[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Masterton (AP) v Health Centre Kirkliston & Anor [2000] ScotCS 32 (2 February 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/32.html Cite as: [2000] ScotCS 32

[New search] [Help]

After surgical procedure on 13 May 1996 the pursuer, then aged 58 years, became paraplegic. At the time he was suffering from two serious medical conditions one of which, an abdominal aortic aneurysm, was potentially fatal; the other, a thoracic arachnoid cyst at T8/9 level, had the potential to develop into paralysis. The former was that operated upon on 13 May the latter in July 1996. It should be noted at the outset that all the expert medical men who gave evidence accepted that a risk of paraplegia was present in any such operation.

It should be also noted that was no criticism was made of the operating surgeon, Mr Russell, in respect of his diagnosis, treatment or care of the pursuer. The pursuer's case was based upon his claim that Dr Milne, his general practitioner, had been negligent in failing to refer the pursuer at an earlier to a suitable specialist because, had he done so, the pursuer on the balance of probabilities would not have suffered his paraplegia.

At the commencement of the proof it was accepted on the pleadings Dr Milne had failed in his duty of care towards the pursuer in that he did not refer him for specialist vascular assessment; that the pursuer did not and had never suffered from frank diabetes mellitus despite Dr Milne having so diagnosed and recorded this diagnosis in his records; and that no General Practitioner acting with ordinary skill and care would have reached a diagnosis of diabetic neuropathy on 5 April 1996.

The pursuer whose reliability and credibility was vigorously challenged by counsel for the defenders could not, in my view, be simply disregarded as being a witness unworthy of credit. His demeanour was impressive and he appeared to be endeavouring, to the best of his recollection, to tell the truth. I think he was mistaken in his evidence about the timing of his account of numbness to Dr Milne and unclear about what it was he called numbness and about its extent.

Dr Milne was not such an impressive witness. His evidence was almost entirely based upon his notes, about which I comment later, rather than on specific recollection. One particular episode in the proof caused me to take an unfavourable view of Dr Milne. That occurred when he gratuitously in the course of the proof attempted to denigrate the pursuer by asserting that instead of losing his previous employment because he was redundant he was to have been dismissed for incompetence. When asked for the reason for that irrelevant observation his response was wholly unconvincing, indeed unworthy. He regarded himself as making a tit-for-tat response to the pursuer's criticism of his conduct.

Despite the length of the proof and the somewhat wide and discursive range of the evidence presented, the issues for the Court were firstly, whether Dr Milne was negligent in not referring the pursuer to a specialist earlier than he had done so that neurological investigation could take place, and secondly, whether if he had so done, the outcome for this pursuer, on the balance of probabilities, would have been different. The pursuer's case, after amendment, was that had a reference been made for specialist assessment of the spinal cord, the operation would have taken place in mid March 1996 rather than in May 1996 and it would not have resulted in paraplegia (Record p.21).

The pleadings, which were subjected to amendment not only up to the day of commencement of the proof but during it, averred a series of complaints by the pursuer to Dr Milne, commencing on 16 August 1995, about the condition and functioning of his lower limbs. The complaints averred were; on 16 August of frequency of urination, lethargy and numbness in his feet and legs; on 30 October 1995 of a constant ache in his legs and an inability to walk further than 100 to 200 yards due to lack of sensation in his legs; on 21 November 1995 of continued pain and impaired sensation in his legs; on 20 February 1996 of pain in his legs, ataxia and numbness in his feet and legs and that he found "great difficulty in walking"; on 5 April 1996 of continued pain and impaired sensation in his legs, ataxia and difficulty in walking. Finally on 29 April 1996 the pursuer was seen at home, by which date he averred he had very little movement in his leg and was ataxic. It was at this point that he was referred by Dr Milne to the Western General Hospital, Edinburgh and was admitted on the same day. He had an MRI scan 11 days later and was operated upon 14 days after admission.

