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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Downie v. Fife Council [2008] ScotCS CSOH_47 (19 March 2008)
URL: https://www.bailii.org/scot/cases/ScotCS/2008/CSOH_47.html
Cite as: 2008 Rep LR 101, [2008] ScotCS CSOH_47, 2008 GWD 10-186, [2008] CSOH 47

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OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 47

 

     

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD CARLOWAY

 

in the cause

 

BRENDA DOWNIE

 

Pursuer;

 

against

 

FIFE COUNCIL

 

Defender:

 

 

­­­­­­­­­­­­­­­­­________________

 

 

 

Act: LJ Milligan; Digby Brown SSC

Alt: McIlvride; Ledingham Chalmers

 

19 March 2008

 

1 Pleadings

[1] The pursuer is aged 40. She is employed by the defenders as a social worker. From June 2003 she was based in the defenders' office at 70 Stenhouse Street, Cowdenbeath. Her duties were desk based. She shared a computer with a colleague, but that computer was on her colleague's desk. The pursuer avers that she required to turn, stretch and twist her body to access the computer from her own desk. As a result, she developed a pain in her neck. The pursuer's claim for damages is based on the defenders' breach of, amongst others, regulation 11 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 3004), which requires workstations to be suitably arranged. The defenders do not contest liability.

[2] The pursuer avers that she consulted her general medical practitioner on 10 May 1994. Thereafter she was certified unfit for work until 25 October 2004. She continued, and continues, to suffer neck pain and was off again in December and January 2005. She required physiotherapy and assistance from her husband with household tasks. The pursuer also became unable to assist her husband in looking after his parents. The pursuer's claim is restricted to solatium and services. The defenders do not admit the nature and extent of the pursuer's injury and maintain that any ongoing symptoms she has are minimal.

 

2 Evidence - Lay

[3] The evidence was in short compass. The pursuer described working at her desk and experiencing pain in the left side of her neck, radiating across the shoulders and down her arms, especially on the left side. The pain was sharp, like a severe toothache. She had pins and needles down to her right elbow and throughout her left arm. She had been aware of the pain for about six weeks before visiting her GP on 10 May 2004. Initially, she had just gone for advice and self certified a short period of absence. She was prescribed pain killers, but the pain remained and she was eventually signed off for a total of six months. During this period, she underwent a course of privately funded physiotherapy at a cost of £120 for three sessions. She later had further physiotherapy on the National Health Service. The pursuer's mood became low as her condition persisted. For the first three months, her husband required to take over the shopping, cleaning, cooking and gardening. He also helped her with dressing and washing her hair.

[4] By about August, her symptoms were improving and she began reducing her medication. Her physiotherapist noted her as feeling that there had been a "big improvement". Although she could have returned to work at that time, her workstation had yet to be altered and she remained absent on medical advice until 25 October. She described the pain as having plateau-ed by the end of this period, but she still had pain in her neck and pins and needles.

[5] The pain, which took the form of a dull ache, remained the same for a year, until she was moved to an office in Dunfermline in November 2005. Her workstation there was also not suitable and the pain increased to the extent of her left arm going numb completely one day when she was driving. She was taking pain killers daily. She returned to work after an absence of two months. The pain remained and she undertook a third course of physiotherapy, which assisted temporarily. Unfortunately, in October 2006, she slipped on some steps and twisted her ankle. This resulted in a period on crutches and her pain increased once more for a time. By then, she was back in Cowdenbeath. However, she was able to visit China and thus managed two ten hour flights without significant difficulty. A further course of physiotherapy was completed in about October 2007.

[6] The pursuer maintains that her pain still subsists in the form of a steady, dull ache, and was, at the time of the proof, worse because of the stress caused by the court case. It has not improved over the last two or three years. Overall, the pursuer does not consider that she is working at her pre-accident capacity. She is slower and needs to move around from time to time. She avoids driving. At home, although she can do many things that she used to do, they take longer. Whereas she did most of the housework before, that is no longer the case. Her husband does almost all the cooking and cleaning. She is unable to do any heavy lifting, including some shopping, or any lifting above head height, such as decorating, which she previously did with her husband. She cannot help her husband in looking after his parents, in the way she had done prior to the onset of her condition. The pursuer describes herself as not the same person as she used to be. Her condition has had an adverse impact on her relationship with her husband, including the more intimate aspects of that relationship, although things have improved from their lowest ebb. She continues to take painkillers two or three times each week.

[7] The pursuer's husband, Douglas Downie, also works for Fife Council. He is the same age as the pursuer. Mr Downie recalled the problems which the pursuer had before being certified unfit for work and her condition thereafter. He described these as involving a pain in her neck and shoulder, becoming severe with numbness in her left hand and arm. Medication assisted but rendered her incoherent at times. He required to help her wash and dress in the initial months. He had to do all the housework, including the cooking, washing and ironing, whereas previously it had been shared. The ironing had taken three one hour sessions per week. The garden became neglected. Initally, Mr Downie would return home at lunchtimes to look after the pursuer.

