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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Smith v. Forsyth & Anor [2001] ScotSC 24 (17 August 2001) URL: http://www.bailii.org/scot/cases/ScotSC/2001/24.html Cite as: [2001] ScotSC 24

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The Sheriff, having resumed consideration of the cause found the following facts proved.

1. The pursuer resides at 41 Forestside Drive, Banchory. The defender's present whereabouts are unknown.
2. The Minuter is the Motor Insurer's Bureau, a company limited by guarantee and having their registered office at 152 Silsbury Boulevard, Central Milton Keynes, Milton Keynes MK9 1NB who enter the process to oppose the amount of damages claimed.
3. On 20^th February 1997 the pursuer was driving a Ford Mondeo from Aberdeen to Banchory at about 7.50 am in the appropriate carriageway when a vehicle driven by the defender in the opposite direction skidded across the road and collided with the front of the pursuer's car.
4. At the material time the weather was frosty and particles of ice had formed on the road. The defender admitted that he had lost control and the accident was his fault.
5. Said collision was caused by the failure of the defender to maintain such control of his vehicle as would prevent it crossing the carriageway and into the path of the pursuer's car.
6. As a result of said collision the pursuer sustained injury and loss.
7. The pursuer had been wearing a seat belt. The force of the collision caused the airbag to inflate and the pursuer to be thrown forward then back and forward again.
8. The pursuer was severely shaken by the impact. Her recollection of physical injury was of slight tenderness immediately in the neck area followed by aching sensation of neck and shoulders. Such pain is consistent with what is known as whiplash injury.
9. The pursuer visited her doctor for advice, was examined by her doctor on 20^th February, given painkillers and advised to go to the Accident and Emergency unit of Aberdeen Royal Infirmary.
10. On 21^st February the pursuer attended at the Accident and Emergency unit of Aberdeen Royal Infirmary and was examined. She was advised she had sustained a whiplash injury, provided with a "soft collar" neck support, stronger painkillers and detailed advice on what to do and not do in the following weeks.
11. On 26^th February the pursuer returned to her doctor complaining of the continuation of severe pain and was referred to the physiotherapist.
12. The pursuer suffered severe pain for approximately 3 weeks tapering to moderate pain and then occasional pain for the next 6 weeks. She forced herself to return to her school duties after a few days.
13. She attended the Aberdeen Royal Infirmary Physiotherapy department for treatment on 3 occasions. She was treated with ultrasound, massage, specific exercises and advice on posture. By 12^th March her symptoms had subsided so that she was virtually pain free. The physiotherapy clinic was very busy and the pursuer was disinclined to visit thereafter.
14. The pursuer was careful not to get involved in physical activity which might reactivate her symptoms although prior to the accident she had been a keen and active hill walker and golfer. By the end of May she resumed golfing activity by returning to the practice ground and as that produced no ill-effects she was able to play a full round. Thereafter she gradually returned to regular play.,
15. It is not proved that the pursuer suffered from a prolapsed cervical disc as a result of the road accident on 20^th February.
16. On 30^th June the pursuer entered a golf tournament at Banff and played sufficiently well to win the Bronze division and reduced her handicap.
17. The following morning she awoke with pain in neck and left arm which gradually became more severe. She reverted to the use of the soft collar, revisited the doctor but the pain was unrelieved. The nature and range of the pain suffered was different from that suffered in February.
18. In July there was clearly identified radiation of pain down the left arm and Paraesthesia. In July the analgesics were relative ineffective and the constancy of the pain caused considerable distress. She had sustained a prolapse of a cervical disc on about 1^st July.
19. Prolapse of cervical discs is not common. Prolapse can occur spontaneously and is not dependent on occurrence of abnormal traumatic incident. Prolapse of cervical discs not accompanied by other signs of severe traumatic injury only occur in degenerated discs. All spinal discs degenerate with the passage of time after the age of 18. The pursuer was aged 48 in July 1997.
20. In July the pursuer was prescribed Diazepam and Dihydocodeine. She was in constant pain, unable to sleep or relax and was considerably disabled. After two months the pain had reduced but remained and restricted her.
21. On about 22^nd September 1997 the pursuer was admitted to hospital for myelogram and surgical intervention. On 25^th September an anterior cervical fusion was carried out successfully providing almost immediate relief from the pain which had been so disabling since July. She was discharged from hospital on 27^th September.
22. She attended for post-operative follow-up care until 11^th November. By that time the recovery was almost complete; neck pain occurred occasionally with a spot of tenderness at the left elbow.
23. The operation left a scar across the front of the neck which was noticeable for about one year but by April 1999 was not noticeable. She continued to be aware of it however.
24. The ingestion of diazepam in the quantities she took in July created a dependency. She weaned herself off the dependency with difficulty. She was off work following the operation for 2 months and then was fit for part-time work.
25. She lost wages during October, November and December amount to £250.

