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	Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Clark v. R & J Simpson Ltd [2005] ScotSC 64 (04 October 2005) URL: http://www.bailii.org/scot/cases/ScotSC/2005/64.html Cite as: [2005] ScotSC 64

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Act: Mr P M McDonald, Advocate

The Sheriff, having resumed consideration of the cause: SUSTAINS the pursuer's first plea-in-law; GRANTS decree against the defenders for payment to the pursuer of (1) £7,500 (SEVEN THOUSAND FIVE HUNDRED POUNDS ) with interest at the rate of 4% per annum from 8^th May 2002 to the date of decree; (2) £7,500 (SEVEN THOUSAND FIVE HUNDRED POUNDS); (3) £26,582.60 (TWENTY SIX THOUSAND FIVE HUNDRED AND EIGHTY TWO POUNDS SIXTY PENCE) with interest at the rate of 4% per annum from 8^th May 2002 to 14^th August 2004 and at 8% from then to the date of decree; (4) £420 (FOUR HUNDRED AND TWENTY POUNDS) with interest at the rate of 8% from 1^st June 2002 to the date of decree; and (5) £3,000 (THREE THOUSAND POUNDS) inclusive of interest to the date of decree; and with interest thereon at the rate of 8% from the date of decree until payment; CERTIFIES the cause as suitable for the employment of Junior Counsel; CERTIFIES Mr George Ashcroft, Consultant Orthopaedic Surgeon, Dr Alastair Palin, Consultant Psychiatrist, Dr Derek Chiswick, Consultant Forensic Psychiatrist, and Mr Neil Valentine, Consultant Orthopaedic Surgeon, as expert witnesses; FINDS the defenders liable to the pursuer in expenses; ALLOWS an account thereof to be given in and remits the same, when lodged, to the Auditor of Court to tax and to report.

1. The pursuer is 55 years of age, having been born on 14^th August 1949. He resides with his wife at 3 Anchor Cottages, Sandhaven, Fraserburgh. The defenders are a company incorporated under the Companies Acts. They have a place of business at 27 Sinclair Road, Torry, Aberdeen.
2. On 8^th May 2002, the pursuer was employed by the defenders as a driver and had been so employed for about 12 months. On that date, he required to deliver a load of prawns to Bellamy Prawn Peelers at 51 Wilson Street, Peterhead. The prawns were contained in approximately 220 open topped boxes, packed along with ice. The pursuer pulled the boxes to the tail area of the vehicle and they were then lifted off the vehicle and placed on pallets by employees of Bellamy Prawn Peelers. In the course of this operation some of the ice in the boxes melted causing water to leak onto the floor and in particular onto a metal plate on the rear end of the van. In the course of carrying out the task of unloading his vehicle the pursuer slipped and he fell hitting his back on the rear of the vehicle before falling some 41/2 to 5 feet onto the roadway. The pursuer hit the left side of his back and experienced pain in his back and legs. After a period of recovery he was helped back into the van by employees of Ballamy Prawn Peelers and was able to drive with difficulty back to the premises where he always parked the van overnight. He then entered his own motor car and drove to his home in Sandhaven, Fraserburgh where he was helped out of the car by a neighbour. The defenders have accepted liability for the injury sustained by the pursuer.
3. He experienced severe pain in his back overnight and the next morning his wife 'phoned the surgery of his general practitioner in Fraserburgh advising that her husband had fallen and hurt his back and was now in pain and unable to get out of bed. As a result a Dr. Tweedie called at the pursuer's home and examined the pursuer. She found that the pursuer was in considerable pain from his back and she arranged for him to be conveyed by ambulance to the hospital at Fraserburgh. After examination there and an x-ray having been taken, it was suspected he might well have a fracture and he was therefore transferred by ambulance to Aberdeen Royal Infirmary. There, after further examination and further x-rays, it was concluded that there was no fracture but the diagnosis was a soft tissue injury. The pursuer was unable to mobilise on account of the pain and was admitted to Aberdeen Royal Infirmary. After 3 days he was sufficiently mobilised to be able to be discharged home. Physiotherapy was to be arranged for him and his position was to be reviewed at the fracture clinic on 6^th June.
4. The pursuer was collected at the hospital by his wife and taken home in a car driven by his brother-in-law. He was in severe pain throughout the journey to Fraserburgh and had to be helped out of the car. He remained in bed for a week at home and his wife had to take 3 weeks off work to help him to the toilet, to take his food, to wash, and to help him out of bed into a chair.
5. On 6^th June, the pursuer attended the fracture clinic for review and was found to be still struggling regarding mobilisation. He was noted to have fairly markedly reduced forward flexion and extension. He was instructed to continue with his physiotherapy and return to the fracture clinic on 4^th July. He continued with physiotherapy and was discharged from physiotherapy on 1^st July 2002.
6. On 4^th July 2002, the pursuer was seen for review by Dr. Kader, senior registrar at Aberdeen Royal Infirmary. At page 47 of production 5/7/1 the pursuer's Grampian University Hospital Medical Records, Dr. Kader noted that there was a slow improvement in the condition of the pursuer with occasional left leg pain. However, by letter dictated on 4^th July 2002 but typed on 15^th July 2002 which forms production 5/5/7 at page 53, Mr G P Ashcroft, consultant orthopaedic surgeon wrote to the pursuer's general practitioner in the following terms.

