Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 15
PD1528/12	OPINION OF LORD STEWART in the cause ANNE MACKINNON Pursuer; against THOMAS HADFIELD t/a BEN NEVIS INN Defender: ________________

Pursuer: Galbraith, advocate; Balfour + Manson LLP Solicitors, Edinburgh, for Macleod & MacCallum, Inverness

Defender: M Stuart; McClure Naismith LLP Solicitors

31 January 2014

[1] The pursuer is 61 years old. When she was 57 and working as a cook at a restaurant known as the Ben Nevis Inn, near Fort William, she had an accident. The Inn has a maximum of 200 covers. There is a bunk house attached. The accident happened on 23 August 2009. The pursuer fell down a flight of outside wooden stairs leading to the cold store. Her employer, the defender, who owns the restaurant and trades as "Ben Nevis Inn", has admitted liability. The amount of damages is in dispute. The pursuer is suing for £150,000. I heard evidence with submissions on quantum of damages over four days from 11 to 14 June resuming and concluding on 30 July 2013. Having made avizandum I have assessed damages at £89,302 inclusive of interest to the date of decree, which is assumed to be 21 January 2014.

[2] Undoubtedly the pursuer sustained what can be loosely described as a lower back injury in the accident. The main issues are about the nature of this injury and its effect and duration having regard to a pre-existing but mild process of degeneration in the pursuer's spine. The issues largely resolve themselves into a difference of expert opinion. To understand the difference the medical evidence has to be referred to in some detail: but, first, there are objections to the evidence to be dealt with.

Objections to the evidence (1)

[3] During the proof the pursuer took a number of objections to lines of cross‑examination and to lines of evidence embarked on by the defender. I reserved most of the objections. In closing submissions pursuer's counsel insisted on her objections insofar as directed to excluding from my consideration (1) material about a second accident and (2) evidence about a male called "Ian" who reportedly lived with the pursuer. This section deals with (1) material about a second accident.

[4] The significance of the objection to material about the second accident can be understood by reference to the following summary. The claim-accident happened on 23 August 2009. The pursuer attended at Accident & Emergency [A & E], presumably at Belford Hospital, Fort William, at some time before 1 September 2009 on which date the attendance at A & E was recorded in the general practitioner [GP] clinical notes. The pursuer's pleadings state that the attendance was on 25 August 2009. No discharge report from A & E to the GP on that occasion has been put in evidence although what bears to be the document in question dated 25 August 2009 has been lodged as No 6/10/2 of process. More than a year later on 14 October 2010 the GP clinical notes record a "telephone encounter" in which the pursuer reportedly stated: "Fell down stairs again at work not as bad as last time looking for some advice re painkillers." The next entry in the GP clinical notes is for a consultation on 5 November 2010 when it is recorded: "Fell downstairs again 6 weeks ago and has aggravated injury." This would place the second accident towards the end of September 2010. On 5 November 2010 the GP referred the pursuer, for the first time, for physiotherapy. The next entry dated 26 November 2010 is in the following terms:

"Low back pain Back still very painful. painful across lumbar area approx L5. Xray ok. Some radiation to both thighs, back worse on twisting, stretching seems to help. Imp musculoskeletal painGoing to Australia for 5 weeks, suggested maybe seeing private physio/osteopath when she is there, referred for physio here on return. Continue analgesia in interim."

The pursuer explained that she had to stop physiotherapy on 22 April 2011 because she was in so much pain. She also gave up work about this time - I deduce on 20 April 2011 - because of her symptoms. There is much evidence - including the pursuer's apparent self-report that the second fall had "aggravated" her injury - which looks as if it is capable of supporting the conclusion that the pursuer's condition and situation deteriorated after and because of the second accident. The defender might possibly have presented a case that the pursuer's continuing problems are attributable solely to the second accident, but has not done so.

[5] Neither the summons nor the defences mentions the second accident. None of the expert medical reports produced in evidence mentions the second accident. In relation to the first accident, the pursuer avers:

"The pursuer fell on her right side, and suffered injury to her back, neck and right arm... It is likely that she suffered an injury to the sciatic nerve in the region of her right buttock. The pursuer continues to suffer from pain in her back and right leg. Her current level of symptoms are [sic] permanent."

The defender avers that the pursuer had pre-existing back symptoms and that: "It is likely that it is degenerative change that is causing her low back pain and that she would have had further degenerative back pain by the age of 65, regardless of the accident."

[6] Clearly there is no issue between parties on record about the second accident. Evidence was taken from the pursuer during examination-in-chief about the second accident with reference to the GP clinical notes for 5 November and 26 November 2010. In cross-examination of the pursuer, the GP clinical notes for 14 October and 5 November 2010 were put without objection. The principal point being explored at that stage was to do with wage loss, specifically whether, as averred by the pursuer, she found it increasingly difficult after the claim-accident to undertake her duties and whether she reduced her hours "from five days a week, to four days and then to three" before she was "signed off" in April 2011. At the close of cross-examination I clarified a number of points with the pursuer. She told me that radiation of pain to her right leg started shortly after the claim-accident, within a month to six weeks, and got worse and more frequent as time went on. Defender's counsel did not take the opportunity to cross-examine further. Neither party asked Dr John Macleod, FRCA, the pursuer's treating pain clinician, about the second accident. The matter next arose during cross-examination of the pursuer's orthopaedic expert Mr William Macleod, FRCS. Pursuer's counsel objected to questions put, ostensibly, about the relevance of the second accident to the issue whether the pursuer's symptoms resulted from the claim-accident or were an exacerbation of a pre-existing degenerative condition.

[7] All entries in the pursuer's GP clinical notes relating to the back complaint for the period from 1 September 2009 to 19 April 2011 were put in evidence at the beginning of examination-in-chief of the pursuer's GP Dr Elvire Feeney. (At this stage the question occurred to me again: "When did the pursuer's leg pain start?" The pursuer had previously told me that the leg pain started within weeks of the claim-accident, something which did not seem to me to be borne out by the clinical notes which were now in evidence.) In cross-examination defender's counsel took it from the witness that, immediately after the claim-accident, the GP notes recorded that pursuer was walking well; and that the first note of difficulty with walking is dated 22 March 2012. Pursuer's counsel then objected to a line of cross-examination about the second accident insofar as directed to showing that the second accident "has caused or contributed to the pursuer's injury". There was discussion about whether and to what extent the second accident had been raised with previous witnesses. Defender's counsel stated that he was not arguing novus actus interveniens, accepting that the defences would have to give notice of such a line. He submitted that the second accident was part of the history and was relevant to points that were in issue about diagnosis and prognosis: Dr John Macleod, FRCA, said counsel, had not been asked about how the first accident might have caused injury to the sacroiliac joint. On the basis of the declaration by defender's counsel I reserved all questions of competency and relevancy. Dr Feeney subsequently explained that the first record of "back pain with radiation" (meaning radiation to one or both lower limbs) was made on 26 November 2010 in a note which, as I say above, had been put in evidence by the pursuer.

[8] Pursuer's counsel objected to the defender's orthopaedic expert, Professor Court-Brown, FRCS, being asked about the relevance of the second accident to the pursuer's current condition. The professor answered, under reservation, that, logically, if the pursuer didn't get better after the first accident she would not get better after the second accident. He said that he had not been asked to comment on the second accident. Questioned further, subject to objection, he answered under reservation that the pursuer's symptoms had worsened after the second accident: it was all part of the same progression of symptoms that started in the 1980s, a fairly common picture. Without the second fall the pursuer would have gone on complaining, continuing in much the same vein. In re-examination, again under reservation, the professor opined that the second accident would advance the pursuer's back problems by a couple of years.

[9] On recall Dr William Macleod, FRCA, was cross-examined about the effect of the second accident and answered, under reservation, that when he saw the pursuer her pain was particularly severe in the right buttock. This was her major and ongoing complaint.