1. The pursuer incurred outlays in respect of her treatment from a Sports Physiotherapist in July 1997 amounting to £40 and further physiotherapy in July and December 1997 amounting to £42.
2. She incurred travel expenses as a result of being unable to drive her car in February and March 1997 which are reasonably estimated at £40 and during September and October which are reasonably estimated at £112.
3. The pursuer's husband required to assist her in carrying out domestic duties in the household both in March and April 1997 and between July and November 1997. He also chauffeured her to and from school in March 1997.

Accordingly, finds in fact that the pursuer sustained injury as a result of the fault and negligence of the defender on 20^th February 1997 and is entitled to reparation therefor; that the sum of £2790.00 is a reasonable estimate of damages sustained by the pursuer, and therefore grants decree for the sum of £2790 with interest as craved and appoints parties to be heard on

Note:

This is a reparation action following upon a road accident in February of 1997. There is no appearance for the defender, but the Motor Insurer's Bureau have entered the process as minuters to oppose the quantum of damages being sought.

The dispute here is essentially a disagreement between medical experts on cause of injury.

The facts of the accident are not in dispute. A car skidded across the road in front of the pursuer's car causing a collision which resulted in her being thrown forward into her air-bag which had inflated and then back and then forward again. The collision generated a shock for the pursuer and she was also aware of pain in the neck and shoulders. She immediately visited her own GP, was referred to the Accident and Emergency Unit at Aberdeen Royal Infirmary where a general diagnosis of whiplash injury was made and she was issued with a collar and given advice on self-treatment and pain killers. The pain eventually settled and she was able to resume normal activities but, not surprisingly, with some circumspection and care. In particular, she was able to resume golf. She returned to competitive golf on 30^th June and won the Bronze Division of the Banffshire Ladies Championship, thus providing yet further circumstantial evidence in support of the old adage "beware the injured golfer". (It would seem to me to be a not unreasonable inference that the awareness of the injury made her more self-aware and more careful, resulting in the improved performance.)

However, the following day she awoke with pain in her neck radiating down her left arm. This pain gradually got worse as the day wore on, and soon became excruciating. She reverted to using the collar with which she had been supplied in February, but to no effect and she sought medical advice and also went to see a sports physiotherapist. Neurological involvement was apparent to her general practitioner on the 4^th July and on the 14^th July a suspected prolapsed disc was recorded. This was eventually confirmed and the pursuer underwent, fortunately, very successful surgical intervention in September from which she, in due course, fully recovered. The real dispute in this case was whether the July incident was related to the February incident. There is polite but flat disagreement between the medical experts on the existence of a causal link between the two incidents. There is no doubt that the pursuer suffered a prolapsed intervertebral disc on the 1^st July and the first question is whether she suffered prolapse of the disc in February which then settled, but recurred in July with much greater severity of symptoms. Alternatively, even if she did not suffer a prolapsed disc in February, was her neck so damaged that the likelihood of a prolapse occurring was increased?

