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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCue (Ap) v North Lanarkshire Council [2006] ScotCS CSOH_80 (19 May 2006)
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Cite as: [2006] ScotCS CSOH_80, [2006] CSOH 80

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 80

PD1670/04

OPINION OF LORD GLENNIE

in the cause

NEIL McCUE (A.P.)

Pursuer;

against

NORTH LANARKSHIRE COUNCIL

Defenders:

________________

Pursuer: Clancy, Q.C., McBrearty: Allan & McDougall & Co, S.S.C.

Defenders: Hanretty, Q.C., Olson: Simpson & Marwick, W.S.

19 May 2006

Introduction

[1] In this action the pursuer avers that at about 8.45 pm on 16 August 2002 he was walking home along a footpath near Allanton Grove, Wishaw, when he lost his footing and fell due to the poor condition of the footpath. He contends that the footpath consisted of paving slabs laid on the ground and that there were irregular gaps between the paving slabs, and that the slabs were uneven and in some cases cracked. As a result of his fall he claims to have suffered loss, injury and damage.

[2 ] The defenders had possession and control of the footpath. Evidence was led as to the condition of the path and as to complaints having been made on a number of occasions to the defenders. In light of that evidence it was accepted on behalf of the defenders who, in the event, did not call any evidence, that if the accident happened as alleged and as a result of the poor condition of the path, then they were liable. However, they put in issue the pursuer's account of how he fell. They pointed to inconsistencies in his account, both contemporaneously with the accident and in evidence. They said, and this is obviously correct, that it should not be assumed that simply because he fell whilst on the path, which was admittedly in poor condition, that he fell because of the poor condition of the path. They submitted that the pursuer had failed to prove causation.

The accident

[3 ] The general narrative of the events leading up to the fall was not in issue. The pursuer, who was just over 70 at the time of the accident, had left his house in the morning and gone, with others, by coach to the golf club near Peebles, a journey of about an hour. After the golf there had been drinks, a meal and, during the meal, a presentation. The coach returned to Wishaw some time after 8.00 pm, and the pursuer walked with a friend of his, Mr Hynds, back towards his house. Mr Hynds accompanied him as far as Rowan Street, whence the pursuer walked on alone, crossing the road and starting along the path towards Allanton Grove. That was the natural way to get to his home in Murdostoun Gardens. He was pulling or pushing his golf trolley and in one hand he was carrying a bag containing his golf shoes.

[4 ] There is a dispute as to precisely what happened next. The pursuer told me that he was pulling the golf trolley with his left hand and had the bag containing his shoes in his right. As he was proceeding along the path he saw two girls coming towards him. He moved to his left to make room for them. After the girls had passed, he moved back towards the centre of the path. He remembered falling down and smashing his forehead on a broken paving stone. He said that he lost consciousness. His explanation for the fall was that he caught his foot on one of the overlapping broken slabs, though I did not take this to be based on a clear recollection and he conceived of the possibility that he had tripped where there was a gap between the slabs. He explained that some of the paving slabs had slid to the side and left gaps. I note at this stage that I was shown photographs taken at various times either side of the accident which confirmed that this was the case over a significant stretch of the path. He said that he still had his golf shoes in the bag in his right hand and was still holding the trolley in the left. But he could not get up and walk away. He said that his next recollection was some five days later lying in bed in the Southern General Hospital in Glasgow. He had no recollection of his daughter coming to the scene about five or ten minutes after his fall. Indeed he had no recollection at all of being at the scene after his fall. He was insistent that he did not move after the fall before his daughter came.

[5 ] The pursuer was cross-examined about the details of his fall and the differences between the account he gave in evidence and various accounts that he had given, or was alleged to have given, on other occasions. For example, his account of smashing his forehead on a paving stone was at odds with earlier accounts he had given. He was cross-examined also on the amount of alcohol that he had had to drink during the day. He was shown entries in hospital records in which various medical practitioners with whom he came into contact on being taken to hospital had made their own assessments that he had been drinking heavily. It was put to him that, when walking back from the bus to his home, his balance or his concentration was affected by alcohol, that he was not paying as much attention as he would normally pay, and that this caused or at least contributed to his fall. The pursuer maintained, as he had in his evidence-in-chief, that all he had had to drink that day was a can of lager on the bus to the golf course in Peebles in the morning, a large whisky and a pint of lager before and during the meal at the hotel in Peebles to which they all repaired after the golf (sometime after about 5.00 pm), and a small whisky during the prize-giving at the end of the meal before the bus took them back to Wishaw. He did not accept that drink played any part in his fall. No other witness was called who could speak to having seen the fall.