[10] In the light of the information that has been elicited and the use which the defender wishes to make of it, I have no hesitation in repelling the pursuer's objections to the defender's lines about the second accident. I reject the submission that the pursuer has not had fair notice of these lines. It seems reasonably clear to me that neither side had mastered the medical records before the proof. None of the medical experts was instructed to offer an opinion about the significance of the second accident. The second accident was first put in issue during the proof by the pursuer. It is of course for the pursuer to prove the connection between the claim‑accident and the ongoing symptoms.

[11] The case presented in the pursuer's pleadings attributes pain in her back and right leg to the claim-accident. The only pathology referred to is injury to the sciatic nerve in the region of the right buttock. The pursuer's pleadings must have been finalised at the stage when, at least so far as the pursuer's advisers understood matters, Dr John Macleod had postulated sciatic nerve involvement but before the stage at which he effectively excluded injury to the sciatic nerve by his diagnostic anaesthetic blocks [letter from Dr John Macleod to Dr Elvire Feeney dated 23 March 2012; report by Dr John Macleod dated 19 April 2012]. The evidence as a whole emphatically negatives sciatic neuropathy as a continuing cause of the pursuer's symptoms. The case developed in evidence by the pursuer is that her symptoms are "related to" the right sacroiliac joint. This is a case which is not obviously foreshadowed in the pleadings. The defender is well entitled to explore the connection between the pursuer's presentation, the claim-accident and the now‑postulated sacroiliac joint problem.

[12] For completeness, since the proof I have noticed that the pursuer had proposed a late amendment to add averments to the effect that her treating consultant [Dr John Macleod, FRCA] had recommended denervation surgery; and that she had developed a depressive disorder for which she was receiving treatment. A consultant psychiatrist was included in her witness list and his reports were lodged as productions. In answer the defender proposed to aver:

"The pursuer has not injured her sciatic nerve. The pursuer does not have nerve pain in her leg. Denervation surgery is not appropriate. Any ongoing symptoms suffered by the pursuer are musculoskeletal. These are not caused by the accident. Not known and not admitted the pursuer is suffering from a depressive disorder as a consequence of her ongoing symptomatology. Esto the pursuer is suffering a depressive disorder, not known and not admitted that said depressive disorder is caused by the accident."

The pursuer did not proceed with the amendment. The defender did not try to turn his answers or any part of them into an amendment. No expert psychiatric evidence was led.

Objections to the evidence (2)

[13] This section deals with the pursuer's objections to (2) evidence about a male called "Ian" who reportedly lived or lives with the pursuer. The first evidence about Ian was volunteered by the pursuer's daughter Linda Dignan during cross‑examination by defender's counsel on the issue of services. Mrs Dignan stated: "Ian is a friend of my mum's - he lives in the house as a lodger - she shares living accommodation with him." The next question, the question which prompted the objection, was about whether Ian was the pursuer's partner. Pursuer's counsel objected on the basis that the question had not been put to the pursuer and that there was no notice in the pleadings. I repelled the objection in hoc statu and allowed the line under reservation. Mrs Dignan stated that Ian was not a current partner, he was a previous partner. Neither Ian nor the pursuer had a current partner. The pursuer and Ian met in 1997 and were partners till 2007 or 2008. They continue to co-exist under the same roof. He would help out as and when he could. Ian would fetch the coal for the fire if required. Mrs Dignan explained to me that her mother received disability living allowance, mobility component only or with the mobility component, and that she had a bus pass. Mrs Dignan's understanding was that her mother had nerve damage at the base of the spine which gave her symptoms in her lower back and legs. Cross-examined further she stated that she did not know the name of the damaged nerve.

[14] Thomas Hadfield, the defender, gave evidence under reservation to the effect that he knew Ian. Ian is the pursuer's partner. Ian and the pursuer live together as partners.

[15] In submissions, pursuer's counsel renewed her objections on the basis that no notice had been given in the pleadings and that the matter of Ian had not been raised with the pursuer. Again I have no hesitation in rejecting the submission and in repelling the objections. If a pursuer is making claims for services in terms of the Administration of Justice Act 1982 ss 8 and 9, as this pursuer is, it is incumbent on him or her to give a full and accurate account of the domestic arrangements. It would be unjust to prevent the defender in this case from relying on surprise evidence that has emerged about the pursuer's domestic arrangements. If the pursuer has been suppressing information about her domestic arrangements, exaggerating her symptoms and claiming benefits I would be concerned about issues of "secondary gain": but nothing of that sort has been suggested by the defender.

The medical history

[16] The testimony offered by the pursuer's GP Dr Elvire Feeney amounted to putting the pursuer's medical history in evidence through the GP records. On examination on 3 September 2009, about two weeks after the claim accident, the pursuer presented with a large bruise at the right buttock and tenderness to touch. Something over two weeks later the complaint included general low back pain and tenderness to touch. Dr Feeney stated that her initial impression in 2009 was that the pursuer had suffered a soft tissue injury which should have healed in eight weeks or so. Occasional attendances with back symptoms continued into 2010. There were no attendances for back pain for the five-and-a-half month period between mid-October 2009 and 30 March 2010. The pursuer presented with diffuse symptoms on three occasions from 30 March to 4 June 2010. On 7 May 2010 the presenting complaint included "lots going on - not sleeping well, trouble with neighbours". She was prescribed diclofenac, an anti-inflammatory painkiller, omeprazole, to reduce her stomach acidity, and amitriptyline, to help her sleep. The last attendance before the second accident was on 4 June 2010. The complaint was of pain and tenderness in the lumbar spine at L3-4 level and "no sciatica". As previously stated, Dr Feeney gave evidence under reference to the GP records that there had been a second accident which apparently occurred towards the end of September 2010; and she gave evidence about the attendances following the second accident.

[17] The GP records show that the pursuer had a course of physiotherapy from 5 November 2010 to 22 April 2011 (with no apparent benefit). On 23 March 2011 the GP referred the pursuer for a neurosurgical opinion. From 20 April 2011 the pursuer was continuously certified unfit to work by her GP with "back pain". On 25 May 2011 Mr Hamdy Kamel, MBBS, MSc, MD, FRCS, consultant neurosurgeon and honorary clinical senior lecturer in the University of Aberdeen examined the pursuer. On 13 June 2011 he reported to the GP that the pursuer's symptoms probably had a musculoskeletal rather than a neurogenic cause but thought it worthwhile to arrange an MRI scan. The MRI was performed on 10 June and the imaging report was (apparently) transmitted direct to the GP. On 23 June the pursuer was informed that the imaging showed "mild degenerative change only nil else". The pursuer was referred for a second course of physiotherapy from 24 June 2011 which she did not attend. She had private osteopathy sessions weekly, costing £32 per session, from 27 June to 31 August 2011 with limited benefit. On 8 August 2011 Mr Kamel formally reported: "As clinically suspected [the imaging] has shown only minor degenerative changes with no neurological compression." The recommendation was for physiotherapy and conservative measures. On 13 August the osteopath reported to the GP. His working diagnosis was "just chronic segmental facilitation". The letter concluded: "Despite the MRI results suggesting that further surgery is not required, I wonder whether she has had an orthopaedic consultation, and whether a facet block could be appropriate."

[18] The GP referred the pursuer to Dr John Miller, FRCP, FRCR, consultant radiologist at Raigmore Hospital, Inverness, for fluoroscopy and anaesthetic blocks of the lumbar spine. On 4 October 2011 Dr Miller performed a right L5 selective nerve root block with lumbo-sacral facet joint injections. The injections gave relief for perhaps three weeks. In the meantime the pursuer had been turned down for disability living allowance and was in the course of appealing. By this stage she was presenting to her GP with depressive symptoms and was being prescribed amitriptyline and fluoxetine. The pursuer's statutory sick pay of £163.20 a fortnight came to an end on 11 November 2011. At the end of 2011 the GP referred the pursuer to the "pain clinic" meaning NHS Highland Chronic Pain Management Service. The pursuer completed the pain management service questionnaire on 5 December 2011. She stated, among other things, that all areas to her life - job, friends, family life, social life, hobbies and exercise - had been adversely affected to the maximum extent by her pain. The pursuer had an initial telephone consultation with the pain management service clinical nurse manager on 17 January 2012. The presentation was recorded as follows:

"[The pursuer] sustained a fall in September 2009 down a flight of stairs... Since then she's developed significant lower back pain which radiates into both buttocks mainly her right buttock down the right side of her thigh, calf and sole of her right foot and toes..."