In his evidence the pursuer said that in August 1995 he felt something which had never happened before which was an aching and numbness in both legs when walking up a hill. It was worse in his left leg. It was, he said, an ache and a funny feeling, different from a pain. The said feeling was in his lower legs and feet. He said that he had told the doctor of numbness in both legs from the knee down as well as weakness of his bladder. He also said that he told the doctor that he could feel it while walking and that when sitting and getting up his legs were stiff. He said that he was in no doubt about his informing the doctor of numbness. In evidence he elaborated by adding that he had again mentioned numbness in September. He said the numbness and stiffness was worse by October. He could go so far when walking and then his knees and ankles became sore and there was numbness on top of that. At a silver wedding celebration on 20 February 1996 he found that he was very unsteady on his legs, and the numbness was still there. "It was not so much a pain as an ache". He said he could not sense anything in his legs, worse on the left. He said that he was still managing to work and to walk in April but got a stick. He got progressively worse until 29 April when he was seen Dr Milne at home and referred to the Western Infirmary. In cross-examination he said in connection with the August 1995 visit that he told Dr Milne that his legs were stiff and a bit numb but he could not remember word for word. There was an ache, a heaviness and a soreness. The next time he saw Dr Milne he said he had pain in his legs when walking a short distance. He said that he thought, was sure, that he used the word numbness and added "I'm sure I mentioned numbness. That was the sort of feeling". He was cross examined about various entries in the hospital records in which he was recorded as saying after admission on 29 April 1996 that he had weak legs but that his previous walking was "fine" (7/1, page 27) and about the impression noted by the person who made the notes that he began to feel stiff three or four weeks before 29 April. No person however was adduced from the hospital to speak to those notes or to the notes which recorded that he had only a slight diminution of power in his lower limbs (7/1/33). In cross-examination Mr Russell indicated that the picture shown in the hospital reference (7/1/11) was a condition of mild weakness. In his report (6/4) he said that by the end of April there was a significant loss of sensation and in addition (my emphasis) a significant loss of power in the legs. According to Mr Russell the pursuer had not indicated to him that there had been a complaint of numbness in August 1995. It was in October 1995, according to the history taken by Mr Russell, that he had paraesthesia and numbness in his feet and ankles.

The pursuer's wife generally supported his account of events, although she did not accompany him to the doctor and accordingly was unable to give evidence about what complaint had been made to Dr Milne at the time of the visits.

Dr Milne's evidence about these matters derived entirely from his notes. He was the only witness led by the defenders to give factual evidence. He said that if a complaint of numbness had been made to him, he would have noted it as being significant. He had not noted numbness so that could not have been mentioned by the pursuer. In February 1996, however, he diagnosed diabetic neuropathy. It is a little difficult to see how that diagnosis could have been made without some indicator which, however expressed by the pursuer must have pointed to paraesthesia and numbness.

Dr Milne's notes were somewhat less than helpful in the examination of the evidence. Dr Milne was wholly unable to explain how his computerised note taking system worked and the scanty computer notes are in marked contrast to the full and clear notes he made in his own hand on 29 April 1996. What is clear from the notes however is that the pursuer was complaining of problems associated with his lower limbs throughout. The difficulty is that complaints which were being noted involved an element of pain rather than numbness ie. claudication and osteoarthritis neither of which, on the balance of probability were in fact present. Dr Milne's computer notes, the only notes for the period, reveal that there were "encounters" as they are described, on 16 August 1995, where he notes the pursuer as "obese, breathless and dribbling urine"; on 8 September where he said "diabetes mellitus"; on 30 October, "claudication now, left worse. No pulse in left groin, right OK, warned of need to lose weight, be active, not for referral", on 21 December "little upset of colitis", on 20 February 1996 "OA ankles and knees a bit" and on 5 April "diabetic neuropathy legs, symmetrical reflexes up plantar left sensation OK, slight ataxia. Check blood."

Reviewing this aspect of the case I was not persuaded that any clear or coherent complaint of numbness in any significant degree was made in August 1995. I accept the pursuer when he claims that he was having difficulty in his mobility but do not think that he expressed that difficulty in a fashion which Dr Milne could have regarded as noteworthy or significant. There can be no doubt however that the pursuer did thereafter make various complaints which indicated difficulty in his lower limbs. Dr Milne variously described these matters and, erroneously, noted that the femoral pulse was absent in October 1995. He described the pursuer's problems as claudication and thereafter as diabetic neuropathy. That latter diagnosis would on the balance of probabilities not have been made had he not erroneously considered, that the pursuer was suffering from diabetes mellitus. I do not accept the defenders' assertion that because Dr Milne's notes did not so record that it the pursuer could not have spoken about numbness. The notes produced were not adequate to disclose the whole nature of the pursuer's complaint on consultation, as opposed to what Dr Milne thought was wrong with him. Equally the pursuer did not persuade me that the condition he described in evidence as numbness could be classified as sufficiently alarming for Dr Milne to have considered before 5 April 1996 that it was a special problem which was sufficiently serious to warrant a reference to a neurologist.