[6 ] The two girls out of whose path he had moved just before the fall had, according to other witnesses, tried to help the pursuer when he was on the ground. It is not known how much of the fall they saw, since it had not been possible to trace them. Nonetheless, other witnesses were able to fill in some of the circumstantial details. Mr Hynds spoke to the day out at the golf. He was teetotal. He thought that there had been no alcohol consumed on the bus. He agreed that various members of the party were drinking alcohol at the hotel in Peebles, but he could not say what the pursuer drank there. He was certain that there was nothing unusual about the way the pursuer walked or spoke as they walked together back from the bus stop to his home. As far as he was concerned, there was no indication that the pursuer had drunk too much. Joe McLaughlin gave evidence that he was out, with his wife, walking his dog that evening. He walked behind the pursuer for some minutes, before their paths diverged. He had the impression that the pursuer looked alright, in other words steady on his feet. Shortly after their paths had diverged, he heard a bang and a scream. He ran to the place where the pursuer had fallen and found the two girls trying to lift him. The account he had from them was that the wheel of the pursuer's golf trolley had caught on the slabs, or in the gap between the slabs, and the pursuer had gone over the top of his golf trolley and banged his head. On this scenario, the pursuer was pushing his trolley, not pulling it. On being shown photographs of the path, Mr McLaughlin indicated that he thought that the path where the pursuer fell was in a worse condition than was shown in those photographs. He laid the pursuer flat on his back and spoke to him. He could smell alcohol on the pursuer's breath, but the smell was not that strong. Mr McLaughlin wanted to call an ambulance but the pursuer just wanted to go home. It was the pursuer who told him where he lived. A young man, called Stewart, and his girlfriend came by and he and Stewart carried the pursuer to the pursuer's home. On this evidence it appears that the pursuer did not black out after his fall as he himself thought was the case.

[7 ] Neil McCue, the pursuer's son, said that he received a phone call about the accident when he was at his home watching the television. He drove to his parents' home and found his father lying on the couch there. He said that he found his father fairly coherent and did not think that he smelt of alcohol. But within a few minutes there was a deterioration in his father's condition and his colour changed. The next day he took photographs of the path, particularly of the spot where his sister Patricia had told him his father had fallen. Mrs Jones, who lived near the path, spoke to the position on the path where the pursuer fell. Mrs McCue, the pursuer's wife, also gave evidence. I shall refer to her evidence in more detail at a later stage in this Opinion, but so far as the immediate events are concerned I simply mention her evidence that she did not smell alcohol on his breath.

Decision on liability and contributory negligence

[8 ] The pursuer impressed me as an honest witness and I thought his evidence was reliable as to the important aspects of how the accident occurred. I accept his evidence as to the amount of alcohol that he had to drink that day. I also accept his evidence that he was not drunk. Nor was his balance or attention significantly and adversely affected by the effects of the alcohol he had consumed. The evidence from Mr Hynds and Mr McLaughlin corroborated, to some extent, the pursuer's case that he was walking normally and was not affected by alcohol. I therefore reject the submission for the defenders that the accident was caused or contributed to by the pursuer having been drinking.

[9 ] There was some uncertainty in the evidence as to precisely where the accident happened. It is not possible, on the available evidence, to determine which particular paving slab may have been the cause of the pursuer falling. But I do not think that that matters. The pursuer was relatively fit and steady on his feet. The path was in a seriously deteriorated state, and there were many gaps and irregularities in the surface on which the pursuer could have fallen even though he was paying attention. I see no reason to think that he would have fallen but for the defects in the path. Nor do I think it matters whether he tripped in the sense of his foot catching in an irregularity in the surface, or whether the accident was caused by the wheel of his golf trolley catching in such an irregularity. The pursuer's case on record is that at a particular point on the pathway "he lost his footing and fell". That averment is wide enough to cover both possibilities. But in case it should be relevant hereafter, I find on balance of probabilities that he tripped or lost his footing and fell as a result of the contact between his foot and an irregularity in the path.

[10 ] As I have indicated earlier, the defenders accepted that if the accident happened as alleged and as a result of the poor condition of the path, then they were liable. I am satisfied that the pursuer has made good that part of his case. It follows from my finding as to the part that alcohol played in the incident that I also reject the plea of contributory negligence.

