's last complaint.
Albeit the report of that examination notes that her symptoms still troubled her at that stage
it is noted that the problem at work is the "occasional instances where her symptoms stop
her in her tracks". It is specifically noted that the arm pain is not constant "she can get
good exacerbations a few times a week that stops her in her tracks for a moment until she
continues". By September she seemed to be explaining that the colder weather had caused
the symptoms to worsen and in October she was talking of a "recurrence" of right-sided
neck and arm pain. By later October she was being reviewed at the Neurosciences
Department of the Western General Hospital in connection with minor degenerative
changes in her cervical spine and then at the Chronic Pain Clinic to which she was referred
after her April consultation at the neurosurgery department. This appears to paint a picture
of a few attendances scattered throughout the year with language being used which was
suggestive of intermittent problems. In submissions counsel for the pursuer also referred to
entries in the medical records for 10 January and 11 February as supporting the complaints
of right sided pain but these entries plainly relate to issues with the pursuer's left knee.
[94]
As noted above, by 2020 the pursuer was beginning to see the various experts
instructed in preparation for the case and the complaints of her symptoms came to include
right leg problems.
35
The evidence of the pursuer's husband
[95]
The pursuer's husband gave evidence which in part addressed the extent of her
ongoing difficulties. Generally speaking he did paint a picture of the pursuer having
changed since the accident and of her being restricted in the activities which she could now
engage in. However, other than when describing the first few weeks after the accident, his
account of how the pursuer was affected was generalised, vague and sparse. His evidence
certainly supported an account of the pursuer continuing to suffer from pain since the
accident. I was not persuaded though that it assisted much in assessing the question of the
extent to which that pain was present intermittently or continually after the later months of
2017.
The evidence of the pursuer's work colleagues
[96]
Three of the pursuer's work colleagues gave evidence, Mr Cowan, Mr Lee and
Mr Mason. Mr Cowan was previously employed by Yodel as a senior HR business partner
for the north network and had known the pursuer between 2010 and April 2018 when he left
to take up employment with a different company. Mr Lee was a regional director for the
company. The pursuer's depot in Carlisle fell within his region and he had known her since
around 2012. Mr Mason worked in the same office as the pursuer and had known her for
around 15 years.
[97]
These witnesses provided a combination of evidence describing the pursuer's
working routine and the regard with which she was held within the company.
[98]
Mr Cowan explained that the pursuer's duties concerned managing service
performance against budget, controlling costs and ensuring that staff achieved their key
36
performance measurements. It was obvious from his evidence that she was well regarded
and that from time to time she might step up to fulfil the role of regional manager to cover
holiday commitments. Before he left the company she had been identified as a candidate
who was suitable for promotion. This witness was not in a position to offer much evidence
as to how the pursuer coped after her return to work since she was off work with abdominal
pain issues for a period of around six weeks prior to him leaving in April 2018. He was only
able to comment on her performance in the few months after the accident. His evidence was
that she was not able to participate in what he called "floor activity".
[99]
Mr Lee was a service centre manager before he was promoted to regional manager in
2017. At that point he became the pursuer's line manager and in that role would attend at
the pursuer's centre in Carlisle approximately once a month. He moved on from being her
line manager in 2021. Prior to her accident he considered the pursuer as his number two in
the region. Since her accident Mr Lee considered that the pursuer had abandoned her career
aspirations. She stopped discussing promotion in the mentoring discussions which he had
with her whilst he was her line manager and she seemed no longer to have any mental
ability to cover roles other than that of service centre manager. Another service centre
manager was now his number two. In terms of how she coped, he considered that she
restricted herself to the office side of her work and didn't do as much travelling as she
previously had.
[100]
Mr Mason was the witness who had most contact with the pursuer. He shared an
office with her and held daily briefings with her. He described her job as involving her
being out of her office for about 20% of the time. When she returned to work after her
accident she was wearing a wrist bandage and was on medication . She no longer went on to
what they called "the floor", the area where parcels were unloaded and loaded other than to
37
speak to the drivers. He gave evidence that she was no longer able to carry a parcel and
mentioned an incident in 2021 when he observed her trying to pick up a small package
which she dropped, causing her obvious embarrassment.
[101]
Counsel placed significant reliance on this chapter of evidence in submitting that the
picture of ongoing limited ability presented by the pursuer had been established. It did not
seem to me that the evidence of the pursuer's working conditions and circumstances had the
effect contended for.
[102]
The first point to note is that, other than for a short and uncertain period after her
accident, the pursuer has only been unfit to attend work for three periods in the four and a
half years which followed. She was off work for six weeks between February and April 2018
with abdominal pain and again in May to June 2019 with a similar complaint. In October to
November 2021 she was off work with a chest infection for a period of three weeks. The
pain and disability described as associated with her right upper and lower limbs does not
seem to have resulted in a requirement to take any time off work at all.
[103]
The second point is that other than for a period after her accident the pursuer has
continued to drive from her home in Selkirk to Carlisle and back each day. This is a journey
of around 50 miles each way which the pursuer explained took her just over an hour to
travel in each direction.
[104]
The third point is that the pursuer has continued to perform her pre-accident
employment. There was no evidence of any significant adjustments being made to allow her
to continue or to assist her. There was no evidence of her performance being unsatisfactory.
On the contrary, the Carlisle depot which she managed continued to operate as a high-
performance depot which exceeded in all key performance indicators that were set for it.
The pursuer received bonuses of more than £10,000 in each of the years 2020/2021 and
38
2021/2022 over and above her annual salary of £42,000. In February of 2022 the pursuer was
asked to accept a temporary role of depot manager at the company's much larger service
centre in Livingston. She was asked to take over this role as the depot was underperforming
and operating in a dysfunctional manner. She was given a pay rise to £55,000 and was
offered the position on a full-time basis having shown herself to be a success in the task of
turning the centre's performance around. The pursuer declined to accept this offer and was
due to return to her position as service centre manager in Carlisle at the end of April 2022.