Expert medical witnesses were called by both parties. The pursuer called Mr Russell, consultant orthopaedic surgeon, as a witness both on the facts and on opinion. He was the treating surgeon. In common with all the medical witnesses the Court was favoured with extensive documents containing the witness's curriculum vitae. Mr Russell obtained his fellowships in 1979 and his consultancy post at the Western General Hospital Edinburgh, Department of Clinical Neurosciences in 1987. His record of academic qualifications and publications is impressive and is concerned with spinal problems, principally cervical spine surgery, but indicate considerable experience in thoracic spinal abnormalities. He had given several written reports about the pursuer to which he spoke in evidence. He described the nature of the cyst, a cavity filled with cerebro-spinal fluid located between thoracic vertebrae T9 to T7. That cyst compressed the spinal cord; it was this which caused the loss of sensation and power in the lower limbs. At operation the cyst was punctured releasing the fluid, thus causing the spinal cord quickly to return to its natural position. He explained that paralysis was always a possibility in such an operation. There were theories as to the cause of the paralysis, one being that the sudden change in the shape of the spinal cord, one being that some of the blood vessels supplying blood to the cord became damaged either at operation, or ruptured with the change in shape of the cord and arachnoid surrounding it. Paralysis would have resulted if the cyst, being untreated, had increased in size. Since according to the clinical picture the cyst was increasing in size then, without an operation, the pursuer would have been paralysed in any event.

He somewhat modified his written opinion (6/7) that the risks of the eventual outcome would have been significantly lower had the operation taken place a few months earlier. In response to general questions he said that if the operation had been completed a month earlier there would have been no significant difference in the risk. At two months it was difficult to be precise. If one went back to February 1996 as an operative date he said that it was possible (my underlining) that the outcome would have been better. He said also, that the pursuer would have had a greater chance of useful function in his legs with an earlier operation. Had it been October 1995, in all probability it would have had a better outcome. The reason for that was that the symptoms then were fewer, not as severe, and therefore the cord was not so compressed. If the cord was less deformed there was a smaller chance of a significant sudden change in its position. In 6/5 Mr Russell had indicated that a better outcome would have been obtained with an operation in February or March 1996 but it was impossible to say that October 1995 represented an early stage in the development of the cyst. In cross-examination he confirmed that there was just as likely to be catastrophic outcome in an operation in March as in May. He said he could not give a categoric answer to such a question and had to remain "undecided".

Dr Norman Dobson Jarvie, a retired general medical practitioner, a Fellow of the Royal College of General Practitioners since 1978, who had acted as a trainer in general practice; as a general practice tutor to the University of Dundee, in an advisory capacity to the Scottish Office Home and Health Department, and the Royal College of General Practitioners, all of which indicated his eminence and reputation, was called by the pursuer to give evidence about the skill and care to be expected of an ordinary general practitioner. He had little doubt that the diagnosis of diabetes mellitus was unsustainable and that that had probably affected Dr Milne's thinking in relation to the patient. He did not suggest that a general practitioner was in a position to diagnose arachnoid cyst but was concerned that having noted an absence of a femoral pulse in October 1995 Dr Milne had specifically stated in his records "not for referral" thereby indicating a deliberate choice in a situation where, in his view, a practitioner should have referred the absence of the femoral pulse to a vascular consultant. A bilateral problem in the lower limbs meant specialist help should be sought right away because if it was bilateral it was not a straightforward mechanical problem. Since there was, Dr Jarvie thought a complaint of bilateral numbness below the knees in October 1995, there was accordingly no option for a GP but to refer that for a professional opinion. To do nothing was not a reasonable option. He said that in that situation he would have referred to an orthopaedic surgeon. That choice appeared to be because of greater speed in his own practice area of Scotland in obtaining that specialist as opposed to one in any other specialism.