7. On 5^th July 2002, the pursuer attended at his general practitioner's surgery and reported that his back was still sore. His injury was noted as being a soft tissue injury in the area of his thoracic spine. After his discharge from hospital the pursuer attended as an out-patient at Fraserburgh hospital for physiotherapy treatment on about nine occasions but without any significant improvement. A soft tissue injury of this type would normally have been expected to settle in a period of 2 to 3 months. The pursuer was signed off work following the accident and has not returned to employment. The pursuer still experiences pain in his left leg with pins and needles. His ability to walk any distance has been severely curtailed and he finds it necessary to stop and sit down when walking over 100 metres as his back becomes extremely sore. He finds it difficult to sleep at night because of pain in his back and legs and finds it necessary to get up through the night once or twice in order to relieve the pain. He is able to drive a car and to get in and out of a car slowly. A surveillance video shows the pursuer getting in and out of a car in such a fashion.
8. After the pursuer's discharge from hospital he had to remain in bed for a week. His wife took leave of absence from her work and had to help him to the toilet, take his food to him, wash him, help him in and out of bed and assist him to get into and out of a chair. She still has to help him out of a bath and to help him put on and take off shoes and socks. His wife took 4 weeks off work to assist him and thereafter reduced her working hours from 39 hours to 30 hours in order to be available to assist the pursuer. Very recently, the pursuer has received aids from the social work department which assist him in putting on his shoes and socks and performing other tasks which his wife had previously to undertake. He experiences general stiffness in his legs and back and on occasion his back seizes up. This general stiffness frees up after he has commenced moving. He finds he cannot garden which was his main hobby nor tinker with cars which was a previous pursuit he enjoyed.
9. He enjoys driving a motor car but finds that on any length of journey the pain and stiffness in his back and legs causes him to stop after about 20 miles to move about and free the stiffness.
10. The pursuer has been primarily employed in manual labour throughout his working life. He has been employed as a farm labourer, a tractor driver, a general labourer, a crane driver, and a lorry driver. Several of his periods of employment were fairly short-term but this was attributable to work done on particular contracts. Three of his previous employers had re-employed him on subsequent occasions. The defenders had previously employed the pursuer and re-engaged him before his accident. He had the experience of pain in his legs in 1994/95 and had been off work for approximately 6 months. This was not the same pain as he experienced following the accident. On several occasions he had been signed off work for other ailments but on each occasion he had been able to return to full-time employment. The pursuer has no experience nor training in any other form of employment that does not necessitate some form of manual labour.
11. The medical records of his general practitioner for the period from 1990 to 2002 reveal that the pursuer has consulted his general practitioner with symptoms which, after investigation, could not be traced to any physical cause. In particular in 1992 he had been examined in the neurology clinic after complaining of pain in both thighs but no physical explanation could be detected. In 1994 he had been signed off work with pains in his legs and in 1995 he had complained of back pain but no significant abnormalities had been found. In 1996 he had been signed off work with a back injury and in 1998 had complained of numbness and pain in his arms which had resulted in his being off sick for about 6 months. In or about February 1998 he had been diagnosed with polymyalgia rheumatica and had been placed on steroids which partially resolved his symptoms. He has been maintained on steroids since that time until the present day. X-rays taken at the time of his admission to hospital in 2002 demonstrate degenerative change at T12/L1.
12. The pursuer currently experiences pain in the left side of his back. He has developed pain radiating into his left arm and left leg. He did not have these symptoms before his accident and complains of localised pain and discomfort through the correct area of his body at which there is a definable abnormality. He is suffering from a back injury which gives him severe disability and, although on occasion he presents with physical symptoms, which do not have physical findings, indicative of a degree of somatisation, he perceives on a constant basis that he has pain and is not fit to return to work.
13. The pursuer has been examined by Mr Ashcroft as an orthopaedic surgeon on behalf of the pursuers and by Dr. Palin as a psychiatrist on behalf of the pursuers. He has also been examined by Mr Valentine as a consultant orthopaedic surgeon for the defenders and by Dr. Chiswick as a psychiatrist for the defenders. In order to meet with Dr. Chiswick the pursuer had to travel from Fraserburgh to Aberdeen by car, catch a train to Edinburgh, and a taxi to hospital to meet with Dr. Chiswick. Doctors Ashcroft and Palin found the pursuer a straightforward historian whereas Doctors Valentine and Chiswick considered he was exaggerating his symptoms.
14. After this action was raised the defenders lodged defences and then made an admission of liability. That admission of liability was subsequently withdrawn. Thereafter, prior to the proof, the defenders admitted liability. These changes in position caused the pursuer undoubted concern.
15. The pursuer was employed as a manual labourer throughout his working life and given his other symptoms it is unlikely that he would have worked beyond 55 years of age even if he had not been involved in the accident.
16. The pursuer earned on average £242.08 net per week at the time of the accident. This amounts to £12,588 net per year. The pursuer has received total sick pay of £1,740.40 from the defenders since the said accident. It is reasonable to anticipate that had he not been involved in the accident the pursuer would have been able to work until he was 55. Accordingly, his wage loss can be assessed as being two and a quarter years at £12,588 net per year. The loss of earnings would be therefore two and a quarter years at £12,588 net amounting to £28,323. From that falls to be deducted the sick pay paid by the defenders amounting to £1,740.40 giving a balance of £26,582.60 which carries interest at 4% from the date of the accident until his 55^th birthday and at 8% from then until payment. There is little likelihood that in view of the defenders' pre-existing history he would have been able to obtain alternative employment after his 55^th birthday.