[8] After her return to work, according to Mr Downie, he still did most of the housework and all the gardening and decorating. He still did all the ironing. Most of his evenings, prior to the pursuer retiring at about 10 pm, were and are taken up with housework. Cleaning takes two sessions per week of an hour or more. He has to do all the heavy lifting. He also does all the care work for his parents, which the pursuer and he had shared previously. This involves five visits per week, although his parents do live locally. Whereas the pursuer and Mr Downie used to walk for leisure, they do not do so anymore. If they go for a long drive, he does the driving. Mr Downie said that he still noticed when his wife was in pain. She continues to take painkillers. He thought that her job was quite difficult and but she had soldiered on. Emotionally, she was not as perky as she had been in 2003.

 

3 Evidence - Medical

[9] The pursuer's expert, consultant orthopaedic surgeon Ivan Brenkel, gave evidence on commission in advance of the proof. He had been a consultant for seventeen years at Queen Margaret Hospital, Dunfermline and the Victoria Hospital, Kirkcaldy. He saw the pursuer on 15 November 2005 (report 6/1), when he was also able to review the GP records (6/10 - agreed as such by joint minute no 18 of process). These showed that she had no previous neck problems. At the time of his examination, the pursuer was complaining of neck pain, worse on the left, radiating to both shoulders and sometimes down to her left elbow. The pain varied from toothache type to occasionally more severe. She described her strategies for avoiding aggravating the pain and her frustration at its persistence. On examination, Mr Brenkel found no localised tenderness or muscle spasm but her neck movements were restricted. She had no abnormal neurology (nerve root entrapment). X-Ray revealed a loss of some cervical curve (lordosis) due to muscle spasm, but nothing otherwise abnormal. He concluded that she had suffered a soft tissue injury, causing her to be off work for six months, a period which he deemed reasonable. At that time, he thought that her symptoms would settle over the period of a year, by which stage they would be minimal and would not interfere with her work or social life.

[10] Mr Brenkel saw the pursuer again in March 2007 (report 6/2) and matters had not progressed as he had hoped, partly because the pursuer had ceased physiotherapy and partly because of further problems with her workstation. He thought that her neck movements had improved slightly. Mr Brenkel was not surprised that she was still experiencing pain in the circumstances. He agreed with the report from the defender's expert (infra) that her condition was stable and that her then symptoms should constitute only an inconvenience rather than a disability. She should be re-assured in relation to using her neck and her symptoms ought to resolve over a period of four to six months, with physiotherapy. Mr Brenkel did think that she would continue to have a residual dull ache, given that it had persisted for so long. She would continue to require the occasional painkiller. Mr Brenkel also agreed that, with appropriate physiotherapy and work conditions, the pursuer's symptoms ought to have settled after a year. He did not think that the pursuer's use of crutches was significant.

[11] Michael McMaster, consultant orthopaedic surgeon at the Murrayfield Hospital (and formerly for many years in that position at the Royal Infirmary, Edinburgh) gave evidence for the defenders (report 7/1). He saw the pursuer on 17 August 2007 for some thirty minutes, having seen Mr Brenkel's reports. He noted the pursuer's complaint of a dull ache at the base of her neck on the left side. This, he recorded her as reporting, did not restrict her personal activities or her full time social work. It did affect her ability to reach above her head and to lift heavy items. He could find no clinical abnormality of the neck, which had full movement. He did not consider the reduction in spinal lordosis to be significant. Rather it might have been caused by the radiographer asking the pursuer to stand up straight in order to obtain a good x-ray. The work which the pursuer had complained of would not have caused any damage to the structure of the neck, merely a soft tissue or fatigue strain. Although any problems might have been aggravated by a repetition of the poor work conditions and the use of crutches, Mr McMaster considered that, if the pursuer had continued to use the neck normally, any residual symptoms would have resolved in a few months. He agreed broadly with Mr Brenkel's first report, other than in relation to the time taken to resolve the pain.

[12] Mr McMaster was of the view that, as a result of the soft tissue injury, the pursuer would be experiencing no continuing symptoms. Her complaints were unrelated to the physiological and radiological findings. He had not thought that the pursuer was lying about her pain, merely that her complaints had become "habitual". She would, he thought, "keep trotting out the same thing" to the various lawyers and doctors that she was scheduled to see. However, he did not accept that she was genuine if she had said that her symptoms had not improved. The normal healing process ought to have taken only two or three months.