It was as a consequence of that evidence that the pursuer moved a minute of amendment to which strong objection was taken. That amendment deleted specific requirement of a reference to a vascular surgeon as a consultant and substituted "appropriate specialist". The pursuer's amendment was answered by the defenders removing the admission of lack of appropriate care in not referring the pursuer to a vascular surgeon. I allowed the record to be amended in the course of the proof. I did not see how it prejudiced the defenders' case, the opportunity having been taken in their Answers to delete an admission they had earlier made.

Finally the pursuer called Mr John Andrew Murie, Consultant Vascular Surgeon in the Royal Infirmary of Edinburgh from March 1989. Once again Mr Murie produced an impressive and extensive list of his qualifications and publications and his eminence and expertise cannot be questioned. His report was 6/21 of process. He confirmed that if there was in fact no femoral pulse a reference would have been expected. An un-operated abdominal aortic aneurysm does not cause a spinal problem. On a reference, if it was unclear why there was any bilateral lower limb numbness which was not arterial or vascular and accordingly, by exclusion, was neurological, his practice would be to write back to the general practitioner and suggest a reference to a neurologist. That would depend on how serious a condition was being presented. In the present circumstances, on the information available in October 1995 he would have referred back to Dr Milne. He saw no reason to delay a spinal operation because of the aneurysm which was, in any event, attended to later, totally successfully.

The defenders called Mr R. A. Johnston, Consultant Neurosurgeon, Institute of Neurological Sciences, Southern General Hospital, Glasgow, who had been instructed for a report by the medical and dental defence union. His written report, 7/28 proceeded upon the acceptance as accurate of the general practitioners' notes with which he was provided and makes reference to significant deterioration in April 1996. His view was that someone in the pursuer's neurological condition on 13/5/96 would have had a good chance of being in the same or in an improved neurological condition following surgical treatment. The timing of the surgery, he said, made no material difference to the risk of catastrophic deterioration as opposed to some slight deterioration. In evidence he said it would be reasonable to say that the risk would have been slightly lower in the previous October when he thought the spinal cord lesion could have been discovered. In cross-examination he said that he did not agree that the earlier the operation the better the result was likely to be. Counsel pointed out to him that he had said something very much to the opposite effect in another case in a report which he had given where he had said that the recovery of function depended upon the pre-operative state. When confronted with the report in question Mr Johnston was in some difficulty in explaining how he had said such a thing but reaffirmed his stated view that the pre-operative condition ie. the actual state of the cyst made no difference to the risk of a potential catastrophic outcome. The pursuer's operation could reasonably have been expected to halt the deterioration and improve his condition at the time at which it was in fact done.

The production of the report apparently proposing a different view to that being expressed in his evidence in the present case, and his being confronted with it clearly surprised Mr Johnston and was the subject of vigorous comment by defenders' counsel. She went so far, in her final submissions, as to suggest that its use caused the pursuer's counsel to be in breach of para. 811 of the Code of Conduct for Advocates. That suggestion was based upon the proposition that the report had come into the hands of the pursuer's junior counsel for a particular purpose in another case and not for the purpose of being used to cross-examine Mr Johnston and that the report was confidential to that previous case. I do not accept the criticism of the pursuer's counsel. As a matter of generality if a witness is giving evidence to the Court which is directly contrary to a view he has previously expressed anywhere then I see no reason to have that matter kept from the Court. The effect of the previous report is, however, another matter. There can be no doubt that Mr Johnston was somewhat discomfitted and thereafter more precise and less general in the evidence he gave. Since, however, on the view to which I have come on the matter of the timing of the referrals disability, that chapter of evidence is of little significance. I see no reason to doubt that, as a matter of generality, the earlier one can treat a developing lesion the more satisfactory the outcome for the patient is likely to be.