Before dealing with the conflict of opinion between the medical experts, I require to resolve apparent contradiction on the facts.

Paraesthesia (colloquially known as 'pins and needles') is an indicator of neurological damage. In any injury involving vertebral structures, doctors routinely look for signs of neurological damage or other damage affecting nerve roots. The mechanical explanation is that damage to or near a disc causes it to bulge, press on the protective sheath that surrounds the nerve root, causing pressure on and stimulation of the nerve which serves other parts of the body, in this case the left arm. Pain caused by damage to muscles and surrounding tissues is of different character and is sensed locally. If there was Paraesthesia after the February event, that would indicate the likelihood that there had been prolapse of an intervertebral cervical disc.

The primary source of evidence is the pursuer herself. It was clear from her evidence that the type of pain in July was quite different from the type of pain in February, and there was clearly an indication of Paraesthesia and radiating pain in July whereas, in February she refers to the aching of neck and shoulders. She is also the primary source of evidence for the various doctors, Professor Rowley examining the pursuer some time later was aware of the medical opinions expressed which related the two events. He explained that he took a very careful history and it was clear from the pursuer that she did not recollect any Paraesthesia in February. He reports that she did not have or develop arm pain. Mr Matheson does not record or recollect any complaint of Paraesthesia following upon the road traffic accident. Mr Currie, the consultant neurosurgeon who was responsible for the later operation, subsequently wrote a report narrating a history after the road accident in which he states that she had pain in her left arm and altered sensation in the form of 'pins and needles'. In evidence, however, he explained that this history was derived from the case notes and not from the patient directly. The case notes include two references to Paraesthesia. On 28^th February there is a note from a Dr Moira Collins, who refers to Paraesthesia down the inner aspect of her "good" arm and left fingertips. That, presumably, is a reference to her right arm. There is no other evidence to involvement of her right arm. The next reference in the records is on "discharge summary" by the physiotherapist in a report to the GP practice in which, under the heading 'Diagnosis', is included "RTA whiplash injury, Paraesthesia of inner aspect of left arm and pain of upper and medial border scapular region". As there was no further evidence from the physiotherapist before the court it is not clear whether that purported diagnosis is the product of examination by the physiotherapist or simply repetition of what appears in the referral note. It seemed to me clear from Mr Currie's report and his evidence that he was assuming that the reference to Paraesthesia related to the left arm and not to the right arm. Her GP, Dr Carroll, is directly involved in July and he notes the Paraesthesia at that stage only, thus the first reference to Paraesthesia following the road traffic accident is from Dr Collins, but that relates to the right arm and the left hand. The subsequent references are derived from the records and not from direct examination with the possible exception of the physiotherapist. From Mr Currie's evidence it is clear that his opinion is based on the existence of Paraesthesia following the road traffic accident and Paraesthesia following upon the golf incident. Interestingly, the Accident and Emergency report records there was no neurological deficit on the 21^st of February. Accordingly, I do not find Mr Currie's evidence helpful in resolving the issue of whether or not there was signs of neurological damage in February. It appeared to me that the greater probability clearly favours the view that there was no neurological damage directly observed following upon the road traffic accident.

That, however, is not the end of the matter. Mr Matheson is strongly of the view that there is an inference available from the July event, that the pursuer was predisposed to a prolapse because of the injury in February. This is the source of the major disagreement between the medical experts.

There is, in my view, no scientific evidence to support the inference advanced by Mr Matheson. I do not find the argument "post hoc ergo propter hoc" a persuasive argument in any and certainly not in these circumstances. One of the main purposes of expert evidence is to provide a rational basis for conclusions such as a causal link between two incidents. All the experts are agreed that there is no information available which can be demonstrated to be likely to be a causal link. There is no evidence of damage to an intervertebral disc or its surrounding tissues from which it can be inferred that there is a weakness or a predisposition to further injury, or even different injury. While it is agreed that a trauma is often referred to in patient histories, there is no demonstrable consequence to the trauma which leads to the conclusion that the likelihood of subsequent prolapse is increased. It is, in my view, illogical to conclude that all incidents which are subsequent to a trauma are caused by that trauma. In the current state of medical knowledge it is not even possible to say that any prolapse of disc subsequent to trauma is caused by the trauma except in most extreme circumstances where other injuries are also patent.