[105]
The evidence as to why she declined this position was very sparse and contradictory.
The pursuer herself said that there were too many stairs for her to get up and down in an
effective manner without expanding or explaining this to any extent. As counsel for the
defender observed, there was no explanation of what the difficulty was. Was it for example
because of the osteoarthritic changes in her left knee which had previously caused long
lasting pain, reduced movement control and mobility issues which required physiotherapy,
or was it simply to be assumed that the difficulty was to do with her right leg?
[106]
Mr Lee explained that his understanding was that the pursuer's reluctance to accept
the position related to the distance involved between her home in Livingston and the fact
that the journey involved her having to drive on dual carriageways. As was contended in
submissions, the distance to travel from Selkirk to either Livingston or Carlisle appears to be
similar. There was no explanation as to why dual carriageway driving would make any
difference.
[107]
Much was made by the pursuer in her own evidence of the proposition that her job
as service centre manager involved a hands-on role, by which she meant that she was
expected to assist with packages and parcels on the "floor" of the depot. Some similar
evidence was given by the other witnesses. However, when this evidence was properly
39
analysed what it came to was that the service centre manager might be expected to help out
occasionally by offloading or loading parcels if the need arose. Parcels would be delivered
to the depot early each morning and unloaded by the inbound team who remained on duty
until 11am. If a delivery arrived late and after the inbound team had left then the drivers
who were still in the depot and others would assist to unload that delivery. My assessment
of the evidence is that there is no sense in which it was the service centre manager's function
to unload or load parcels. Other workers were employed specifically to do this. Whilst a
given manager might help out from time to time as part of maintaining good relations
within the workforce it cannot be said that this was an integral part of the manager's
function. The fact that the pursuer has maintained her position as service centre manager
without any criticism and has plainly been seen as a manager who can be relied upon
supports this interpretation. Such evidence as there was concerning the pursuer's post-
accident work activity was that she did not pick up parcels within the depot. It is obvious
that she may have had difficulty in doing so in the immediate aftermath of her accident
when she had a cast on her right arm. She may subsequently at some point have worn some
form of splint or bandage. The fact that she did not engage in moving parcels after the cast
was removed does not of itself demonstrate she was unable to do so. The only evidence
covering this issue was given by Mr Mason who spoke of observing her attempting to pick
up one parcel on an occasion in 2021 which she dropped.
[108]
Overall, it seems to me that the pursuer has continued in her employment, without
any associated absences, in a well-paid and responsible managerial position which requires
a two-hour drive each day on top of her working hours. She has performed with success in
the eyes of her employers and without any adjustments requiring to be made. It does not
seem to me that this evidential picture provides support for an account of constant
40
debilitating pain. Whilst there was some evidence of a need for a service centre manager to
drive to other locations to attend meetings or larger company conferences from time to time,
there was no evidence as to whether such practices had or would continue after the national
COVID restrictions were removed. More importantly, perhaps, there was no evidence of the
pursuer ever missing any specific meeting that she was expected to attend, other than one
on the day after her accident.
Surveillance evidence
[109]
A further chapter of evidence which is available to weigh alongside the other
testimony is evidence of covert surveillance undertaken on 12 and 13 August 2021 and again
on 4 March 2022.
[110]
On 12 August, amongst other observations, the pursuer was seen standing outside
her car in conversation with a man whom she appeared to know. The interaction was
recorded on a video clip lodged as a production which I have watched in its entirety a
number of times. The two were engaged in a convivial and animated conversation which
lasted in the region of 25 minutes. Throughout the conversation the pursuer appeared
entirely comfortable and relaxed, engaged in ordinary looking bodily movements and
displayed no apparent signs of discomfort or pain. Having got into her car to leave she
stretched out with her right arm to reach the fully open car door and pull it closed before
waving goodbye with that same hand.
[111]
On 13 August she was observed in a supermarket in Langholm where she stopped
off on her way to work to buy some groceries. She was seen to be carrying a basket in the
crook of her right arm which contained a number of purchases including what looked like a
large carton of milk. Again she displayed no signs of apparent discomfort and when she
41
removed her purchases from the counter to place them into her shopping bag she picked
each up rapidly with her right hand with no apparent difficulty. In Professor Carson's
second supplementary report, at page 7, he notes having viewed this surveillance footage
and states his opinion that there is really no sign of any disability at any stage.
[112]
The video footage of 4 March 2022 showed the pursuer driving to her appointment at
Professor Carson's clinic and walking around the car park trying to identify which part of
the building to access. By this time the pursuer knew of the previous surveillance and
suspected, correctly, that she had been followed from her home on this occasion. At various
times, both before and after the consultation, she can be seen looking around her as if
attempting to identify the location of those carrying out the observations.
The evidence of the expert witnesses who examined and observed her
[113]
Professor Carson was able to conduct an examination of the pursuer using zoom on
25 October 2020 and saw her face to face at the Department of Clinical Neurosciences
Outpatient Clinic in Edinburgh on 4 March 2022. He was struck by how difficult it was to
obtain an understanding from the pursuer of where her pain was. She was not able to
localise her symptoms and tended to focus on what she couldn't do rather than explain what
the reason for this was. He considered that the pursuer's account was unusual in that if a
patient was experiencing pain, even somatoform pain, he would expect them to be able to
give a clear description of that pain and to be able to localise it. As he explained, the typical
characteristic found in patients suffering from somatic pain is that they tend to give too
much detail. During his examination on 4 March Professor Carson was able to conduct a
physical examination and noted that the pursuer had an exceptionally sensitive reaction to
fine touch on her spine which he considered very exaggerated. As he explained in evidence,
42
his concern was that her reaction was so extreme that it didn't look credible to him as
someone who had examined thousands of patients.