The pursuer was accepted for examination and treatment at the pain clinic under the care of Dr John Macleod MBChB, FRCA. (An account of her treatment was subsequently given in evidence by Dr Macleod.) In her evidence Dr Feeney explained that during 2011 she came to be concerned that there might be a disc lesion. She made a neurosurgical referral because of what seemed to be neuropathic pain, apparent absent reflexes, the pursuer's complaints of a "burning sensation" and of pain radiating to the lower limbs. The neurosurgical investigations excluded a neurological cause. On that basis Dr Feeney found the pursuer's symptoms to be inexplicable.

[19] Consultant-level expert evidence was offered by Mr William Macleod, MB ChB, FRCS, consultant trauma and orthopaedic surgeon, and Dr John Macleod, MBChB, FRCA, consultant anaesthetist and pain physician, for the pursuer and, for the defender, by Professor Charles Court-Brown, MB ChB, FRCS, formerly consultant orthopaedic surgeon at the Royal Infirmary of Edinburgh and Professor Emeritus of Orthopaedics in the University of Edinburgh. Their evidence faces me with a choice between two theories, both of which may be correct and neither of which can demonstrate a firm scientific basis. The pursuer's evidence does not greatly assist. I do not find her to be a satisfactory witness, either as to the precise nature of her symptoms or as to her medical history. It could be that she has telescoped some events in her recollection, forgotten other events which do not fit with the mental picture she has formed or that she is ultra-sensitive to her symptoms. I do not know. Ultimately I prefer the explanation offered by the defence as to the cause of the pursuer's symptoms.

Opinion of Dr John Macleod MB ChB, FRCA

[20] Dr John Macleod MB ChB, FRCA, consultant anaesthetist specialising in chronic pain management, Caithness General Hospital, Wick, is currently treating the pursuer. He set up the NHS Highland Chronic Pain Management Service in 2010. The service helps patients with chronic pain to manage their symptoms. Approaching pain management from a "multidisciplinary viewpoint" gives the best results. The pursuer attended the witness's clinic at Invergordon on 23 March 2012 on referral from her GP. By letter of the same date Dr Macleod reported to the GP that the patient was "extremely distressed". His clinical impression was that the complaint of low back and buttock pain related to the right sacroiliac joint. He discerned some tenderness over the right sciatic nerve and wondered whether the fall had caused some trauma to the nerve. He proposed a combination of right sacroiliac joint and sciatic nerve infiltration.

[21] As to the background, Dr Macleod understood from the pursuer that she had developed significant low back and right leg pain, described as constant since the time of the claim-accident. The pursuer gave a history of landing on the edge of a step resulting in marked tenderness round the right sciatic nerve in the area of her buttock. The witness is not sure of the significance of the symptoms reported to the GP on 19 September 2011 namely "severe burning in the right buttock" and a feeling of the right buttock being "split in two". This led to the referral to Raigmore Hospital, Inverness and on 4 October 2011 Dr John Miller, FRCP, FRCR, the consultant radiologist there, had performed a right L5 selective nerve root block and lumbo-sacral facet joint injections. The treatment had been unsuccessful: on 18 November 2011 the GP reported only two-and-a-half weeks' relief. This made Dr Macleod think that there might be other reasons for the pain, primarily sacroiliac joint problems. On examination there were sciatic symptoms round the right ankle and foot which might have fitted with the pursuer's description of the accident.

[22] On 24 May 2012 the pursuer was admitted to Golspie Hospital under the care of Dr Macleod for right sacroiliac joint injections and a right sciatic nerve block. Dr Macleod also injected the midline over the lower lumbar spine with some local anaesthetic and steroid. The patient had benefit reportedly for about two months. A good result would have been pain relief for three to four months. The pursuer's response related mostly to the right sacroiliac joint area. On 29 November 2011 the pursuer attended for a right sacroiliac joint injection on its own. This intervention provided relief for over two months. It seemed fairly clear to Dr Macleod that the pursuer's chronic symptoms were due to the accident. There was a clear history of a fall and trauma in the area in question.

[23] Dr Macleod's most recent contact with the pursuer was at his clinic in April 2013. He discussed increasing her anti-depressant dosage and further intervention to manage her pain long-term. He could offer the pursuer cooled radiofrequency denervation of the sacroiliac joint. The procedure is a new one. If successful it would last for two years or so before further treatment is required. In Dr Macleod's experience the procedure has been successful in patients who respond to a local anaesthetic block. These patients are still pain free after one year. The local anaesthetic block is successful in about 50 per cent of cases. He cannot predict the outcome for the pursuer until the trial of the local anaesthetic block. There are few other options. It is always possible to repeat injections but this should not be done more than twice a year because of the risks. If there were a reasonable response to denervation the procedure could be repeated in the event of re-innervation after three or four years.

[24] In cross-examination Dr Macleod agrees that the initial assessment was carried out over the telephone by the Chronic Pain Management Service clinical nurse manager. This happened on 17 January 2012. At that time the pursuer complained of significant lower back pain radiating into both buttocks, mainly the right buttock, down the right side of her thigh, calf and sole of her right foot and toes. The pursuer reportedly stated that she had gained three weeks benefit from the "left" selective L5 nerve root injection with lumbo-sacral facet joint injections in November 2011.

[25] Dr Macleod explains that the sacroiliac problem is essentially musculo‑skeletal. Initially he wondered whether there was involvement of the sciatic nerve as well. The last treatment on 29 November 2012 was for the sacroiliac joint alone. He had settled on the sacroiliac joint as the main issue to be treated. The reported 80 per cent relief is a very significant benefit. Because of the benefit cooled radiotherapy denervation is a possibility. The doctor is unable to predict the outcome until the pursuer has a trial local anaesthetic block. Even then there will be a question as to whether the treatment would be effective and how long it would last. The witness explains to me that the lesion created would in due course re-innervate.

Opinion of Mr William Macleod, MB ChB, FRCS

[26] Mr Macleod MB ChB, FRCS, (42) is a consultant surgeon in trauma and orthopaedics at Raigmore Hospital, Inverness. He has held the post since 2005. He prepared a medico-legal report dated 25 April 2012 following an examination of the pursuer earlier that day and having studied her general practitioner and hospital records. In evidence he adopts his report dated 25 April 2012 [No 6/2 of Process] and amplifies it to some extent. The main conclusions of his report are:

"[The pursuer] has had ongoing back and right leg pain since [the accident]. The leg pain which she describes as burning has a neuropathic sound to it and I would agree with Dr John Macleod's opinion that this may be due to direct trauma to the sciatic nerve in the buttock region.

"I think it unlikely given the passage of time since the accident that this will improve further and her current level of symptoms should therefore be considered permanent in terms of the burning pain in her right leg.

"Although she had no history of significant back problems in her history other than one episode reported in the GP notes some years ago there is evidence of degenerative changes on her MRI scan. These will [sic] predate her injury."

Mr Macleod reports the pursuer as telling him that she had not worked since the claim-accident due to her back pain. He reports the pursuer's past medical history as "unremarkable": the pursuer told him that she had no history of back problems. Mr Macleod notes multiple entries in the general practice notes since 3 September 2009 "relating to ongoing pain as a result of the fall". He notes correspondence and reports since the second half of 2011 about pain management interventions including the letter from Dr Macleod following an assessment on 23 March 2012 in which Dr Macleod postulated that the pain "related to her right sacroiliac joint" and speculated as to the possibility of direct trauma to the right sciatic nerve "causing some of the symptoms in her right leg". Mr Macleod opines that if the pursuer were to have a satisfactory response to a sacroiliac joint injection that would imply that the sacroiliac joint is a least a major part of the problem. Mr Macleod agrees with the passage in Professor Court-Brown's report to the effect that the accident on 23 August 2009 "has caused [the pursuer] to have significant back pain". He hesitates to accept Professor Court-Brown's opinion about the development of further degenerative back pain stating that there is "no hard science" for the development of degenerative back pain, for its development by any specific age or for its severity if it does develop. He says: "If she hadn't had the accident she would possibly have developed back symptoms at some stage."