The final witness was Mr David G. Hardie, Department of Neurological Surgery, Adenbrookes Hospital, Cambridge, a most impressive witness who, in my judgement summarised and dealt with the problems posed by the present litigation in a clear and compelling way. He has twenty years of experience in attempting to resolve problems in the spinal area. He emphasised, a matter which was not disputed, that the blood supply at the area T8/9 is particularly inadequate and that a surgeon is always conscious that if it is interfered with the result can be disastrous. A cyst displacing the spinal cord is not necessarily accompanied by symptoms. Indeed there can even be symptoms which arise without change in the size or location of the cyst. Change does not necessarily manifest itself by increase of symptoms in a linear relationship if the symptoms do increase. His practice would be to see patients with intermittent symptoms for months before operating and if operation can be avoided then it should. He regarded the cause of the paraplegia as almost certainly the result of the mechanical change in the position of the cord which could have impaired the blood supply. In the pursuer's case such a risk was present six months earlier due to the position of the lesion. If there was in fact numbness dating back to October 1995 ie. a long way, he would expect it to be the slow deterioration situation and would want to be sure that it was in fact progressing before surgery. If there was a rapid deterioration over a matter of days then he would wish to operate but would need to be satisfied that it was not a case in which one should wait and see because not all such cysts or lesions do grow progressively.

No witness suggested nor could suggest that a general practitioner could have diagnosed a subarachnoid cyst and a doctor might pass through his entire professional career without having encountered such a thing. I am unable to hold, on the balance of probabilities, that prior to February 1996 (a significant date for Mr Russell's view of how the risk could have been lessened) was it reasonable to say that the defender could or should have been on his guard about some spinal problem on the above evidence.

It was conceded originally, and in my view correctly, in the pleadings that given the finding by Dr Milne of an absent femoral pulse in October 1995 that there was a duty to refer. That reference would however have properly been to a vascular surgeon. He would have found the femoral pulse. He might or might not have expressed any view about claudication. He would have been made aware of the abdominal aortic aneurysm, indeed Dr Milne might have pointed it out since that diagnosis was drawn to his attention in 1991 in a letter from the Western General Infirmary. Whether at that stage the subarachnoid cyst would have been discovered and whether, having been discovered at that stage, it would have been treated, was not established on the balance of probabilities.

The evidence about the risk which the pursuer ran because of this condition was that according to Mr Russell the pursuer was in the same situation in February 1996 as he was on 29 April and that the risk of paraplegia was the same as it was at the time of the operation. Mr Russell when asked whether a catastrophic reaction in March 1996 was as likely as in May 1996 said, "I cannot say yes or no, may I express indecision?". He accepted that there was a risk of paraplegia even earlier than six months before the surgery took place but expressed the view, as a matter of generality, that the earlier the procedure could have been embarked upon the better the prospect of avoiding a catastrophic reaction.

I find that on the question of operating at an earlier period, a neurosurgeon, having heard the pursuer claiming that he had some numbness in his legs but who could walk and go to work, would have suspected the presence of a cyst and would have been most likely to adopt a watch and wait policy. Only if the condition should deteriorate would an operation take place. The operation was one which, if possible, should be avoided. That evidence from Mr Hardy I can accept. He was a clear and impressive witness.

Accordingly the question of whether it has been established that, on the balance of probabilities, the pursuer would not have been rendered paraplegic had he been operated upon at some time as a consequence of a referral in October 1995, given that that referral had then been made to an appropriate specialist, requires to be answered on balance of probabilities in the negative. In particular the pursuer has failed to prove, on a balance of probabilities, that the outcome for him would have been different had his operation been performed in mid March 1996, or even in February of that year. I accept the argument of counsel for the defenders that in this matter the onus rests throughout upon the pursuer and that no assistance can be derived from a consideration of McGhie v National Coal Board 1973 SC (HL) 37. I do not think that in the present case the onus shifts to the defender despite his having made erroneous diagnoses and being guilty of a failure in duty to refer to a vascular surgeon.

I was not satisfied that a referral to a consultant after the erroneous finding of a lack of femoral pulse would have resulted in the pursuer being seen by any surgeon or being operated upon by a neurosurgeon any earlier than occurred. The operation would have been delayed, given his condition at that time, because he was mobile and working. It would not have been embarked upon as speedily as it was after his admission at the end of April 1996 although even then it was deferred for 14 days. The risk which the pursuer had of paraplegia was always present. I am not satisfied that it was materially enhanced even if there was a culpable delay in referring to some consultant after October 1995. The defenders are entitled to absolvitor.

If I were in error about the above conclusions and the pursuer on balance of probabilities would not have been rendered paraplegic with earlier referral then the pursuer would be entitled to substantial damages. Counsel on each side submitted schedules of damages.