[114]
At that same consultation Professor Carson noted that the pursuer walked with what
was an obviously disabled gait. When he had the opportunity to view the video footage
taken on 12 and 13 August and the footage taken on 4 March showing the pursuer arriving
at his clinic he was able to compare her gait as shown in the video footage with what he saw
for himself at consultation. His evidence was that the pursuer's gait was completely
different in the 2021 footage as compared to how she presented to him. On looking at the
footage of her attending at the clinic he explained that there was a range of gait types shown.
For a period she appeared to show significant gait disablement but for the rest she did not .
[115]
The pursuer consulted with Dr Bannister at his clinic in Glasgow on 24 August 2020.
He was able to observe her gait as she walked to and from the consultation room. It was
normal. Despite the pursuer telling him that her standing time was limited to around ten to
fifteen minutes and her sitting time between 10 and 30 minutes he noted that she sat
apparently comfortably for forty minutes or so during the interview session which he
conducted. He observed no difference between the ways in which she used her right hand
or her left hand when talking. He concluded that he was seeing someone who was
comfortable with no pain and was talking to him and moving in all directions.
[116]
During his examination he noted an exquisite tenderness in the neck and the trapezii
muscles which was not consistent with the neck movements he observed when he was
sitting consulting with the pursuer. She also displayed a global reduction in the power of all
the muscle groups in her right lower leg which was inconsistent with the even gait he had
observed when she was walking.
43
[117]
The final matter to which I should draw attention in this chapter is the fact that the
pursuer gave evidence standing in the witness box throughout two whole court days. She
did not express discomfort at any point and, to my admittedly untrained eye, did not appear
to be in any sort of pain at any stage. As far as I could determine, her movement and
manner of interacting was entirely normal and unrestrained. I attached very little of any
moment to these views but they do fall to be added to the collective weight of evidence
available.
Conclusions
[118]
It is informative to reflect on the information concerning the pursuer's left knee and
the steps which she took in that regard in early 2019, all as summarised in paragraph [64]
above. It is really very difficult to accept that the pursuer would not have raised the subject
of constant right leg pain along with these enquiries and associated treatment. The fact that
she seems not to have is consistent with the information recorded after her visit to the
Neurosurgery Department of the Western General Hospital on 12 April when she expressly
communicated that she had no lower leg symptoms. Nor had she made a complaint of any
such symptom to any of the various other doctors with whom she had consulted prior to
then. The absence until 2020 of a complaint about the lower limb which now features so
largely in the pursuer's account of her symptoms is difficult to square with the evidence of
Professor Carson. He explained that patients with somatoform symptom disorder tend to
give too much information to their doctors and go into detail about every aspect of their
symptomatology. Having taken all of the relevant evidence into account I am unable to
accept that the pursuer began to experience somatoform pain in her right leg until around
this time.
44
[119]
The extent to which this pain is constant or intermittent can be assessed by
considering the fact that it has not prevented the pursuer from driving to and from her work
on a daily basis. In August 2020 she told Dr Bannister that she was limited to 10 to
15 minutes of standing time. That proposition stands in stark conflict with her observed
conduct on the 12 August 2021 surveillance video. The inconsistencies in gait noted by
Professor Carson and Dr Bannister also feed into this assessment. Putting aside for the
moment the question of how somatoform pain commencing some two years or so after the
pursuer's accident could be seen as an exacerbation of her pre-existing condition, the overall
conclusion which I draw from the evidence which is undisputed, and from th at which I
consider can be treated as reliable, is that the somatoform pain experienced by the pursuer
in her right leg has been on an intermittent basis. I cannot accept her evidence of constant
pain as being reliable.
[120]
I accept that the pursuer has continued to experience somatoform pain in the area of
her right shoulder and arm at times since her accident. The inconsistencies in her own
evidence and in the accounts which she has given make it difficult to accept the reliability of
her evidence as to the constant nature of this pain. An examination of the content of the
medical records and the frequency of presentation points towards a more intermittent
problem. The language used at times is to the same effect. A sudden deterioration was said
to have occurred in December 2020. My assessment of the import of the evidence about the
pursuer's employment circumstances points in the same direction, as does the surveillance
evidence and the evidence of the examinations conducted by Professor Carson and
Dr Bannister.
[121]
In my view, the available evidence which is reliable demonstrates that the pursuer
has suffered somatoform pain in her right upper limb on an intermittent basis since the time
45
of her accident. To the extent that her own evidence was to a different effect I do not accept
it. I have not ignored the evidence of the pursuer's husband in this exercise. The
conclusions which I have arrived at in relation to the other evidence are sufficient to
outweigh the alternative view which was suggested in a general way by his evidence.
The second question has the pursuer's pre-existing somatoform symptom disorder been
exacerbated
[122]
The answer to this question turns largely, but not exclusively, on the evidence given
by Dr Stewart and Professor Carson as seen in the light of the conclusions I have arrived at
on the evidence pertaining to the first question. Both experts are highly experienced in the
diagnosis and treatment of somatoform symptom disorder and, putting it shortly,
Dr Stewart considered that the pursuer's pre-existing condition had been exacerbated, or
become worse, whereas Professor Carson considered that it had not.