[27] In cross-examination Mr Macleod states that the "burning sensation" described by the pursuer would be consistent with a compression-type injury of the sciatic nerve which would have resolved within months. On consideration he thinks it "highly unlikely" that there is (ongoing) injury to the sciatic nerve. He agrees that his findings on examination include that he was "unable to demonstrate any neurological abnormality in the lower limbs" and that "sciatic stretch tests were negative". There is no objective proof of injury to the nerve. The pursuer was perfectly clear that she had had no problems with her back before the accident. The pursuer also denied having any subsequent injuries. Mr Macleod agrees that entries in the GP notes about pre-accident back symptoms on 1 and 14 July 1988, 21 April 1989, 4 February 1991 and 11 March 1998 are relevant. He also agrees that entries relating to the subsequent accident and the development of symptoms after the subsequent accident are relevant: but he maintains that the pursuer's current symptoms are the result of the (first) accident. A prior history of back symptoms increases susceptibility to symptoms following trauma.

[28] When Professor Court-Brown's report is put for his comment, Mr Macleod states that he is unaware of any scientific basis for the professor's opinion that the pursuer would probably have had some further degenerative back pain by the age of 65. Opinions of that kind rely on personal clinical experience. Mr Macleod does not agree that the accident on 23 August 2009 "exacerbated [the pursuer's] age-related spinal degenerative changes".

Opinion of Professor Charles Court-Brown MD, FRCS

[29] Professor Charles Court-Brown MD, FRCS, FRCS Ed (Orth) is formerly Professor of Orthopaedic Trauma in the University of Edinburgh. His evidence was interposed in the pursuer's case of consent. He examined the pursuer on 19 November 2012 and, having reviewed copies of the general practitioner records, the hospital records and the report of Mr William Macleod FRCS, he compiled a medico-legal report on 20 November 2012. In his report he stated that he could not open the CD of the X-ray and MRI images from NHS Highland and commented: "I do not think [the CD] would have been of significant value because the x-rays and MRI scan have been well reported by Consultant Radiologists."

[30] In evidence, Professor Court-Brown adopts his report. The pursuer told Professor Court-Brown, as she had told Mr William Macleod FRCS, that she had had no back pain and no buttock pain before the accident. The pursuer did not tell the professor that she had worked since the accident. On reviewing the notes the professor found occasional references to low back pain from 1988. The MRI scan of the pursuer's lumbar spine on 20 June 2011 was reported as showing evidence of mild degenerative change. Professor Court-Brown notes that the consultant neurosurgeon who reviewed the pursuer at Aberdeen Royal Infirmary on 25 May 2011 felt that the pursuer's pain was attributable to a musculoskeletal cause without nerve involvement.

[31] The salient parts of the opinion section of the professor's report are as follows:

"Mrs MacKinnon clearly did have a very unpleasant fall on 23^rd August 2009 and she has exacerbated her age-related spinal degenerative change which has been shown on the MRI scan she had later... Mrs MacKinnon's MRI scan shows only minor degenerative change despite her age of 60, but it is degenerative change that is causing her low back pain.

"There has been a suggestion that she has had an injury to her sciatic nerve and I think this is highly unlikely... I think she simply has back pain with some referred pain into her right leg. This is clearly what Mr Kamel [sic] thought as he obviously did not entertain any thought of surgical decompression of the lumbar spine.

"I note that Mr Macleod feels that the leg pain has a "neuropathic sound to it", but this is not really a particularly useful comment. She simply has some pain in her right leg and referred pain into the leg is not uncommon in people who have low back pain...

"The General Practitioner records indicate clearly that Mrs MacKinnon has complained of significant low back pain since the injury... and I think one must say that the accident that she had on 23^rd August 2009 has caused her to have significant back pain... I think it likely that Mrs McKinnon would have had some further back pain in the future as she aged. I think she probably would have had further degenerative back pain by the age of 65. The apparent intensity of back pain may relate to Mrs MacKinnon's underlying personality but whatever the cause of it, it is quite clear that she had had significant back pain since the injury and I doubt that she is going to return to her work or to her previous social activities..."

In relation to the postulated sacroiliac joint pain, Professor Court-Brown states that the sacroiliac joint is very difficult to injure.

[32] With sacroiliac joint injury the patient cannot walk at all. The professor does not think that there has been sufficient trauma to damage the sacroiliac joint. He accepts that an anaesthetic infiltration of the joint is a way to determine whether there have been symptomatic changes in the joint: the problem is that there is a very high placebo effect. You cannot get degenerative changes in the joint, says the professor, without movement in the joint; and the sacroiliac joint is not a joint that moves. He does not think that you can get significant pain because you need movement to get pain.

[33] Professor Court-Brown says that he has not been asked to comment on the relevance of the second injury. The logic is, he says, that if the pursuer did not get better after the first accident she would not get better after the second accident. His prognosis is an educated estimate based on examining many patients like the pursuer. On that basis it is his opinion that "she probably would have had further degenerative back pain by the age of 65". The pursuer had a much more severe trigger by falling downstairs. After the second accident the symptoms worsened. It was all part of the same condition that started in the 1980s. The progression of symptoms is fairly common. Without the second fall the pursuer would have gone on complaining. The witness explains to me at one stage that the common pattern includes triggering events and that perpetuation of pain can be psychogenic.

[34] The covering letter to the professor's report, also dated 20 November 2012, is put in evidence during cross-examination. In the letter Professor Court-Brown states: "I think it is only reasonable to say that there is no evidence that she is fabricating her symptoms and it would seem that her back pain has followed the fall."

[35] In cross-examination Professor Court-Brown describes chronic pain management as a "recent" or "young" speciality. He says that treating and managing chronic pain was within his expertise as an orthopaedic surgeon for many years. He had retired two months previously. He explains that there is no strict correlation between degenerative pathology and pain. The pathology demonstrated by MRI scans is not a guide to symptoms. "Chronic pain" is "a minefield". He rejects the suggestion that the pursuer's history does not demonstrate a common pattern: it is common for back pain to increase with age and with some sort of trigger.

[36] Professor Court-Brown refers from recollection to an article in Pain Physician in 2009 which, according to the professor, records a false positive rate for sacroiliac nerve blocks of up to 50% and a high placebo effect. (This article is not produced: the reference may be to M Rupert and others, "Evaluation of Sacroiliac Joint Interventions: A Systematic Appraisal of the Literature", Pain Physician, 2009; 12; 399‑418.) The professor refers to the value of meta-analysis, a term that is not explained but which I understand to mean the review, comparison and combination of many studies. Professor Court-Brown refers from recollection to a recent study in the University of Minnesota which shows that sacroiliac pain tends to be related to osteoarthritis in hip joints. (This article is not produced. It may be P Morgan and others, "Symptomatic sacroiliac joint disease and radiographic evidence of femoroacetabular impingement", Hip Int. 2013 Mar-Apr; 23(2):212-7.) In the pursuer's case she reported relief of surprisingly long duration from lignocaine infiltration of the sacroiliac joint and, separately, had reported benefit from a facet joint block. These results suggest a multifactorial condition which also comes down to the patient's personality. The witness states that the standard teaching is that the bulk of pain comes from mobile joints. He does not know what percentage might come from the sacroiliac joint but the majority comes from mobile joints. Professor Court-Brown accepts that Dr John Macleod's injections provide evidence that the sacroiliac joint is implicated but it is not evidence to which, apparently, the professor attaches weight.