17. The pursuer's wife was forced to take time off work to provide very full nursing care to the pursuer in the first week after the accident and lesser care over the next 2 to 3 weeks. Thereafter, she has helped him significantly in turning him in bed, getting in and out of bed, dressing, and bathing. Shortly before the proof the pursuer was provided with supplies from social services which assisted him with dressing and bathing. The pursuer's wife had also had to reduce her hours after she returned to employment to provide assistance to the pursuer. In all the circumstances, it seems reasonable to award the pursuer's wife £420 for her loss of wages for the period when she provided very full nursing care with interest from 1^st June 2002 to date at 8% and a global figure of £3,000 inclusive of interest to the date of the decree as proposed by the pursuer to cover the services provided up to the date of the proof. Given the provision of gadgets to assist the pursuer it is not reasonable to suggest that additional future services will be required to assist the pursuer.
18. A reasonable sum for solatium is £15,000 of which £7,500 is attributable to the past, and £7,500 to the future.

1. The pursuer having suffered loss, injury and damage through the fault and negligence et separatim the breach of statutory duty of the defenders is entitled to reparation therefore.
2. Reasonable reparation for the said loss, injury and damage is assessed as follows:-

I SOLATIUM £15,000

1. Of which £7,500 is attributable to the past with interest

at the rate of 4% per annum from 8^th May 2002 to the

date of decree.

2. Of which £7,500 is attributable to the future.

II WAGE LOSS

21/4 years @ £12,588 per annum

£28,323
Less Sick Pay		£ 1,740.40	£26,582.60

With interest thereon at the rate of 4% per annum from 8^th

May 2002 to 14^th August 2004 and at 8% from then to the date of decree.