Quantum

[11 ] During the course of the proof the parties tendered a Joint Minute recording agreement on all aspects of quantum except for solatium. The figure agreed was £30,000.

[12 ] There was no dispute as to the physical injury suffered by the pursuer. He suffered a hyperextension neck injury with spinal cord damage. There was also forehead bruising and laceration and bilateral periorbital haematomas (i.e. black eyes). These latter two categories were short term injuries, in contrast to the hyperextension neck injury and the spinal cord damage, which were significant.

[13 ] Nor, as I understood it, was there any dispute as to the discomfort he suffered in the immediate aftermath of the accident. He was taken to Wishaw General Hospital and then, on 20 August 2003, transferred to the Queen Elizabeth National Spinal Injuries Unit at the Southern General Hospital. He stayed there until discharged in February 2004. After admission to Wishaw General Hospital, he remained confused and unwell for several days. He required multiple blood sampling and was on a drip for a couple of weeks. For about two weeks he was fed through a tube. For the whole of his time in hospital he required to have his bowels manually excavated in bed. He was allowed to sit up out of bed for the first time on 30 August 2002, with his neck supported in a surgical collar. He underwent therapy and started to recover some strength in his limbs. He had to use a wheelchair and began to relearn walking. Over the course of the period of five months or so that he was in hospital, the amount of activity increased, but it was clearly hard work for the pursuer. He underwent occupational therapy to practice dressing, washing and kitchen work. It was agreed by counsel in a Joint Minute that since the pursuer's discharge from hospital he had required to take laxatives in order to maintain regular bowel movements, he had suffered and continues to suffer from occasional faecal incontinence and he has required to use a catheter twice daily in order fully to empty his bladder so as to avoid stagnant urine and infections. It is also agreed that the pursuer suffers and will continue to suffer a risk of kidney damage.

[14 ] In terms of prognosis, a report from Dr McLean, a consultant in spinal injuries who attended the pursuer soon after the accident and who gave evidence in court, indicates that the pursuer is unlikely to regain any further strength and is likely to have life long mild weakness on the right with increased tone. In terms of mobility, Dr McLean reported that the pursuer can walk without aid for one or two kilometres on the level but his pace remained slow. His right leg tires and drags after prolonged exercise. He had managed to get about without using his wheelchair and could climb stairs unaided, albeit slowly. He continued to suffer moderate pain down his right arm and this was likely to continue, albeit the pain would be dulled by painkillers.

[15 ] This summary of the pursuer's physical condition was effectively confirmed by the pursuer in his evidence and also by his wife in hers. In respect of his physical injuries, I formed a favourable view of the pursuer's evidence. It seemed to me that he was, if anything, underplaying the difficulties that he continued to experience.

[16 ] However, the position as regards non-physical impairment was more controversial. Dr McLean described the psychological upset caused to the pursuer. During the early part of his hospital stay, he suffered from major depression and low mood. According to him, the pursuer was prescribed antidepressant tablets and his mood improved greatly. However, by the time Dr McLean saw the pursuer in June 2005, depression had set in again. Dr McLean's assessment was that the pursuer had severe depression.

[17 ] The pursuer produced evidence from Dr Derek Brown, a consultant old age psychiatrist. His evidence in his report was that the pursuer was suffering from a moderate to severe depressive illness, which had so far been unresponsive to medication and was having a major effect on the quality of his life. He considered that the severity of his injuries, and the impact those injuries have on the quality of his life, were the precipitating factors for that depression. He thought the prognosis for recovery was limited. He thought the resolution of the court case, which was undoubtedly causing stress, was unlikely to lead to the pursuer experiencing a full recovery. He considered that the pursuer's mental state continued to deteriorate despite the full package of psychiatric care he was receiving. In his evidence-in-chief he expressed the hope that there might be some improvement in the pursuer's symptoms over the next few years, particularly with cognitive behaviour therapy, and that the impact on his social life would reduce. If this did happen, the pursuer would still have a mild depression. His best guess was that any improvement would still leave the pursuer's depression in the mild to moderate range. In this respect, Dr Brown's evidence was supported by the pursuer's own account of his mood and more particularly the account given by his wife.