[37] In answer to my questions the witness says that back pain like the pursuer's is quite commonly felt by people in their mid-60s. Without the accident the pursuer would never have returned to a pain free condition although she would probably not have had to give up work. The index accident has made a majority contribution and its effect will continue for some years although the second accident did not help.

[38] In re-examination Professor Court-Brown confirms that, in his opinion, the pursuer's back pain would have got worse even without the accident. People get more triggers for back pain as they get older. The professor appears to accept the possibility that there might be a small sacroiliac component to the pursuer's symptoms but, if there were, it was not traumatic in origin but degenerative.

The opinion of Dr John Macleod, MB ChB, FRCA, recalled

[39] On the pursuer's motion unopposed I allowed Dr John Macleod to be recalled to answer the criticisms made by Professor Court-Brown of Dr Macleod's diagnosis and treatment plan. On recall Dr Macleod says that the professor's opinion on pain medicine is out of date. Pain management can demonstrate maturity as a speciality in that there is now a Faculty of Pain Medicine with its own exams and qualification. Dr Macleod states that he has worked in the area for 20 years. Fifty per cent of his patients are referred by orthopaedic surgeons. The surgeons tend to pass on patients for whom there was no surgical remedy.

[40] Dr Macleod refers to four publications in the period 2004 to 2012 to support his opinion that sacroiliac joint pain is a recognised and treatable condition. In what follows, I refer to the passages that were put in evidence in chief and in cross‑examination. I notice that Dr Steven P Cohen MD, Johns Hopkins School of Medicine, Washington DC, USA is author or co-author of three of the articles. The most recent publication is an international review article by Vanelderen and others including Dr Cohen. According to the abstract, the sacroiliac joint accounts for "up to" 30 per cent of chronic mechanical low back pain. The pain is difficult to distinguish from other forms of low back pain based on history. Sacroiliac blocks are the diagnostic gold standard but must be interpreted with caution because of false results. Infiltration of the joint with local anaesthetic and steroids gives the best treatment outcomes. Dr Macleod states that the pursuer's symptoms, focused on the gluteal region and extending to the back of the thigh, are similar to the typical distribution as shown in fig. 1. The diagnostic value of sacroiliac blocks using anaesthetic to infiltrate the joint remains controversial according to the text: but the witness expresses the view that the use of two blocks gives greater confidence. Referring to the confounding effects of sedation and superficial anaesthesia Dr Macleod states that no sedation was used in the pursuer's case and only minimal local anaesthesia. It is "most likely" that the pursuer's symptoms relate to the sacroiliac joint secondary to the trauma she has received. The radiofrequency treatment discussed at page 474 is the intervention proposed for the pursuer. The flow chart at fig. 2 shows the path to radiofrequency followed in the pursuer's case [P Vaneldern and others "Sacroiliac Joint Pain" in J Van Zundert and others (eds), Interventional Pain Medicine according to Clinical Diagnoses (Oxford, 2012), 470 at 470‑475].

[41] Dr Macleod also concurs with and adopts passages in the 2005 review article by Steven P Cohen MD. The passages occur in the section entitled "Mechanism of Injury". Potential causes have been reported to include bracing one's legs in a motor accident. A retrospective study by Chou et al found that trauma was the cause of pain in 44% of patients. According to Dr Macleod the description in the article "entirely reflects the circumstances of the pursuer's injury", in particular the pursuer's fall onto her buttock. The article by Foley et al confirms that the sacroiliac joint "is innervated and capable of producing pain". Dr Cohen and others had conducted a systematic review of the literature on interventions in 2007. The database search produced 1,670 articles of which thirteen were reviewed for diagnostic interventions. (Ultimately, reading the context, I see that, after the exclusion of review articles and single block studies, seven articles describing five double block studies were submitted to analysis.) Dr Macleod adds that degenerative changes take time to develop and that the time-frame was not long enough in the pursuer's case, by which I understand him to mean that degenerative changes attributable to the accident would not have become symptomatic within the period of weeks after the accident when the pursuer complained of symptoms [S Cohen, "Sacroiliac Joint Pain: A Comprehensive Review of Anatomy, Diagnosis and Treatment", Anaesth Analg 2005;101:1440-53; B Foley and another, "Sacroiliac Joint Pain" Am J Phys Med Rehabil 2006;85:997-1006 at 998; H Hansen and others, "Sacroiliac Joint Interventions: A Systematic Review", Pain Physician 2007; 10:165-184].

[42] In cross-examination Dr Macleod states that if the accident had precipitated symptoms from pre-existing degenerative changes you would expect to find evidence of the pre-existing changes on X-ray. Referred to Dr Cohen's 2005 review article, page 1440, the witness accepts that degenerative changes in the sacroiliac joint begin in puberty and continue throughout life, etc. The sacroiliac joint is partially synovial and partially fibrous. In general degeneration in synovial joints is brought about by movement. He agrees that the higher the degree of movement in a joint the greater the risk of degeneration and pain. If the sacroiliac joint accounts for 10%-30% of chronic mechanical low back pain, then 70%-90% must be of non-sacroiliac origin. Dr Macleod accepts Dr Cohen's statement that the diagnostic validity of sacroiliac joint nerve blocks remains unproven. There are two main reasons, namely (1) the placebo effect and (2) false-positives resulting from poor placement and extravasation of the anaesthetic into surrounding pain-generating structures. The witness accepts that a large part of his diagnosis in the present case is based on the sacroiliac blocks. The doctor is aware that the pursuer had previously experienced lower back pain. Her sacroiliac blocks were carried out under radiological guidance, with no sedation and with minimal local anaesthetic. The second block was performed by a colleague to assist in eliminating bias.

[43] The witness is questioned about the right L5 selective nerve root block and facet joint injections, performed on 4 October 2011, which reportedly gave the pursuer three weeks' relief. His response is that there was no record of the degree (as opposed to the duration) of benefit; and he believes that the injection was not controlled and that it was difficult to say which structures had been affected. He assumed that the injection was given by Dr John Miller. (Since Dr Miller is a consultant radiologist I assume this means, looking at the terms of the radiology report, the whole of which was put in evidence, and the GP note of 19 September 2011, which was also put in evidence, that the procedure was carried out under fluoroscopic radiological visualisation.) The witness agrees that degenerative changes in the hips and the lumbar spine generate similar symptomatology.

[44] Dr Macleod accepts that he is at a disadvantage for the reason that he is "not terribly familiar with the history": but, as he understands it, immediately prior to the accident the pursuer had no lower back pain. The history he was presented with was quite straightforward - the pursuer fell on her buttock and presented shortly thereafter with pain. Looking at the pain-distribution graphic in the article by Vaneldern and others, Dr Macleod accepts that referral of pain to the thigh can be from a number of structures. When he saw the pursuer the pain was particularly severe in her buttock, it was a very clear presentation and her major and ongoing complaint. The witness cannot understand how Professor Court-Brown can say that any sacroiliac joint pain is due to degenerative changes. He agrees that for disruption of the sacroiliac joint you need a high energy injury. He agrees that the history both pre- and post-accident is relevant in assessing the pursuer's condition.

[45] In answer to my question Dr Macleod states that he cannot advance a plausible mechanism for the sacroiliac joint pain. In re-examination he notes that the first post-accident GP note on 1 September 2009 recorded: "Buttock bruised, large bruise and has hard tender area in the centre." On 16 October 2009 the GP recorded: "sore at end of shift = particularly aroun r sacroiliac jt."

Discussion of the medical issue

[46] The cross-examination of Professor Court-Brown by pursuer's counsel was heated. The questioning proceeded on a misunderstanding, it seems to me: contrary to the cross-examiner's apparent premise, the Professor's assessment is essentially sympathetic to the pursuer and accepts the accident as the cause of her problems, assigning the otherwise - in the professor's view - inexplicable distribution, intensity and continuation to her symptoms to "personality factors", or, as he describes it in answer to my question to "psychogenic perpetuation".