The pursuer's counsel under reference to McMillan v Munro 1993 S.L.T. 311, John Hughes 1995 G.W.D. 18-1036, Rae Hoskin, Kemp & Kemp A3-04 and Tait v Cornwall and The Isles of Scilly Health Authority, Kemp & Kemp A3-008 suggested solatium of £80,000 with one half being attributed to the past. The defenders' contention was for half of that sum with the same attribution of interest. I note that in McMillan the pursuer was aged 18 years of age at the time of his accident whereas in the present case the pursuer was 58. The attitude of the present pursuer towards his disabilities was similar to that of Mr McMillan and the attribution of solatium in McMillan to past and future was 40% to the past. I bear in mind that the pursuer in the present case had numbness with other problems and troubles, that he was at risk from his aneurysm, that he was suffering prior to his operation from urinary problems, colitis and breathlessness. In the present case, moreover, there was no guarantee that the pursuer's condition would have improved as a result of a successful operation and bearing all these factors in mind I would have considered an appropriate award of solatium to be £50,000.

The pursuer was engaged in a form of lucrative employment and but for his operation would have been able to continue to earn. It is a matter of regret that counsel were unable to agree any aspect of the quantification of damages. Matters were slightly complicated by the way in which the pursuer's accounts had been made up. He had erroneously dealt with the matter of his pension contribution but the total effect of the evidence about his earnings is, I find, that before the incident he earned £11,520 net per annum. Counsel were agreed that even with a successful outcome of his two successive operations he would not have resumed earning until 1 September 1996 and accordingly to the date of proof three years two months earnings would be appropriate. It was contended for the defenders that some discount on the previous net earnings would require to be made because the pursuer would not have been as fit as he had been before the incident. Even before the incident he was not fully fit. He suffered from ulcerative colitis, bladder problems and enlarged prostate. These would affect his ability to work, particularly by the present time. A reduction of 40% was suggested. I consider that given the various complicating factors present that this matter requires to be looked at broadly. His loss to the date of the proof can, I think, only be reasonably assessed in round figures since I cannot believe that after two major operations he would have been as fit as previously. The best the pursuer could hope for in relation to his cyst would be that he would not deteriorate and at the time of his operation he was not in a particularly robust state of health. I consider that the sum of £20,000 with interest thereon at the rate of four per centum per annum until 2 November 1999 and that eight per cent thereafter would be appropriate recognition of the pursuer's loss of earnings.

In addition for the future I think it reasonable to suppose that he might have continued to earn until he was 65 ie. a further three years after the date of proof. I was informed that the appropriate "Ogden" multiplier would be 2.79 and bearing that in mind, together with the uncertainty of the multiplicand, I again assess a round sum of £15,000 to age 65. Both these sums take into account some small amount of earnings which he is able to achieve at the moment. This varies between £500 and £1,000 per annum. Interest on the said sum of £15,000 would run at eight per cent from the date of proof. I accept however the contention for the defenders that after the age of 65 the pursuer might have earned some small sums without the incident and, since he is able to do so at the moment do not consider any loss beyond the age of 65 is appropriate.

There is a loss of pension rights agreed in the sum of £4,793.

c) Cost of care

There was evidence on this matter from the pursuer, his wife and by way of a report from Home Assessment and Advisory Services spoken to by Ms Alison J. Beattie. There is no doubt that Mrs Masterton has provided substantial support, care and attendance for her husband. The time expended by her varied in what she required to do to take care of him in his paraplegic state. It was however inappropriate of Ms Beattie to calculate sums for her hospital attendance from 26 April 1996. Such hospital attendance would have happened in any event with a successful operation to the spine and a successful repair to the abdominal aortic aneurysm. Accordingly it is not appropriate to make any award in that regard against the defender and the defenders' submission that past services should only begin on 1 September 1996 is accepted. There were three periods in which the attendance of the pursuer to assist her husband's mobility, change his clothes, deal with the fact of his paraplegia was necessary and again Ms Beattie's report was not supported by the evidence of the pursuer or defender. The number of hours in which the pursuer's wife was involved as a result of his additional disability are not easy to calculate.