Accordingly, I do not accept the inference relied on by Mr Matheson. I fully understand the temptation to associate the two incidents, given the relatively short time between them. There was no evidence from which it could be inferred that the activity on the golf course would be liable, per se, to cause a prolapse to a cervical disc. It seems to me it is for the experts to rationally justify the conclusion that the disc had been weakened and, as Mr Matheson put it, was "waiting for something to happen". Mr Matheson may be right, but the current state of medical science does not allow a demonstration of cause and effect. Professor Rowley explains that, although a massive amount of attention has been devoted to seeking to discern the effect of trauma on cervical discs, particularly in whiplash context, no detail has been found to demonstrate a weakness in the disc or surrounding tissues which is the premise on which Mr Matheson's conclusion was based. Professor Rowley dismisses the conclusion as a speculation on possibilities rather than a rational conclusion on balance of probabilities. Professor Rowley also explained that it was common, or as he put it, human nature, to associate successive traumatic events and link them. As the function of experts science, however, is to demonstrate the truth or falsity of that connection, there was no evidence to demonstrate of the truth of the connection in this case. I accept his view on this matter. It may be that Mr Matheson is right, but there is no basis on which I can reach a conclusion that it is proved on the balance of probabilities the two incidents are causally linked.

Accordingly, I am driven to the conclusion that the incident in July is not proved to be related to the incident in February and, accordingly, the loss suffered after July is not referable to the road accident.

I turn now to consider the question of damages. I fully accept that the pursuer suffered episodically excruciating pain which gradually settled. In general terms, the assessment by Mr Matheson that she suffered four weeks of severe pain and four weeks of mild pain was supported by her own evidence, and she was virtually fully recovered by May. I do not find that the fact that she only lost four days work in February yielded a conclusion that the pain was less severe than she said. It seemed to me entirely credible that she would regard her duty to the children in her care as paramount, and she would force herself to go to work notwithstanding her discomfort. For a fit and active person such as the pursuer, disablement and restriction of movement is particularly distressing. It was agreed that £40 was a reasonable estimate of the additional expense of the pursuer being chauffeured to school. I was referred to various cases on the question of general damages. I find no difficulty in accepting the submission that £2,500 is an appropriate figure. In addition, the pursuer is entitled to a sum assessed in terms of the application of section 8 of the Administration of Justice Act 1982 which I would consider reasonably assessed at £250.

If I were to be wrong in concluding that there was no causal connection between the car accident and the prolapse in July, I would require to assess damages for the pain and suffering sustained after 1^st July.

The pain after 1^st July was significantly more disabling. The persistence of pain generated sleeplessness and general emotional disturbance. The use of painkillers produced a dependency which required to be reversed. Surgical intervention was necessary under general anaesthetic and the pursuer was in hospital for just under one week. She recovered from a successful operation over the next four months. solatium in general for the period after 1^st July would be reasonably assessed at £4,000. In addition there was wage loss at an agreed figure of £250 and travel costs of £112 and physiotherapy at £82. In addition a figure requires to be assessed in respect of solatium for loss of holiday and compensation for household services (as per Section 8 of Administration of Justice Act). I would assess each at about £500. Thus a total figure would be reasonably stated at £5,444 for the period after 1^st July.

Motion was made at the conclusion of the evidence for certification of Messrs Currie and Matheson as expert witnesses. I see no difficulty in granting that certification, but I shall put the whole issue of expenses out to a separate hearing.