[47] I think it is important that no pathology has been demonstrated on imaging apart from minor degenerative changes to the lumbar spine. The conclusion of the neurosurgical review at Aberdeen Royal Infirmary on 25 May 2011 was that the pursuer's pain was attributable to a musculoskeletal cause without nerve involvement. The pursuer does have some pre-history, albeit slight, of back pain. I am told by Professor Court-Brown that the history is, effectively, a risk factor for the symptomatology the pursuer has since developed; and this is not contradicted. Mr Macleod agrees to the extent that he says that prior symptoms increase susceptibility to symptoms following trauma.

[48] I confess that my own untutored reaction was that a sacroiliac origin for the pursuer's back and leg pain must be postulated on the basis of the pursuer's positive response to the two sacroiliac blocks. The journal articles since produced by the pursuer on recall of Dr Macleod have disabused me of the notion that this is an inevitable line of reasoning, given the reported scope for placebo effects and false positive results.

[49] The articles principally founded on by Dr Macleod are review articles, that is they are articles which review the results of other studies. It may be that very few other studies are accepted by the more rigorous reviewers as satisfying the consensus evidence guidelines. The studies reviewed report chronic "mechanical" low back pain attributable to the sacroiliac joint as being a significant but still relatively infrequent occurrence, as low as 16% on one report. The 2010 review article refers to trauma, without further description, as a "risk factor". The 2005 review article cites a finding that trauma, unspecified, was the cause in 44% of patients in that particular study: but the article also states that the mechanism of sacroiliac joint injury, if that is what is being proposed by the pursuer, "has previously been described as a combination of axial loading and abrupt rotation" rather than direct trauma. Although I suppose theoretically anything might happen in a falling-downstairs accident, I have actually received no testimony to the effect that this particular insult did or could have occurred to the pursuer. The pursuer complains of direct trauma evidenced at the time by bruising of her right buttock. Dr Macleod cannot describe, or offer a plausible mechanism for, the sacroiliac joint pathology which he deduces from the pursuer's response to his interventions. In the absence of a direct traumatic effect or alternatively in the absence of a plausible mechanism combined with statistical probability, or should I say in the absence of evidence of these things, there is some difficulty in accepting that the accident caused the pursuer to have a sacroiliac joint problem.

[50] This is particularly so given the post-accident history which includes the second accident. Dr Macleod describes the distribution pattern of the pursuer's symptoms as "typical" making the entirely reasonable assumption, on the information that was given to him, about the essentially unchanging course of the pursuer's condition following the 2009 accident. This is in accordance with the pursuer's evidence in Court. The fact is however that the pursuer did have a second accident in 2010; the fact is that at the last attendance on her GP before the second accident, only mid- to lower-lumbar pain and tenderness was recorded with "no sciatica"; and the fact is that, although the pursuer dismisses the second accident as unimportant, it was only after the second accident, in September 2010, 13 months after the first accident, that the pursuer is recorded as having complained of pain radiating to her thighs and even further into her lower limbs.

[51] At the time she told her GP that the second accident had "aggravated her injury". On referral to Raigmore Hospital on 23 March 2011, the GP described the presenting complaint as: "intractable back pain with neuropathic pain into right buttock and right leg since fall in September", which seems to me to imply that the culprit fall was in the immediately preceding September, that is September 2010. Thereafter the records tend to conflate the two accidents, the first in August 2009, the second in September 2010, making them into a single event in "September 2009". On 25 May 2011 the pursuer presented to Mr Hamdy Kemal, consultant neurosurgeon at Aberdeen Royal Infirmary, with a complaint of "severe lower back pain radiating along both lower limbs particularly along the right side". At the initial telephone consultation with the Chronic Pain Management Service on 17 January 2012 the pursuer reported a fall in "September 2009" and, since then, pain radiating "down the right side of her thigh, calf and sole of her right foot and toes". In evidence the pursuer states that she (still) feels her symptoms "going down to her foot". Before the second accident the pursuer had not visited her GP for four months. In the five months following the second accident the pursuer visited her GP four times complaining of back and leg symptoms. (For five weeks of that period the pursuer was away from Fort William, visiting her daughter in Australia.) It was only after the second accident that the pursuer took certified absences from work. It was only after the second accident that she applied for disability living allowance.

[52] Ultimately the supposed sciatic nerve injury, which is the only pathology identified in the pursuer's pleadings, turns out to be a red herring. The competing opinions now on offer are about the right sacroiliac joint and about the triggering or exacerbation of lumbar degenerative symptoms by the accidents.

[53] A practical difference between the competing opinions is that Professor Court-Brown believes, according to his evidence in Court, that the pursuer would ultimately have become symptomatic by the age of 65 and would have had the same bad back by the age of 75 at latest without the accident whereas Dr Macleod FRCA, without offering a different timescale for the onset or development of purely degenerative symptomatology, implies that, but for the accident, the pursuer would never have had a bad back. Mr Macleod FRCS appears to accept that the pursuer might well have developed a bad back but is not prepared to put a timescale on the emergence of symptoms. Professor Court-Brown suggests that the second accident has advanced the exhaustion of the effects of the first accident by two or three years.

[54] As far as the pain, suffering and loss of amenity experienced by the pursuer are concerned, there is practically nothing to choose between the competing diagnoses for the period up to age 73 or so. After the age of 73, as I understand it, Professor Court-Brown sees the effects of the first accident becoming exhausted or overtaken by the effects of degeneration exacerbated by the second accident whereas, as I understand it, Dr Macleod sees the effects of the first accident continuing. On the other hand, if Dr Macleod is correct as to the diagnosis, the pursuer's symptoms may well be relieved or reduced by the interventions at the disposal of the Chronic Pain Management Service. Even if the diagnosis is incorrect and the pursuer benefits from a placebo effect her subjective experience of pain relief will be no different. In other words, the doctor's diagnosis comes with a built-in palliative. Cooled radiofrequency offers the prospect of denervating the sacroiliac joint and suppressing the pursuer's symptoms for up to two years at a time, the intervention being repeatable again and again as and when the joint re-innervates. Therefore, although pursuer's counsel asks me to reject Professor Court-Brown's opinion, it is not obvious that the compensable injury is less if Professor Court-Brown is correct, since no one offers or suggests a treatment to relieve or reduce chronic lower back pain as diagnosed by the professor which is described as musculo-skeletal, mechanical or idiopathic.

[55] My conclusion on the evidence presented to me is that Professor Court-Brown's opinion is to be preferred: but whether the professor is correct or the doctor is correct is something that, taking a broad view of matters, really makes no difference to the damages that should be awarded. Because of the accident the pursuer has suffered and will suffer pain and inconvenience and restrictions on her activities. Her ability to work, insofar as she might have worked, has been affected.

Damages

[56] I value the solatium element of the pursuer's claim at £18,000, attributing one half to the past. Professor Court-Brown stated in the letter of 20 November 2012 to the defenders' agents covering his report that "there is no evidence that [the pursuer] is fabricating her symptoms". On the other hand the professor reported that the "apparent intensity of the pain may relate to [the pursuer's] underlying personality." There is a telling remark in Mr Kemal's report of 25 May 2011: "Neurological examination of her lower limbs was within normal but she seemed to be in agony during the examination." When the pursuer first attended Dr Macleod's pain clinic on 23 March 2012 "[s]he was extremely distressed"; and Dr Macleod thought that "she would benefit from having an assessment by a psychologist". The pursuer presents to me from the witness box as an individual who does make the most of her symptoms: she is tearful, she winces, she sighs audibly, alternately sitting and standing, putting a hand to the small of her back, rocking to and fro, putting her hands to her head, particularly when being challenged. She has also proved to be an unreliable historian in relation to her pre‑existing back symptoms, the effect of the second accident, the issue of reduced working hours and her domestic arrangements. Severe symptoms and minimal physical signs together mean that applying the damages guidelines, which tend to categorise in terms of the severity of the physical component, is very much a matter of judgment.