[18 ] Dr Brown was not seriously challenged on his description of the depression from which the pursuer suffered. He was, however, cross-examined about the pursuer's medical history prior to the accident. This arose in this way. In the course of the pursuer's evidence he was cross-examined by reference to GP and hospital records. By a Joint Minute agreed between the parties, these were treated as evidence of their contents. The records revealed that, over the course of ten or twelve years prior to the accident, the pursuer had, at various times, been prone to excessive alcohol consumption, and had taken medical advice about it; had had seizures relating to such alcohol abuse; had suffered from depression and claimed sickness benefit for depression; had had epileptic seizures; and had suffered from tiredness, eyesight problems and pre-senile dementia. The references in the records were put to the pursuer in cross-examination. Somewhat surprisingly, he denied the truth of all of them. Indeed at one point in his evidence he said that his first visit to hospital was after the accident. His wife, in her evidence, also denied that he had ever suffered from any of these difficulties. He had always been the life and soul of the party, she said. Both of them in their evidence sought to give the impression of a fit, active and alert 70 year old man whose life had been altered catastrophically as a result of the accident. Although the defenders did not lead oral evidence, the reports and records were in evidence by agreement. I formed the view that the pursuer was simply wrong in his denial of his previous difficulties, and so was his wife. This conclusion did not cause me to have doubts about my finding, which I indicated earlier, that the pursuer was an honest witness. However, I came to the view that he was wholly unreliable about his state of health prior to the accident. I do not know why this was so or what explanation can be given for what might be regarded as a state of denial. It is not appropriate that I should dabble in amateur psychology.

[19 ] This left me with some difficulty in approaching the question of quantum in relation to the claim for solatium. At one point in the cross-examination an objection was taken on behalf of the pursuer. It seemed to the pursuer that the line in cross‑examination was going to the question of causation, and the defenders had no record for any case that the depression which the pursuer was presently suffering had a cause other than one related to the accident. In response, it was argued on behalf of the defenders that the point did not go to causation but rather to an assessment of the extent to which the pursuer's life was altered for the worse by the accident. The pursuer, it was argued, required to set up a pre-accident condition. The defenders were entitled to challenge that. I took the view that was correct and repelled the objection.

[20 ] During his cross-examination, Dr Brown was shown many of the medical records bringing out the problems which the pursuer had experienced over the years before the accident. In his report it was clear that the account that he had been given by the pursuer and his wife had not revealed any of these difficulties. He was quite properly pressed along the lines that, had he known of this previous history, his conclusions might well have been different. At the end of his cross-examination he was asked whether he knew what opinion he would have expressed if he had been aware of all those things. His response was that he had not had the opportunity of asking the pursuer about these matters and did not know what answers he would have been given or how it would have affected his opinion. The implication appeared to be that knowledge of these matters would have had some effect on his opinion. In re‑examination he recanted to some extent from this position, and insisted that knowledge of these background matters would not have affected his views on causation. In his submissions, Mr Hanretty, for the defenders, suggested that Dr Brown was an unsatisfactory witness in this respect. At the time Dr Brown gave his evidence I had some misgivings about it. But, having considered the matter again, I think he was entitled to say that knowledge about the pursuer's previous medical history would not necessarily have affected his views as to the cause of the depression from which the pursuer was now suffering. Accordingly, I reject this criticism of him.

[21 ] In the result, therefore, I accept Dr Brown's analysis of the depression from which the pursuer is suffering and will continue to suffer. But I also accept that prior to the accident, and over a period of years, the pursuer had suffered from a range of difficulties which call into question the assessment that this depression was inflicted upon a fit, active, alert and thoroughly healthy individual.

[22 ] It seemed to me that the proper way of dealing with this in terms of quantum was to identify a figure for solatium in the ordinary way and then to discount this to some extent. By reference to page 823 of McEwan & Patent on Damages for Personal Injuries in Scotland, Mr Clancy invited me to fix a figure for solatium at £70,000, of which £50,000 should be attributed to the past. Mr Hanretty invited me to fix a figure at £20,000 inclusive of interest. Both counsel invited me to take a very broad brush approach to the figure, having regard to the range of figures under the heading "neck injuries" at pages 823 to 824. It was agreed that I should look at the section on neck injuries rather than consider other sections dealing with depression. I do not think that it can be said that the injuries in the present case are at the severest end of the scale of the examples in those pages. I consider the appropriate figure for solatium to be £40,000. From this, I propose to deduct 20% to take account of the pursuer's prior condition which I have described. The net amount for solatium will therefore be £32,000 of which I will attribute £22,000 to the past. This has to be added to the agreed figure of £30,000, to which I have already referred. I shall add to that the sum of £3,080 in respect of interest on past solatium at 4% over a period of about three and a half years, resulting in a total of £65,080.

Decision

[23 ] I will therefore grant decree in favour of the pursuer in the sum of £65,080.

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