The defenders' contention was that for the first three months to December 1996 seven hours a week of attendance at hospital to deal with coping with paraplegia was appropriate and I accept that. For a second period of time six months between December 1996 to July 1997 prior to the pursuer's house being altered to avoid his having to go upstairs the pursuer suggested 42 hours per week and the defenders 28. I consider that at that time what was required of Mrs Masterton was indeed of the level suggested by Ms Beattie and would award a payment on the basis of 42 hours per week. From July 1997 to date of proof (2 years 4 months) when the pursuer is better able to care for himself I think the appropriate hours spent per day can be calculated at three although split into different periods in the day. The pursuer's wife has to return home to deal with her husband whereas she would have had a choice to deal with other domestic or personal matters or have her lunch away from home at or near her employment and so I consider that 21 hours per week would be an appropriate time. Ms Beattie made calculations based on a "crossroads care rate" but I was not convinced that there was any evidence to indicate that that was the appropriate rate to apply to a wife in such circumstances. In her submissions counsel for the defenders conceded a rate of £4.00 per hour following Clark v The Chief Constable of Lothian 1993 S.L.T. 1299. That was a somewhat ungenerous calculation in this case given the date of the event in that case and the present. The "crossroads rate" has increased from £6.15 per hour to £6.53 per hour from 1996 to the date of the proof. I propose to allow £5.00 per hour for the pursuer's services to the date of the proof. This gives a total sum of £18,620 interest on which will run at the rate of 4 per cent per annum from 1.9.96 to the date of proof and at 8 per cent thereafter.

So far as future services is concerned, what will be required for the pursuer will continue at three hours per day for so long as Mrs Masterton is able to provide that service. If she is not able to provide that service then assistance can be obtained but it by no means follows that it will be necessary to employ a special care assistant or at what rate such a person would be paid. In addition Mrs Masterton might need and benefit from some respite and I propose to allow two weeks respite care at £459 per week for 10 years, the figure spoken to by Ms Beattie. Further help and assistance may well be required as Mrs Masterton increases in age but that matter being in the future it is best dealt with in my opinion by way of a lump sum to provide for such additional help. I find the suggestion by Ms Beattie that some £26,000 a year should be allowed for such an event in the future unrealistic. On the whole matter I propose to allow the sum to Mrs Masterton of £5,460 per annum for her services to be adjusted by the Ogden multiplier of 12.31 and to allow the sum of £30,000 to provide for the eventuality of the requirement of future care not being met by Mrs Masterton or in some other fashion in that period. It cannot, I think, be assumed in relation to future care that this pursuer in the condition that he is and would have been but for the incident has the "Ogden" multiplier as an appropriate figure for future costs. The figures are thus, future services £67,213; respite care £9,180 and potential additional help £30,000, a total of £106,393.

The pursuer claimed a total of £94,480 based upon Ms Beattie's report. Of the items specified therein on the evidence I would have found that the pursuer should be reimbursed the cost of his scooter at £1,995 with an allowance of £2,580 for running and maintenance costs. The scooter would not require to be replaced since in about six years time the pursuer would require a wheelchair for which the sum of £3,000 was conceded by the defenders. Items such as a transfer board, a hoist with replacements for the long arm reacher replaced six times, a mattress at a cost of £3,285 and an annual maintenance allowance of £150 to which the multiplier of 12.31 would be appropriate ie. £1,846.55. A Roho cushion at a cost of £295 with maintenance assessed by it being replaced every two years or so which would be six times ie. about £1,800 would also be appropriate. The defenders also conceded a lamp at £21 but claimed that costs of a motor car for which the mobility component of disability living allowance was surrendered. I consider that motor car would have been part of the pursuer's property in any event and make no award for this matter which, in my view, is adequately covered by disability living allowance. There are in addition costs involved by way of some extra laundry, some extra lighting and heating costs, additional costs of travel and the like. These, for somebody of the pursuer's age are rendered less significant in that some expenditure might be anticipated in any event. Viewing the matter broadly and in the light of Ms Beattie's report a broad axe figure of £1,000 per annum would be appropriate to which the multiplier of 12.31 should be applied, ie. £12,310.

This brings out a total of £26,837.55 interest thereon would have run at 8 per cent per annum from the date of the proof until payment.

This would have involved a total award to the pursuer of £241,283.55 with interest all allocated as before mentioned. However since I am unable to hold that the pursuer would not have suffered the catastrophic results he has suffered had matters proceeded any differently either by way of earlier referral or an operation in March 1996 I grant decree of absolvitor.