III SECTION 8 SERVICES

1. Wage loss with interest thereon at the rate of 8% from

1^st June 2002 to the date of decree. 420.00

2. Services rendered in past (inclusive of interest - as

TOTAL EXCLUSIVE OF INTEREST £45,002.60

In this proof the pursuer sought damages of £100,000 in respect of loss, injury and damage sustained by him in an accident on 8^th May 2002 whilst in the course of his employment with the defenders. Regrettably on account of court programming, two days of the proof were held in January and the last two days and submissions in June. During the passage of this action through the court, liability had been admitted, then withdrawn, and then before the proof liability had been admitted. It was therefore accepted that on 8^th May 2002 the pursuer, in the course of his employment with the defenders, was injured in an accident for which the defenders were responsible. The action was, however, vigorously defended on the basis that the pursuer was fit to return to work in July 2002 having only received a soft tissue injury and that he was wilfully exaggerating his claim. The pursuer led evidence from Mr Ashcroft, a consultant orthopaedic surgeon and Dr. Palin, a consultant psychiatrist whereas conflicting opinions were led for the defenders by Mr Valentine, consultant orthopaedic surgeon and Dr. Chiswick, forensic psychiatrist. The basis of the expert evidence for the defenders was that any physical injuries sustained by the pursuer in the accident would have been resolved by July 2002 and any ongoing pain and reported disability was completely out of proportion to the nature of the injuries sustained in the accident. Any ongoing symptoms were as a result of pre-existing somatisation or inherent and long-standing over anxiety about his health coupled with wilful exaggeration on the part of the pursuer. All the experts agreed that the case depended really on whether the pursuer was accepted as a credible witness and a genuine honest and open man or whether he was found to be lying and exaggerating his symptoms in order to obtain an award of damages.

I found the pursuer to be an honest, hardworking man who had been employed in various capacities throughout his working life, all of which involved manual labour of some description. I found his account of the accident and his pain and suffering in the immediate aftermath of the accident to be totally credible and reliable. He accepted he had been off work in the past with pain in his legs but I accepted his explanation that this was a different pain from that following the accident. I also accepted his explanation regarding some short periods of employment that he had been engaged for particular contracts and once the contract was concluded his services were no longer required. In the main, however, he had been a man who sought employment and had limited periods unemployed and off sick It was indicative of his suitability as a worker that he had been re-employed by three of his previous employers.

I also accepted that his medical records disclose that he had consulted his doctor for various ailments for some of which no physical cause could be discovered. I accepted the expert's opinion that there was an indication of somatisation of relatively minor degree. My general impression at that stage of the proof was that the pursuer was telling the truth when he complained that since shortly after the accident he had experienced on and off pain in his back and legs which was different from any he had experienced before.

What did concern me about the pursuer's evidence was his evidence about his attendance at the clinic in Aberdeen on 4^th July. In cross-examination at page 63 et seq the pursuer was subjected to the most vigorous cross-examination in that his evidence was that he had not seen Dr. Ashcroft on 4^th July but one of his assistants, a coloured doctor. He claimed that he had told the doctor that he had significant back pain. The letter from Mr Ashcroft dated 4^th July 2002 was put to the pursuer, the terms of which were "I reviewed this gentleman in clinic today. He denies any significant back pain. He is extremely mobile. He has no neurological problem. Back was normal on clinical examination and he was discharged today". Despite vigorous cross-examination, justifiably so on the basis of the letter, the pursuer stuck to his evidence that he had not seen Mr Ashcroft and that the letter was totally wrong. I must confess that at that stage I shared the defenders' counsel's serious doubts about the credibility of the pursuer given the unequivocal terms of the letter. On the basis of that letter it appeared that the pursuer's physical symptoms had all resolved by 4^th July 2002 and was clearly supportive of the defenders' case that the pursuer was wilfully exaggerating his symptoms and malingering.