[123]
The CVs of these two experts were lodged as productions and they both make
impressive reading. In concluding that Professor Carson has the greater expertise and
reputation within this field I mean no disrespect to Dr Stewart. The extent to which
Professor Carson has conducted research and published in the areas of neurological
disorders and neuropsychiatry is remarkable. He has taught and lectured internationally
and has received "markers of esteem" identifying him as a world leading authority in
neurological disorders and somatoform disorders in general. He is one of, if not the, leading
world authority in neuropsychiatry. Nevertheless, regardless of the standing of an expert
witness, what carries weight is the reasoning not the conclusion (Dingley v Chief Constable,
Strathclyde Police 1998 SE 548, Lord Prosser at page 604, as quoted with approval in the
decision of the Supreme Court in Kennedy v Cordia (Services) LLP [2016] UKSC 6 at
46
paragraph 48). It follows that even although an expert witness may express his view in a
way that addresses the issue before the court, the witness does not supplant the court as the
decision maker and I cannot delegate the decision which I require to make in this case to
either of the experts in this field.
[124]
On behalf of the pursuer I was invited to prefer and give effect to the evidence of
Dr Stewart. Counsel invited me to accept that the pursuer had developed new somatoform
symptoms since her accident and that an overview of the whole evidence would show that
there had been a change in her condition since the accident. This conclusion, it was
suggested, should be drawn from the pursuer's own evidence of constant pain as taken
along with the evidence of her husband and her work colleagues. That combined evidence
demonstrated a change in her overall ability to function which was consistent with and
supported the view arrived at by Dr Stewart. Professor Carson's view should be rejected as
he had based his assessment purely on the pursuer's own account and her medical records.
He had failed to take account of the other evidence which demonstrated a difference
between her pre and post-accident circumstances.
[125]
On behalf of the defender I was invited to reject the evidence of Dr Stewart. It was
submitted that his reasoning was unsatisfactory and had changed over the course of giving
evidence. He had been prepared to proceed on the basis that the pursuer's account should
be accepted as credible and reliable, whereas he ought to have looked more critically at what
he was told. The evidence of Professor Carson should be preferred and accepted. Not only
was he a worldwide expert on somatoform disorder but he had correctly taken a more
critical approach to his assessment and had provided an informed and reasoned basis for
coming to the view which he did.
47
[126]
It is interesting to note the extent to which the competing views expressed by
Dr Stewart and Professor Carson came to be based on judgement. To an extent this may not
be surprising, in that pain cannot be independently assessed or measured in the way that
muscle deterioration or organ function may be. Nor does there seem to be a standardised or
scientifically based agreed process, or protocol, for determining whether the extent to which
the condition of a patient suffering from somatoform symptom disorder had worsened.
That may reflect the extent to which the precise mechanism of the condition remains poorly
understood. Each of Dr Stewart and Professor Carson approached the matter differently. It
will be helpful to look at the approach of each in turn.
Dr Stewart
[127]
Dr Stewart interviewed the pursuer remotely by video in May 2020 and February
2022. He did not record having carried out any form of examination or assessment of her
mobility or susceptibility to pain.
[128]
In evidence in chief Dr Stewart spoke to the conclusion set out in paragraph 17.11 of
his first report which is in the following terms:
"Therefore, from a diagnostic perspective I think it likely, on the balance of
probabilities, that the impact of the index accident has been to cause an exacerbation
of Mrs Cossey's pre-existing Somatic Symptom Disorder with the development of
widespread pain."
[129]
He explained that he arrived at that conclusion because after the accident the pursuer
continued to present with chronic pain in her arm and her leg with no history of doing so
prior to it. Whilst he noted that before her accident she had presented with a variety of
symptoms, that had not included chronic pain. He also took account of what he understood
the ongoing impact had been for the pursuer both at home and at work, giving the examples
48
of her being unable to lift her right arm over the horizontal level, being unable to do
washing, having reduced strength in her right hand, having difficulty in lifting things in
shops with her right hand, being unable to go cycling, lift boxes or drive longer distances.
[130]
In cross-examination Dr Stewart agreed that irrespective of the accident the pursuer
would have continued to present with varying somatoform symptoms, since her underlying
condition had not been treated. When asked to consider whether her disorder had been
exacerbated, or whether it was just that the focus for her symptoms had changed, he
displayed the start of a tendency to avoid engaging with difficult questions. When pressed
on this point he conceded that he found it hard to separate the two concepts. He repeated
his view that the difference between her pre and post-accident circumstances was that she
now spoke about pain affecting her right leg and arm which led to disability at home and
work which she hadn't mentioned before. He agreed that in arriving at his view he had
accepted the pursuer's account of her complaints and their persistent nature at face value.
[131]
In light of his evidence counsel for the defender took Dr Stewart through the
pursuer's medical records in order to demonstrate that the first complaint of right leg pain
was made in 2020. At this stage Dr Stewart's position seem to modify, and he responded by
saying that the pursuer persisted in her complaint of pain which fluctuated and she was
never pain free. At the conclusion of this lengthy exercise Dr Stewart was reminded of his
initial explanation for his view that her condition had worsened, namely that she presented
with persistent chronic pain in her arm and leg. On being asked if that remained his
position he gave a lengthy and unfocused response which failed to address the question .
When this was pointed out to him by counsel he came to accept that the pursuer's account of
presenting with persistent pain was not reflected in the records canvassed with him. As he
put it himself: "If you take what she told me against the GP records they don't add up."
49
[132]
On then being pressed as to whether he maintained that the evidence of the
pursuer's whole medical records supported an account of persistent chronic pain affecting
the pursuer's right arm and leg he acknowledged that they did not.
[133]
Despite this, he maintained his view that the pursuer's condition had been
exacerbated. In explaining why, he appeared to rely on the account as given to him by the
pursuer of constant pain and the impact on her domestic and work life which she explained
this had caused. It should be noted in this context that Dr Stewart understood that the
pursuer was able to continue to work because adjustments were made for her and she no
longer did the same job. He also understood that she was able to work from home resulting
in fewer symptoms being present.