[57] The figure I propose is about mid-way between the respective figures proposed by the parties. The pursuer's figure for solatium is £30,000 with two-thirds attributable to the past and the defender's figure is £8,000 with three-quarters attributable to the past. The pursuer founds on the Judicial Studies Board, Guidelines for the Assessment of General Damages in Personal Injury Cases (Oxford, 2012) [JSB Guidelines], 35, Orthopaedic Injuries, (B) Back Injuries, (b) Moderate, (i) £19,850 to £27,700; Carberry v Lord Advocate, GWD 29 Sept 1995, 20-1588, £18,000 (updated £29,340); Stone v Commissioner of Police of the Metropolis, 16 Sept 1999, D Kemp and others (Kemp and Kemp), The Quantum of Damages in Personal Injury and Fatal Accident Claims, 4^th rev ed looseleaf with supplements, (London, 1982), release R.113, F5-011, £25,000 (updated, £36,500), and Tierney v Mavadia, 10 Jun 1998, F5-016, £14,500 (updated £22,330). The defender refers to the JSB Guidelines, (B) Back Injuries, (b) Moderate, (ii) £8,900 to £19,850, the lower end of the range, and relies on Logan v Logan and Another [2010] CSOH 123, £10,000 (updated, £11,083); and Lyons v Wm Morrison Supermarkets Plc [2010] CSOH 50, £5,000 (updated, £5,603).

Wage loss and loss of employability

[58] It is certainly not the case, as the pursuer reportedly told Mr William Macleod FRCS, that she had not worked since the accident. The pursuer's pleadings claim that she reduced her hours of work following the accident. She told her GP on 22 March 2011 that she used to work 44 hours a week and had she had reduced her hours to 20 hours a week. I reject her evidence about the reduction in hours. From October to April the Ben Nevis Inn was closed for four days a week and it was normal to work reduced hours. The pursuer accepted in cross examination that there was a substantial increase in the hours worked during her last sixteen weeks at work ending on 30 April 2011, 501.75 hours or an average of 31 hours a week, that is during the period when she reportedly told her GP about reduced hours of working, compared with the equivalent period in the previous year ending on 29 April 2010, 334.25 hours or an average of 21 hours a week. In re-examination it was taken from the pursuer that during the 22 week period leading up to the first accident, ending on Friday 21 August 2009 she worked 1,103.75 hours, an average of 50 hours a week, compared with 910.25 hours, an average of 41 hours a week, worked in the equivalent period in the following year ending on Friday 20 August 2010. She said that the reduction from the pre-accident to the post-accident period was due to her back condition which caused her mobility to suffer.

[59] I reject the pursuer's evidence about a reduction in hours because of her back condition. I accept the evidence of the defender, Thomas Hadfield, that there was a reduction for other reasons. The defender became the owner of the Ben Nevis Inn on 4 April 2008. He found that the pursuer was compiling the staff rota and having difficulty with it. She always put the rota up late. Whenever there was a gap she filled it by putting herself on for more hours. She was working upwards of 60 hours a week. There was an ongoing discussion about reducing the pursuer's hours as she approached retirement. The defender took over the rota and reduced the pursuer's days to four days a week, so as to reduce the pursuer's hours and to rota the staff equally. This happened shortly before the accident. The defender explained the reduction in hours from 2009 to 2010 by reference to the change in the rota.

[60] The pursuer's witness Manuel de Castro Silva, kitchen porter and handyman at the Ben Nevis Inn, confirmed that the rota had been taken over by the defender although he was not clear as to the date. Mr de Castro Silva gave some evidence about the pursuer struggling with her work. He knew she was in pain because of her expression and the sounds she made. As time went on the pursuer said that she "might need to do less hours". Pursuer's counsel did not found on this evidence in submissions.

[61] The pursuer was on the rota for leave for the two days, 24 and 25 August 2009, after the (first) accident. When she returned to work she worked her normal hours. The pursuer only had one day off work for sickness during the whole time she worked for the defender. She never asked for a reduction in hours because of her back. The pursuer told the defender sometime around October or November 2010 that she was struggling with her work. He gathered that she had previously mentioned it to others. The pursuer knew that she was going off long term sick but stayed on as a favour to the defender till Piotr, one of the two second chefs, who was off for a couple of months, got back. (The idea of a pre-planned ill health retirement struck me as a little odd in the circumstances of this case but neither counsel commented on the matter.) The defender explained the hours worked in the period February to April 2011 by reference to the fact that Piotr was off and the pursuer had done extra hours to help out. The pursuer intended 18 April 2011 to be her last day at work. She seems to have come back to work on 19 April 2011 as a favour to the defender. That was the pursuer's last day at work. The GP certified sickness absence for back pain for two weeks from 20 April and then for longer and longer periods continuously thereafter. When the pursuer left work she was aged 59 years and three months.

[62] The pursuer intended to retire from full-time employment "when she got her stamp", that is when she became eligible for an old age pension, at the age of 61 years and ten months. This is what she said in evidence. And this is what, according to the defender, he had understood from the pursuer when she worked for him, though he thought her qualifying age was 61 years and nine months. In submissions defender's counsel argues that the pursuer is not entitled to be compensated for wage loss for the reason that there is no evidence that the claim-accident prevented her from working. While there might well be an argument to this effect, I do not think it is an argument which is open to the defender given the terms of the defender's pleadings, the declaration made by defender's counsel about novus actus interveniens, and the terms of Professor Court-Brown's opinion which has been put in evidence by the defenders. It follows that the pursuer is entitled to compensation for loss of earnings for a period 30 months until 24 October 2013. For the purpose of calculating earnings lost I think it fair to take as a multiplicand the net income after deduction of tax and national insurance contributions shown in the pursuer's P60 for the year ended 5 April 2011. The figure for that twelve-month period is £15,072.55. I calculate the loss for the period of 30 months to hypothetical retirement to be £37,681 before deduction of sick pay. Sick pay in the 28 week period of certificated sick leave from 20 April 2011, payable at the rate of £163.20 a fortnight, amounted to £2,284.80 so that the wage loss net of sick pay is £35,396.88. I have not taken into account holiday pay of £185.16 paid on 30 September 2011.

[63] Pursuer's counsel proposes compensation for two years' future wage loss, calculated on the basis of the minimum wage of £6.19 an hour for 20 hours a week for 52 weeks a year, £6,437.60, total £12,875.20. The pursuer's evidence on the matter started shakily when she said that she would have looked for charity work after retirement if she had not had the accident. She then said, when the issue was focussed for her, that she would have had paid work for shorter hours. She would have "hoped" to work part time "for another couple of years anyway" after leaving full time employment. By "part time" she means sixteen to 20 hours a week.

[64] She does not know the availability of such work in Fort William. If fit she would be very confident of finding a job. She is confident, capable and well known. It could have been catering or running a guest house or working for John Fraser at the Café Beag in Glen Nevis on the permanent chef's days off. She could have worked as a general assistant at the Nevis Bakery, managing director Archie Paterson. That is the pursuer's evidence.

[65] Mr Paterson was brought to speak to his to-whom-it-may-concern letter of 26 October 2012 stating that if he had a job available he would employ the pursuer having known her for over 40 years "and with her reputation for been a excellent and trust worthy worker [sic]". In evidence Mr Paterson stated that he would possibly give the pursuer a job if there was one available. The pursuer would have to retrain to make cake mixes or pies. That would take three months. If he had known he would have had to come to court he would not have written the letter. If he needed to employ someone it would be full time.

[66] The defender is complimentary about the pursuer's work ethic and her qualities as a cook. She is well known as a cook in Fort William. He liked the pursuer as a person. She is a nice lady. She had difficulties with the work. She is not a "chef", in the sense of a "chef de cuisine", someone who can manage a kitchen and control kitchen staff. The defender stated that the pursuer would not have continued to work after she retired. He knew what the pursuer did in her spare time because her granddaughter played with his daughter. The pursuer was always involved in outside catering. After she left she borrowed cutlery on one occasion for a function.