It therefore was a matter of complete surprise to me as well as to the defenders' counsel when Mr Ashcroft was subsequently called to give evidence and stated that the letter related to the wrong patient. At page 195, Mr Ashcroft stated that he was embarrassed to say that the contents of the letter were totally wrong. On examination of the medical records he confirmed that the pursuer had in fact been seen by a senior registrar, Dr. Kader. From the hand-written notes made by Dr. Kader, Mr Ashcroft was able to state that the pursuer had indeed reported still having back pain. Mr Ashcroft in evidence also conceded that he had prepared four reports, Nos. 5/5/1 to 5/5/4 of process and had not picked up the fact that his letter of 4^th July 2002 was completely wrong. The significant impact of this admission by Mr Ashcroft that the letter was completely wrong added greatly to the credibility of the pursuer who had in the face of quite proper vigorous cross-examination maintained his position that the letter was wrong. Unfortunately, however, the impact of this letter was not just on the credibility of the pursuer but its existence had coloured the opinions expressed by both Mr Valentine and Dr. Chiswick in their reports on behalf of the defenders. Mr Ashcroft agreed at page 239 et seq that reading the letter would indicate to the reader that the patient was totally recovered from his injury. At page 242 he apologised for the error in the letter and further apologised for the fact that he never picked the error up when preparing his reports.

The experts all agreed that much of their opinion was based on their impression of the pursuer as a historian. Mr Ashcroft and Dr. Palin considered him to be an honest, straightforward historian whereas Mr Valentine and Dr. Chiswick considered he deliberately withheld certain pieces of information from them. All agreed that it was a matter for the court to decide on the credibility and reliability of the pursuer as a historian of his back pain. At page 205, Mr Ashcroft gives a very detailed answer when asked to explain his opinion that the symptoms of the pursuer are explainable by his fall. I accept that evidence.

In light of the evidence given by Mr Ashcroft about the completely erroneous letter, I have to consider carefully the evidence given by the pursuer. After due consideration, I accept the pursuer as a credible and reliable witness regarding his symptoms. If I had any doubt about his credibility I was extremely impressed by the evidence given by his wife. She impressed me as an entirely honest witness. She had been married to the pursuer for 36 years and came over as a truthful witness. She spoke in clear terms to events on the date of the accident and pain suffered by the pursuer causing her to 'phone the general practitioner first thing the following morning to arrange for a home visit. She gave a clear description of the nursing care she had to provide to the pursuer after his discharge from hospital in that she had to help him to the toilet, take his food to him, wash him, help him out of bed, and assist him to a chair. Throughout the period since the accident she still had to help him out of the bath and help him put on his shoes and socks. I accepted her evidence that the duties immediately after the accident were so onerous that she had taken time off her work for three weeks and thereafter had found it necessary to reduce her working week from 39 to 30 hours to help do jobs to assist the pursuer and to undertake tasks he could no longer perform such as the garden and heavy lifting jobs. She was also perfectly candid that the pursuer had had pain in his legs and back before the accident but that had never prevented him from working for any length of time. I believed her when she said that she did not believe he was exaggerating. I formed the impression that she was a hard working woman and a very loyal wife but not one who would lie on behalf of her husband nor indeed one who would tolerate his malingering.

Both Mr Ashcroft and Dr. Palin formed the impression that the pursuer was a straightforward historian. Indeed at page 180, Dr. Palin described the pursuer as being "a straightforward historian who was genuinely telling the truth". In his supplementary letter, production 5/8, Dr. Palin is firmly of the view that the symptoms of which the pursuer complains did indeed flow from the accident in May 2002. At page 204, Mr Ashcroft gave evidence that the pursuer's symptoms were explainable by his fall and went on at page 205 to give reasons for his opinion. He accepted that the pursuer had a genuine physical problem and was not fit to go to back to work. Both Mr Ashcroft and Dr. Palin conceded that there might be an element of somatisation in the medical history of the pursuer but did not accept that he was lying or deliberately exaggerating. The defenders accepted that if the pursuer did suffer from somatisation the defenders had to take the pursuer as they found him and therefore whether or not he suffered from somatisation was of little relevance to the claim.