 

4 Conclusion of Fact

[13] The pursuer's evidence that, as a result of her activities at the workstation, she suffered neck pain of the type she described for the period to date is credible and reliable. The pursuer gave her testimony in a straightforward manner with little, if any, exaggeration. She had never suffered from any neck problems before the precipitating cause in this case. Despite her problems, she had returned to work as soon as was reasonable and has continued in her full time social work with only one further, understandable, period of absence. There is no sound reason not to accept her evidence as truthful. The course of her troubles is documented in the physiotherapy and GP practice notes. It is also corroborated by the evidence of her husband. His testimony was also given in a straightforward manner without significant exaggeration. It too is entirely acceptable and supports the reliability of the pursuer's account.

[14] The pursuer described her pain, which was at first severe and radiated across the shoulders and down the arms, as taking several months to settle to a dull ache. This is consistent with what both orthopaedic surgeons would have predicted in the normal case, although there was some discrepancy on the precise number of months. The pursuer's injury did seem to be resolving in a predicted manner. However, that resolution was thrown off course twice; first by her work conditions in Dunfermline and secondly by her use of crutches after the fall. Mr McMaster agreed that these episodes would have exacerbated the pursuer's condition. Of course, as a surgeon of considerable experience and skill, Mr McMaster's views on all aspects of the case are entitled to respect. In this case, but for these episodes, greater weight might have been attached to his testimony regarding the complete resolution of symptoms in all cases after a period of months. However, having regard to the likely consequences of these episodes, the testimony of Mr Brenkel is preferable to the effect that the pursuer will have residual problems involving her dull ache, requiring occasional pain-killers, in the years ahead. On the other hand, Mr McMaster may well be right in saying that, with appropriate management (ie a return to entirely normal neck activity) the pain may resolve entirely. This does, however, remain doubtful. Certainly, the removal of the inevitable stress caused by the present litigation is likely to be beneficial.

[15] The evidence of the pursuer and her husband in relation to the services claim is also broadly acceptable. There is little real conflict between their testimonies. They do not have a family and both work full time. Prior to the pursuer's problems, the pursuer did more than half of the domestic chores. Afterwards, she was unable to make any significant contribution to the housework until about the time she returned to work. Since then, her husband has done the bulk of this work. At the start, he would have been putting in at least two hours extra on average every day, dropping to an hour a day after that return and to date. It may be that, with proper management and the resolution of the litigation, however, matters might return to more of an equilibrium.

 

5 Damages

(a) Solatium

[16] The pursuer suggested £6,000 for solatium, all attributable to the past. This was under reference to the English Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injuries Cases (sub nom. Neck Injuries (b) Moderate (ii) or (c) Minor (i); Back Injuries (c) Minor); Lewis v Richardson 2002 SLT 272; Spink v Lawrie, unreported, 9 May 2006, Sheriff Cusine at Aberdeen). The defenders, founding of course on the acceptability of Mr McMaster's testimony, suggested £3,000 to £3,250 under reference to Ivory v Cowie 1994 SLT 307; Jamieson v Higgins 1998 Rep LR Quantum 23; and Frame v Parker 2004 SLT (Sh Ct) 111. If Mr Brenkel's evidence were accepted, 15% of any award ought to be attributable to the future.

[17] On the basis of the above conclusions of fact, £5,000 is a reasonable award for solatium, with 15% attributable to the future. Applying interest at 4% from 10 May 2004 on the past element adds a further £650.

(b) SERVICES

[18] The pursuer asked for the awards for services to take the form of lump sums, even if some arithmetical calculations could be used as a cross check; that is to say the number of extra hours multiplied by an hourly rate of perhaps £5. The pursuer sought £1,000 for the services rendered by the pursuer's husband during the first three to four months. Thereafter, she sought a total of £2,000 (£500 per annum) for the period after the severe initial pain had subsided. In addition, £400 (£100 per annum) was reasonable in respect of the assistance to the pursuer's parents-in-law. No award was sought for the future and therefore interest, requested at 4%, would run on the whole sum. The defenders submitted that a total of £650-750 for all the services was appropriate under reference to McEwan & Paton: Damages for Personal Injuries para 12-08/09 summarising McCluskey v Lord Advocate 1994 SLT 452; McGarrigle v Babcock Energy 1996 SLT 471; Williamson v GB Papers 1994 SLT 173 and Duffy v Lanarkshire Health Board 1995 SLT 1312).

[19] The level of the pursuer's requests for sums to represent past services is entirely reasonable. The pursuer's husband has put in a considerable number of extra hours each week in order to manage the domestic routine of the house. He continues to do so. The sums of £1,000 for the initial period, £2,000 for the remainder plus £400 for the assistance needed to Mr Downie's parents are, if anything, on the moderate side of reasonable. They total £3,400. Interest at 4% on the total is again modest, and produces a further £520.

[20] There was no dispute that the pursuer is entitled to the £120 cost of physiotherapy, and this will be made up to £150 once interest at 8%, since the expense was incurred, is taken into account.

(c) DECREE

[21] The decree in favour of the pursuer will be for £9,720. I will sanction both consultants as skilled witnesses whose engagement to investigate and to report was reasonable.

 

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