[67] On the assumption, which I am willing to make, that the claim-accident left the pursuer, eventually, unfit to work, I think it would be reasonable to allow her something for loss of part time earnings after retirement in October 2013. I am not willing to assume that the pursuer would have worked every week of the year, particularly given the seasonal nature of the employment in which she is experienced, or that she would necessarily have worked 20 hours a week rather than sixteen. I think it would be reasonable to award £6,000 under this head, leaving out of account the possibility that cooled radiofrequency ablation of the right sacroiliac joint nerve supply will render the pursuer substantially asymptomatic and fit to work. I leave this out of account because the matter was not explored in cross‑examination. This award is for the period from the pursuer's intended retirement date and interest on the past element is included.

Services

Necessary services

[68] The pursuer claims in terms of the Administration of Justice Act 1982 s 8 for necessary services rendered to her by her daughter Linda Dignan in consequence of the injury to the pursuer's back. The pursuer says in evidence that her daughter visits almost every day: but mere visiting is not a "necessary service" for a claimant like the pursuer within the meaning of the statutory provision. Further, I am not prepared to make any award for the period before the date when the pursuer left work, Thursday 20 April 2011. Mrs Dignan thinks that the pursuer's life has changed out of all recognition since about "Christmas 2009". She seems at another passage to connect this with the worries the pursuer had about going to Australia, something that occurred at Christmas 2010. The weight of the acceptable evidence is that the pursuer's life did not change until about Christmas 2010, shortly after the second accident and more than a year after the claim-accident. It was towards the end of 2010 that the pursuer began to complain about radiation of the pain and difficulty with walking and to moot that she would go off work as long-term sick. In another passage Mrs Dignan said that she had given the pursuer help in the house "since she [the pursuer] stopped work". Following the change in the pursuer's life, Mrs Dignan reckons that she helps her mother with "heavier tasks" around the house and with driving, helping for about ten hours a week in total. A more realistic total referable to the injury, in my view, is six hours.

[69] The only specific "heavier task" mentioned in the pursuer's submissions is "bringing in coal": but in answer to my question Mrs Dignan says in evidence that "Ian" would get the coal if required, which would seem to be entirely reasonable if he is fit and sharing the benefit of the heating provided by the fire. Similarly, I cannot think that it is necessary for Mrs Dignan and her husband to help clearing out the fire. Since Ian is not living with the pursuer as her husband, but rather as a house-sharer, his services are not compensable. In evidence Mrs Dignan describes other tasks which she carries out, namely filling the wood shed, hoovering, cleaning high kitchen units, changing shower curtains and light bulbs, moving heavy furniture. Again the question occurs as to whether Ian is doing his fair share. In the week before she gave evidence Mrs Dignan says that she spent four or five hours helping her mother, hoovering, dusting, shopping and clearing the living room for a new carpet to be laid. The latter task does not sound routine. At an earlier point she says that she spends three to five hours a week helping her mother with chores. The pursuer manages with her own personal care. I think the lower end of the bracket, three hours, would be a fair allowance.

[70] "Since she stopped work" says Mrs Dignan of her mother, the pursuer, "her appointments have taken a great deal of time". The context is about the amount of time Mrs Dignan spends driving her mother. I can accept this for the period from 20 April 2011 until the pursuer was settled into the Chronic Pain Management Service programme, certainly until the point in time when she was awarded the mobility component of the disability living allowance. I assume that now the pursuer has retired she no longer requires to visit her GP for certification of unfitness to work. And, as Mrs Dignan says, the pursuer also now has a bus pass. There is a bus stop outside her house and the bus goes directly into town. The pursuer does not have a driving licence; and before the accident Mrs Dignan used to chauffeur the pursuer, though not to the same extent.

[71] Curiously no evidence has been offered about the pursuer's requirement for services during the remissions which followed her spinal, sciatic and sacroiliac anaesthetic blocks. Nonetheless, I have taken into account in a broad way the possible alleviation of the pursuer's symptoms by virtue of the interventions offered by the Chronic Pain Management Service, as referred to in the pursuer's written submissions. Doing the best I can with this material I assess that, on average, Mrs Dignan has spent and will on average spend, because of the pursuer's back injury, an additional three hours a week driving the pursuer and six hours in total providing domestic and driving services.

[72] The pursuer proposes a figure of £6.93 an hour for the cost of services, which is 75 per cent of the current aggregate commercial carer rate, effective since April 2010, given in R de Wilde QC, Facts and Figures 2012/2013 (Professional Negligence Bar Association, London, 2012), K1: "Care and attendance". I think £6.93 is too much. There is no evidence that Mrs Dignan's services have to be provided on Sunday, or Saturday or at night. It is not ungenerous, in my view, to allow £5.00 an hour, something over 75% of the statutory minimum rate of £6.19 an hour, amounting, for six hours a week, to £1,600 a year, rounded up to the nearest £100. For the past two years and nine months this amounts to £4,400. (The defender does not offer a view as to the appropriate hourly rate.) As to the future, because I accept Professor Court-Brown's analysis, the pursuer's requirement, attributable to the accident, for the domestic and driving services provided by Linda Dignan will last until the pursuer is aged 73 years. I therefore reject the modified whole-of-life multiplier suggested by counsel for the pursuer. Applying the appropriate multiplier, which I take to be 9.2, derived from the Ogden Tables, 7^th edn (London, 2011), Tables 12 and 14, discount rate of 2.5 per cent, the figure for future necessary services is £14,720.

Personal services

[73] The pursuer also presents a claim in terms of the Administration of Justice Act 1982 s 9 for personal services which she is unable by reason of her injury to render to her invalid, 88-year-old mother. The sums are not large, £3,000 for the past and £3,000 for the future but, I have to say, the evidence is equivocal. According to the pursuer, Mrs Dignan does a lot that the pursuer used to do for the pursuer's mother, Mrs Dignan's grandmother. According to Mrs Dignan, Mrs Dignan has not taken over personal care of her grandmother. Her grandmother calls (when she needs assistance) and Mrs Dignan collects the pursuer and takes the pursuer to her grandmother's house (presumably to give care). I shall allow £4,000 for this head for the past and for the future inclusive of interest for the past.

Necessary costs

[74] There is a claim for the cost of taxis which the pursuer says she had to hire to get to and from work. Mr Hadfield's evidence is that he used to give the pursuer transport. I prefer Mr Hadfield's evidence. On the other hand the pursuer must have incurred some extra travel costs once she became unfit for work. I agree with pursuer's counsel that a fair assessment would be £500. The pursuer also claims for osteopathy fees in the sum of £244 and I shall allow this.

Conclusion

[75] The relevant dates for the purpose of calculating interest on past losses are: date of the accident 23 August 2009; date of leaving work 20 April 2011; intended retirement date 24 October 2013; assumed date of decree 21 January 2014. The period from the date of the accident is four years and five months, from the midpoint of which is two years and two-and-a-half months (2.2 years). The period from the last day at work is two years and nine months, from the midpoint of which is one year and four-and-a-half months (1.4 years). In conclusion my decision is that the pursuer is entitled to the following damages:

Solatium Interest on past, 9,000 x 2.2 yrs x 8% pa	18,000 1,584
Past wage loss 20.04.2011 to 24.10.2013 Interest on past wage loss x 1.4 yrs x 8% pa	35,397 3,964
Wage loss from 25.10.2013	6,000
Past Administration of Justice Act 1982 s 8 services Interest on past s. 8 services x 1.4 yrs x 8% pa	4,400 493
Future Administration of Justice Act 1982 s 8 services	14,720
Administration of Justice Act 1982 s 9 services	4,000
Necessary costs	744
Total damages inclusive of interest	89,302

Interest is payable on the whole amount at the rate of 8% a year from the date of decree until payment.

[76] It occurs to me that there may be a question of deduction of statutory benefits and I shall put the case out by order to be addressed on this matter before pronouncing decree. Depending on the date of the hearing the interest figures may have to be adjusted. I propose that questions of expenses including certification of expert witnesses should be dealt with at that hearing.