Professor Carson
[134]
Professor Carson identified the concerns which arose in his mind out of his
consultations and examination of the pursuer which are referred to at paragraphs [113 and
114] above. He explained that incompatibility between described disability and observed
disability can inform whether a complaint is genuine or not. He also explained that he was
interested in obtaining an overall picture of how the pursuer had coped at work because
assessment of disability was a complex issue which benefited from having an understanding
of the wider picture. The pursuer's work records indicated that she was managing her work
and was achieving her "stretch targets". He treated these as positive indicators.
[135]
Having conducted an examination of the pursuer's medical records
Professor Carson's view was that, in essence, the complaints which the pursuer now makes
have all been made in the past. In particular it seemed to him that prior to the accident she
had protracted problems with her knees, wrists and limbs. In his view, there was nothing in
50
the medical records which could genuinely be said to be new and not pre-existent and he
could see nothing in her records to support the view that her pre-existing somatic symptom
disorder had been made any worse by the accident. The way in which he approached this
question was set out in his supplementary report at page 14 where he explained:
"I think if one was simply to read her case records without knowing the accident
date, one would struggle to spot any worsening of symptoms; which is my usual
thought experiment in order to answer such a question. I certainly could not see a
difference in terms of overall rate of presentation and general extent of total bodily
symptomatology."
[136]
In his second supplementary report, after his in-person examination of the pursuer,
Professor Carson reported that he still struggled to see her presentation as being markedly
different from the presentation recorded in her medical records over a prolonged period of
time. He concluded by stating:
"I would acknowledge it is possible that an accident has linked with a stepwise
deterioration in the extent of her somatoform symptoms, but I cannot really find any
evidence to support that other than her personal testimony hence why I say her
reliability is so important. Even within her work performance, it would appear that
she has had pay rises and met her `stretch' targets, and as noted the General Practice
records do not backup a picture of substantial change."
[137]
Professor Carson explained that within somatisation disorder, the more severe form
of the condition which he considered the pursuer to be nearer, the focus of the patient's
symptoms is always changing. He observed that before her accident the pursuer did not
have the same symptoms all of the time, they varied. It is in the nature of the condition that
the symptoms will move. The problem is in the brain and it depends where the attentional
spotlight is at any given time. His evidence, with which Dr Stewart agreed, was that it was
not possible to predict what area of the body will be the focus of somatic symptoms at any
given time.
51
[138]
In cross-examination Professor Carson was challenged on whether he had
misunderstood what the pursuer had told him about working from home and about her
salary deductions (as mentioned in paragraph [85] above). However none of his analysis or
reasoning was challenged. The only contention advanced was that other evidence, from
perhaps the pursuer's husband or work colleagues, which demonstrated that her abilities
post-accident were diminished might require to be taken into account in determining
whether there had been a deterioration in her somatoform condition. His response to this
was that he would need to understand what any such witness thought was wrong with the
pursuer and in general he would be looking to take account of hard evidence rather than a
subjective view.
Conclusions
[139]
The question of how to assess the evidence of these two expert witnesses is
intertwined with the assessments which I have made as to the import of the other evidence.
[140]
I am unable to give effect to Dr Stewart's evidence on the issue of exacerbation.
Generally speaking, he had difficulty in addressing the issues raised with him in cross-
examination about this issue. Looking at the question in more detail, the initial premise
which underpinned his view that the pursuer's condition had worsened was flawed. She
had not complained of persistent pain in her leg since the time of the accident. Having
accepted this Dr Stewart did not appear to re-assess what his view ought to be, nor did he
provide any explanation of what had caused the pursuer's leg pain to manifest itself.
[141]
His modified position that the pursuer had persisted in her complaint of pain and
was never pain free is not supported by the evidence as I have assessed it to be. Nor, as he
52
accepted, is it supported by the medical records. His opinion was dependant on there being
reliable evidence of constant rather than intermittent symptoms of pain .
[142]
Furthermore, I do not accept his assessment that the pursuer had no history of
presenting with chronic pain in her arm or leg. He did not actually explain what he meant
by the term "chronic" but I have assumed that he used it in the same sense as
Professor Carson, meaning a complaint made over more than six months duration. I
therefore do not accept the contention advanced in closing submissions that the pursuer has
developed new somatic symptoms of pain in her right side. In any event, the assumption
that a new symptom equals an exacerbation is misplaced given the evidence that it is in the
nature of the condition that symptoms develop in different parts of the body unpredictably .
[143]
Dr Stewart's assessment is also undermined by the extent to which he proceeded
upon an untested acceptance of the information given to him by the pursuer. As set out
earlier, there were good reasons for treating aspects of the pursuer's account with caution.
Apart from these general concerns, Dr Stewart was wrong in thinking that adjustments had
been made for the pursuer at work and wrong in thinking that she continued to work from
home to any real extent. It was not at all clear why he thought that the pursuer had
difficulty in driving longer distances or, for that matter, what he meant by this. As
mentioned earlier, there was no evidence that the pursuer had missed or been unable to
travel to any of the company meetings. The only evidence which was given about distant
meetings came from Mr Lee who mentioned that quarterly meetings had taken place in
Alfreton in the Midlands after he became regional manager. He explained that he
understood the pursuer travelled to these meetings the night before. No evidence was given
as to the distance involved but it is self-evident that a journey to the Midlands from Selkirk
would be a lengthy one.