If, however, he was lying and wilfully exaggerating in order to inflate his claim then both Mr Ashcroft and Dr Palin conceded that their opinions were incorrect. Both Mr Valentine and Dr. Chiswick considered that the pursuer was exaggerating his symptoms. Both gave evidence as to various "oohs" and "ahs" from the accused during their examination of him which they felt exaggerated his symptoms and both referred to a lack of candour regarding his previous medical history. It is difficult to assess how much their opinion was influenced by the contents of the erroneous letter that they had read from Dr. Ashcroft which indicated that the pursuer had fully recovered by 4^th July 2002. However, it did seem to me that the somewhat defensive position adopted by the pursuer as described by them was perhaps referable to the pursuer's increasing concerns about the attitude of the defenders in admitting then denying liability and of the number of examinations he was being required to undertake by different experts when he was firmly of the view that he had actual physical pain and had no psychiatric symptoms. In addition, of course, for the examination by Mr Chiswick the pursuer had to travel from Fraserburgh to Aberdeen by car and thereafter to Edinburgh by train. Such a long journey for someone with a sore back could have caused irritation. Doctor Chiswick also founded on the pursuer's knowledge of the legal process as indicating a desire to obtain compensation which might result in his exaggerating the symptoms. I did not accept that Mr Chiswick was right in placing so much stress on the pursuer's knowledge of the progress of the court case. It seemed to me that it was entirely reasonable that his solicitors should make him aware of what was happening at various stages of the process and in particular advise him of the vacillation by the defenders from admission of liability to denial of liability and of the defenders' desire to have him examined not just by a consultant orthopaedic surgeon but by a psychiatrist.

In these circumstances, I have preferred the evidence of Mr Ashcroft and Dr. Palin and I am satisfied that the pursuer is not wilfully exaggerating his symptoms nor is he a malinger. I am satisfied that the pursuer's current symptoms of which he complains are attributable to the accident in May 2002. I came to the view that there may have been some element of somatisim in the pursuer's medical history but I accepted the evidence that he believes he is in pain. As mentioned before the defenders accept that they have to take the pursuer as they find him. The accuracy of some of the entries in the General Practitioner's Records were challenged by the experts but in the absence of evidence from the General Practitioner I was unable to determine which of the entries were incorrect.

In so far as wage loss was concerned, the pursuer's income at the time of the accident was agreed. I consider that it is likely that the pursuer would only have been able to continue in employment which had a considerable element of manual labour until he was 55. I accepted the evidence of Mr Ashcroft and Mr Valentine on that point. Accordingly, I have allowed two and a quarter years as the wage loss. In view of his employment and medical histories I did not consider that there was any real possibility of his obtaining alternative light employment.

In so far as the claim for services is concerned, I accepted the evidence of the pursuer and his wife that immediately after the accident she did considerable nursing of him and that since then she has been of great assistance to him. I have therefore valued her claim at £420 for her loss of wages and £3,000 inclusive of interest (as proposed by the pursuer). As at the date of the proof the pursuer had obtained aids from social services to assist him and therefore I was not persuaded that any future services provided by the pursuer's wife would be other than those normally delivered by a wife to her husband with the pursuer's medical history and age.

In so far as solatium was concerned, I was referred to the case of Grassie v McLaren 2000 SLT 944 where solatium of £20,000 had been awarded and Leebody v Liddle 2000 SCLR at page 495. In that case solatium of £15,000 had been awarded. I considered that the case of Grassie was rather more serious but the case of Leebody was very comparable with this case. Accordingly, I have awarded solatium of £15,000 of which one half is attributable to the past.

I was also asked to certify the cause as suitable for the employment of junior counsel and that was not opposed. Accordingly, I have certified the cause as suitable for the employment of junior counsel.

I was also asked to certify Dr. Palin and Mr Ashcroft as expert witnesses for the pursuer and Mr Valentine and Mr Chiswick as expert witnesses for the defence. I have no hesitation in so certifying.

As the pursuer has been substantially successful I have awarded expenses in favour of the pursuer.

In conclusion, I have a considerable sympathy for the defenders in this case who understandably based their defence on the terms of the letter from Mr Ashcroft dated 4^th July 2002. The vigorous cross-examination undergone by the pursuer was directly attributable to the contents of that letter and I have no way of knowing how much that letter coloured the opinion given by Mr Valentine and by Dr. Chiswick. It is unfortunate in the extreme that that letter was completely erroneous and whilst I accept that in busy hospital departments errors will be made it is doubly unfortunate that it was not picked up by Mr Ashcroft when preparing his four reports in connection with this case. As it transpired the admission by Mr Ashcroft in his evidence that the letter was completely erroneous did much to determine the outcome of this case.