53
[144]
I am not sure what Dr Stewart understood in thinking that the pursuer was unable to
lift her right arm over horizontal, as it was not canvassed with him. In the video recording
of 12 August 2021, during the course of the lengthy discussion mentioned, she can be seen
adjusting her hair on the top area of her head and removing and replacing her glasses from
the top of her head, all with her right hand. She also had no apparent or described difficulty
in attending to shopping with her right hand as seen in the video recording of 13 August.
[145]
The consequence of this decision would be that the pursuer has failed to establish the
essential element of her case. However, I am prepared to go further and to accept the
assessment set out in the evidence of Professor Carson. In my view he was correct in
concluding that there was nothing in the pursuer's medical records post-accident which
could genuinely be said to be new and not pre-existing. His assessment that there was no
difference in terms of overall rate of presentation and general extent of total bodily
symptomatology seemed to me to be broadly accurate. The test which he applied of
hypothetically assessing the medical records without knowing the date of the accident
seemed to me to be instructive and useful.
[146]
Neither Professor Carson's approach nor his assessment was undermined in cross-
examination. He had in fact taken some account of the pursuer's ability to perform at work.
In assessing what to make of the points relied upon in his cross-examination I have taken
account of the import of the evidence of the pursuer's husband and work colleagues as I
have held it to be.
[147]
Overall, Professor Carson was an expert witness of impeccable standing who gave
cogent and impressive evidence on a well-informed and reasoned basis. For the reasons
which I have set out I accept his evidence that the pursuer's pre-existing somatoform
symptom disorder has not been exacerbated.
54
[148]
Some further points arising out of closing submissions by counsel for the pursuer
may best be mentioned. No submissions were made concerning the pain and limitation
which the pursuer had complained of concerning her left leg and knee. Throughout the
evidence, and in submissions, I assumed it was accepted that these issues were due to the
osteoarthritic changes identified and were not connected in any way to the accident . No
submissions were made as to how the pursuer's complaints of pain and limitation in her
right leg could be seen as constituting an aggravation caused by the accident if I was to
accept the proposition that these somatoform symptoms only commenced in around early
2020.
[149]
Attention was drawn to the evidence given by Mr Mason of the pursuer having
dropped a parcel. As counsel correctly identified, Professor Carson had explained in
evidence that dropping things was a common feature of somatic symptom disorder . The
dropping of the parcel can be accepted as an adminicle of evidence going to demonstrate
that the pursuer suffered from ongoing somatic symptom disorder. It does not however
demonstrate the exacerbation of a pre-existing condition.
[150]
Attention was also drawn to the evidence of abdominal pain issues suffered by the
pursuer in the early part of 2018 and which it was said she attributed to "heavy" pain
medication. I was invited to conclude that the pursuer had been prescribed opiate based
medication between October 2017 and January 2018 and to accept the evidence of Dr Stewart
that opioid analgesia could be associated with side effects including constipation. Since no
organic cause was identified for these 2018 issues it was submitted that this was another
somatoform symptom and should be treated as being attributable to the accident . I rather
doubt whether there is any basis in the record for this proposition but I cannot give effect to
it in any event. The evidence as to the extent to which, and when, the pursuer was
55
prescribed with opiate based analgesics was vague and confusing. Nor was there any
acceptable evidence that any of her abdominal issues were caused by any prescribed
medication. This episode, along with the subsequent similar episode in 2019, did both
appear to be the consequence of somatoform symptoms but were examples of the ongoing
symptoms of this sort which had been present for years.
[151]
Counsel also presented a submission based on re-attribution. She suggested that if
her primary submission was not given effect to the court could nevertheless conclude that
the pursuer's accident had caused a re-attribution of her somatic symptom disorder to new
areas in a chronic way. I do not consider that the submission fits with the concept of re-
attribution as described by Professor Carson. The areas of pain which the pursuer
complained of were not new areas. As Professor Carson explained, patients with
somatoform symptom disorder sometimes attribute their symptoms of pain to a particular
event and refuse to accept that these same symptoms were present before that point.
The third question - has any exacerbation of the pursuer's condition been caused by the
pursuer's accident
[152]
This does not arise in light of my other conclusions. However this would not have
been a straightforward question to answer. Whilst it was accepted that trauma could trigger
a deterioration in a patient's somatoform condition it was plain that many other factors
could have the same effect. As Professor Carson explained, difficulties at work, feelings of
being overlooked, problems with childcare or anything else that could produce human
emotion could trigger a deterioration in a somatoform condition. In this context it may be
worthy of note that the pursuer mentioned to Dr Stewart at both of her meetings with him
that she was stressed by her involvement in the ongoing litigation and concerned that her
56
decision to pursue compensation might result in the defender declining to renew the rental
agreement on her cottage.
[153]
Furthermore, Professor Carson expressed some doubt as to whether the sort of
accident which the pursuer suffered could have led to a deterioration given that it was a
relatively minor accident. In giving this evidence he drew a contrast with other examples of
patients he had encountered who suffered from somatoform symptoms as a consequence of
injuries themselves likely to lead to long-term organic pain. Separately, Mr Lee explained
that there had been a lot of pressure on service centre managers and he had encouraged the
pursuer to obtain further qualifications.
Damages
[154]
The pursuer sought an award of damages under four heads:
1.
Solatium
2.
Loss of earnings
3.
Pension loss, and
4.
Necessary services
1.
Solatium
[155]
The submissions presented on behalf of the pursuer under this head assumed a
finding that she had suffered an exacerbation of her pre-existing somatoform symptom
disorder and would be entitled to an award in respect of psychiatric injury. Reliance was
placed on the 16
th
Edition of the Judicial College Guidelines Chapter 4 (A) Psychiatric
Damage Generally (b) Moderately Severe, showing a range of awards between £17,335 and
£49,840 . Relying on the case of Josefa De Oliveira Malvicini v Ealing Primary Care Trust [2014]
EWHC 378 an award in the region of £40,000 was said to be appropriate.
57
[156]
Counsel for the defender submitted that an appropriate award for the relatively
minor injuries for which liability was admitted would be in the region of £1,245. This was
vouched by reference to the Judicial Studies Guidelines Chapter 14 in the subcategory of
minor injuries that settle within three months and the cases of Manton v Commissioner for
Northern Lights, McEwan and Paton chapter CN 30-02D, Duffy v Diamond, Kemp & Kemp
M1-027.1 and Grubb v Finlay [2017] CSOH 81.
[157]
The witness best qualified to give evidence as to the nature and extent of the physical
injuries sustained by the pursuer was Mr MacLean. He described these as being simple soft
tissue injuries to her right leg with bruising and contusions, a simple soft tissue contusion to
her shoulder and a soft tissue injury to her wrist and hand. He would have expected the
symptoms arising from the physical injuries to have settled within a matter of weeks.
[158]
Taking account of Mr MacLean's evidence and of the evidence as to the treatment
received by the pursuer shortly after her accident, I consider that the submission presented
on behalf of the defender does not adequately reflect the value to be attached to the injuries
caused directly by the accident. I note that the Judicial College Guidelines, 16
th
edition
Chapter 7 Section H subparagraph (f), provides a range of between £3,208-£4,308 (after
adjustment) for minimally displaced wrist fractures and soft tissue injuries necessitating the
application of plaster or a bandage for a matter of weeks and a full virtual recovery within
up to 12 months or so. The pursuer's wrist injury might be thought to fall at the bottom end
of this range and taking account of the other bruising which she sustained a total sum of
£4,200 would seem to me to be appropriate. This also fits with the larger sum of £6,500
awarded to the claimant in the case of Pepper v Gibson Kemp & Kemp G2-040.1 who suffered
injuries which were similar to but worse than those suffered by the pursuer and which had
some similar consequences stretching over a lengthier period of time.
58
[159]
Had I concluded that the pursuer had established the principal element of her case,
namely that her condition had been exacerbated to the extent that she suffered from constant
pain in different parts of her body, I would have found the question of assessing solatium to
be a very difficult one. In the first place, the case relied upon by counsel for the pursuer
concerned a claimant who suffered far more serious symptoms than those contended for on
behalf of the pursuer. Secondly, there was no exacerbation of an underlying condition in
that case. This is where the greatest difficulty in quantification arises. The undisputed
evidence was that the pursuer would have continued to present with somatoform symptoms
causing pain, even had the accident not occurred. Her diagnosis placed her at the more
severe end of the condition. Counsel for the pursuer was unable to offer any suggestion as
to how I should assess the extent to which the symptoms described by the pursuer were
different or worse than they would have been in any event, even had the accident not
occurred. Counsel's submissions took no account of the proposition that the pursuer's right
leg symptoms only manifested themselves some 2 years after the accident and that by March
2020 she was describing her right ankle as being the worst of her problems. No method of
linking these symptoms to the accident was suggested, beyond simply accepting the
pursuer's evidence of constant pain throughout. There was no suggestion as to how this
might be factored into an assessment of solatium if treated as a reflection of the pursuer's
underlying condition rather than an exacerbation of it. Neither counsel had been able to
identify any case in which damages had been awarded on the basis of an exacerbation of an
underlying somatoform symptom disorder.
[160]
Had I been required to do so I could only have approached matters with the broadest
of brushes. I would have assessed the symptoms relied upon by the pursuer and their
consequences for her as being no more than half as serious as those in the case of Josefa De
59
Oliveira. I would then have assessed the effect of the pursuer's pre-existing condition as
accounting for half of her symptoms. The consequence would have been a net award of
£10,000 for psychiatric injury, three quarters of which I would have allocated to the past.
2.
Loss of earnings
[161]
The pursuer lost no wages as a consequence of her accident but it was contended
that, had it not been for her the accident, she would have been promoted. This proposition
falls away in light of my other findings. It did not seem to me that the proposition was well-
founded in any event. The pursuer gave evidence that she was keen to be promoted to the
position of regional manager. The evidence was that there were eight regional managers
within the company. There was no vouching of any post having becoming available since
the pursuer's accident. The number of service centre managers available to apply for any
post which might become vacant was not identified.
[162]
More importantly though, Mr Lee gave clear evidence that he had been promoted
from the position of service centre manager to that of the pursuer's regional manager,
replacing in Mr Kernahan, at a point in 2017 prior to her accident. The pursuer's evidence
took no account of this occurrence. She appeared to think that Mr Kernahan's position only
became available after her accident. However Mr Lee gave clear evidence about being
contacted following her accident and of the steps which he required to take to make sur e her
duties were covered in the Carlisle depot. The implication would appear to be that the
pursuer did not apply for promotion when her previous line manger's post became
available. None of this was canvassed or explained in evidence. Having been offered a
form of promotion to service centre manager at Livingston there was no meaningful
60
explanation as to why she declined this offer. What this demonstrates is that the pursuer's
employers were prepared to promote her despite what she thought of as her limitations.
3.
Pension loss
[163]
The submissions on pension loss were all predicated upon the assumption that the
pursuer would have obtained promotion of some sort, either to the better paid position of
service centre manager at Livingston or to the role of regional manager but for her accident.
This head of claim also falls away for the same reasons as does the claim in relation to
promotion.
4.
Necessary services
[164]
The evidence as to services provided to the pursuer by her husband and her parents-
in-law was, for the most part, vague and contradictory.
[165]
Both the pursuer and her husband gave evidence to the effect that his parents
provided help in the aftermath of the pursuer's accident by assisting with housework and
cooking. Each also mentioned that the pursuer's father-in-law had taken their son to school,
but it became clear that this was something he had been doing on a daily basis since before
the pursuer's accident in any event. This was necessary as the pursuer left home at around
6.00am and her husband started work at 8.00am.
[166]
Looking to the period of eight weeks after the accident, which would go to just
beyond the point at which the pursuer's cast was removed, the pursuer's evidence was that
both of her parents-in-law assisted for around 2 hours each day and her husband assisted
for 4 hours a day. At this time he was helping her to shower and with other aspects of
personal care, such as brushing her hair in addition to attending to household tasks.
61
[167]
Mr Cossey's evidence was that his parents assisted for perhaps 2-3 hours a week and
that he assisted his wife for around 3-4 hours each week. These estimates are significantly
different from that provided by the pursuer.
[168]
There was no evidence which would enable me to understand what services the
pursuer's parents could have been providing to the extent of 28 hours each week. It seems
to me that to the extent that any evidence was led about what services were being provided,
either by his parents or by Mr Cossey, his estimates of time are the more reasonable ones.
[169]
Although the pursuer was asked in a general way about ongoing assistance provided
by her husband's parents through 2018 and 2019, it was impossible to understand what
assistance she was claiming they provided and for how long. Mr Cossey's evidence
concerning some aspects of this period simply made no sense. For example, he suggested
that his father continued to drive the pursuer to work and also took their son to school. He
could not have done both on the same day given the timing and distances involved but
additionally there was no suggestion from the pursuer that her father-in-law drove her to
work other than over a short period of time when she first returned to work. There would
be no reason for him continuing to drive the pursuer to work in 2018 and 2019 and none was
suggested.
[170]
The pursuer's evidence as to the assistance provided by her husband beyond the first
8 week period and into the following years was also unclear. She explained that he was
preparing meals and doing domestic duties, such as washing and helping to look after their
son. In terms of time, she considered that these duties took him in excess of an hour every
day and, as far as I could understand it, this seemed to have remained the position until the
proof. His evidence was equally vague as to what ongoing assistance he provided and with
what frequency.
62
[171]
It seemed to me that the evidence as to assistance provided by Mr Cossey had to be
viewed in the context of a working couple with a teenage son where the husband would be
expected to share household duties in any event. This would be consistent with the
evidence given by Mr Cossey who explained that before the accident he and the pursuer
shared all of the housework duties 50/50. The extent to which he was explaining that he
provided what would qualify as necessary services was therefore unclear.
[172]
The pursuer's claim for necessary services also included an element to reflect the
times when her father-in-law drove her to work. This was perhaps the most uncertain area
of all in this chapter. The evidence of the pursuer, her husband and her work colleague
Mr Masson, combines to establish that the pursuer was on occasions driven to work by her
father-in-law. The evidence as to the frequency with which that happened, and during
which period, was both confusing and contradictory. The evidence of Mr Masson would
suggest that this occurred on some occasions prior to the pursuer's cast being removed. The
most reliable aspect of the pursuer's testimony as to when she started to return to the
Carlisle depot was after the first 4 weeks. That account chimed with what Mr Masson said.
Her evidence was that her father-in-law drove her to work in this period for about one day a
week. Her husband explained that his father would wait for two to three hours in Carlisle
until the pursuer was ready to be driven home again.
[173]
Accepting as I do that that the process of thinking back over a number of years to
estimate how much time was spent providing assistance to the pursuer, and on what tasks,
is a difficult one, it nevertheless remains for the pursuer to establish her claim on the balance
of probabilities. The submissions for the pursuer as to how the claim for necessary services
should be quantified did not identify which parts of the often conflicting evidence they were
based upon. Nevertheless, taking account of the extent of the soft tissue injuries sustained,
63
and Mr Maclean's evidence as to the time required for recovery, I am prepared to proceed
upon the basis that the pursuer's husband and parents-in-law did provide assistance such as
would fall within the definition of necessary services up until the point at which her cast
was removed. I consider it would be appropriate to consider this to be a period of 8 weeks.
[174]
I therefore calculate this aspect of the pursuer's claim as follows. For the period of
eight weeks after her accident the pursuer's parents-in-law provided necessary services to
the extent of 3 hours each per week giving a total of 48 hours. Her husband provided
necessary services for a period of 3 hours each week giving a total of 24 hours. In addition,
the pursuer's father-in-law provided the necessary service of driving her to work one day
each week for 4 weeks, a round trip of 2 hours and 20 minutes' drive and spent about
3 hours waiting for on top of this. This amounts to a total of 5 hours and 20 minutes on four
occasions rounded up to a total of 22 hours. In terms of valuation counsel for the pursuer
suggested an hourly rate of £9 whereas counsel for the defender suggested the then national
minimum wage rate of £7.50 per hour. I am content to adopt the suggestion made by
counsel for the pursuer. This brings out a total award for services of £846.
[175]
A claim was also advanced under section 9 of the Administration of Justice
(Scotland) Act 1982 on the basis that the pursuer was no longer able to take her wheelchair
bound mother out for visits as she had previously or to care for her over a period of a few
days to allow her father some respite. A lump sum award of £10,000 inclusive of interest
was suggested as being appropriate. Given that I have rejected the pursuer's case on
exacerbation and accepted that the injuries caused by the accident ought to have resolved
within a matter of weeks there is no basis upon which this award can be made. The same
applies to the small claim for expenses in relation to miscellaneous items purchased by
Mr Cossey.
64
Award
[176]
For the reasons explained above, the total award made for solatium is £4,200, all of
which is allocated to the past. Interest will run on this sum at 4% per annum from the date
of the accident. In addition, a sum of £846 is awarded in respect of necessary past services.
Interest will also run at 4% per annum on that sum from the date of the accident.
