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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKenna v Greater Glasgow Health Board [1999] ScotCS 279 (24 November 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/279.html Cite as: [1999] ScotCS 279

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In this action the pursuer seeks damages from the defenders, arising out of the termination of her employment with them in 1993 as a clinical nurse, based on an allegation that that termination was due to the state of her back induced or materially contributed to by her working conditions with the defenders, at the Woodside Clinic, Glasgow.

I heard a proof over six days. The pursuer gave evidence on commission being too unfit to attend court. I appointed myself commissioner and attended upon her at Stobhill General Hospital. She was supported by her husband and two daughters, a friend Mrs McCreadie, two general practitioners who had treated her, Doctors Gaw and Mackenzie, Dr Slater an anaesthetist, an expert in the nursing lifting techniques, Miss Ann Martin, Mrs McLeod, a former employee of the defenders, the general surgeon who is still treating her, Mr Dalling, a clinical psychologist who saw the pursuer on a number of occasions Ms Gray Taylor, an expert in care and needs in respect of disablement, Miss Alison Beattie, and finally Professor Ian Bone a consultant neurologist who was consulted as an expert in the case but has not treated the pursuer. There was also a witness, Mr Marshall with regard to loss of pension rights.

For the defenders, evidence was led from a psychiatrist, Dr Turner and an orthopaedic surgeon, Mr Peter Scott. Evidence as to the merits on behalf of the defenders came from Mrs Elizabeth Sharp who had been the pursuer's nursing manager at the critical time at the clinic and Mr Douglas Colham who was a pay records manager with the defenders.

The case raises a number of issues of credibility not least as to that of the pursuer with which I shall deal in due course. In the meantime I hold proved as a narrative essentially of undisputed matters, leaving out of account for the time being the controversial ones, the following facts in relation to the pursuer's employment and medical history.

Although she spoke little of it herself for understandable reasons, the pursuer had a horrendous upbringing, being coloured and illegitimate and was placed in an orphanage at a very early age where she was appalling treated physically by the nuns that ran it. The institution in question has recently been the subject of much media attention in that regard, namely Nazareth House, Kilmarnock. In her teens she was sexually abused by an employer but managed to qualify as a nurse and after sundry employment gained such at the Woodside Clinic in 1972. She remained employed there as a clinical nurse until the termination of employment in 1993, the circumstances surrounding which being the basis for this action. She has not worked since and her health has rapidly gone down hill to the extent now that she is a complete housebound invalid spending most of the time that she is at home in bed. Over the last few years however she has spent more time in hospital than at home and was currently at the time of the proof still in Stobhill under the general care of Mr Dalling. The principle reasons for her being there are acute back pain which is being treated by opiates and chronic bowel problems which are of long-standing but which are exaggerated or exacerbated by the medication which she takes. That is considerable since she is also suffering from a depressive illness and she is therefore on a combination of painkilling ante-depressant and steroid drugs. Her bowel problems require constant enemas whether at home or in hospital and indeed require her frequently to be admitted to hospital to have them regulated.

The pursuer's back problems were first identified according to hospital records in 1975. Putting aside the surrounding circumstances they culminated in a decision being taken in 1981 to perform a laminectomy which was done by a Mr Stoddart who did not give evidence. Thereafter the records reveal that throughout the 1980s although the operation was a success there was recurrent intermittent back pain associated with abdominal pain which was subsequently traced to the ribs by Dr Slater who has treated her in a pain clinic within Stobhill Hospital. The back problems were sufficiently serious in 1989 to require her to be referred to an orthopaedic surgeon, Mr Ramaneski who determined not to carry out any further operation and prescribed certain treatment. The history is such however that the back has continued to deteriorate ever since in terms of pain symptoms. Although in her pleadings the pursuer dated the exercise as in 1992, in fact in 1988 the pursuer was re-graded as to her status as a nurse. In or about 1992, a decision was made by the health authority to reduce the number of clinics being conducted by consultants at the Woodside Clinic which had up to that time been the sole occupation of the pursuer, as a nurse. Her employers therefore decided that she should work in the treatment room at the centre where she had not previously been employed, being full-time on the clinics and also if necessary, perform external duties as a district nurse, which takes place usually during the day attending upon housebound patients or by reference to the tuck-in service which was usually performed by auxiliaries visiting patients in their houses to put them to bed when they were not capable of doing that themselves. One of the major controversies in this case is the extent to which the pursuer was required to carry out these latter tasks and the effect upon her, being related to the method of lifting and moving patients in awkward positions. For the purposes of this narrative, it has to be recorded that during 1992 and into 1993 which was the critical period, the pursuer was off work on many occasions albeit some of them for short periods, the reasons for which are to be found in numbers 11(1) and 11(2) of process. Those certificates, much of which were self-certified reveal a variety of problems but no reference appears in them to back problems until the early part of 1993. I shall return to this issue when assessing credibility.

Parties were agreed that in the Spring of 1992, Mrs Sharp referred the pursuer to the occupational health authority within the Health Board system after she had complained of back pain. Unfortunately, while being examined in that context, the pursuer sustained some sort of injury to her leg which resulted in her making a claim against the Health Board. Quite separately Mrs Sharp never received any information from the occupational health assessment. She maintained that position because the pursuer had not given her consent to the assessment being promulgated but she did not pursue the matter very heavily because by then the pursuer had made a claim in respect of the injury to which I have referred and the matter was being dealt with by Health Board personnel. The pursuer therefore stayed at work, it again being a matter of dispute with which I will deal as to the extent to which she did external duties. However, what is undisputed, she attended her doctor in the Spring of 1993 with regard to her ability to work and he determined that she should be retired on medical grounds. His letter of 28 May indicates the reasons from which it can be seen it was not only attributable to back problems. The pursuer's employment was thus terminated. The resultant medical history I have already referred to, and it makes a sorry and tragic picture. Her husband whom she married in October 1992 is required to more or less everything for her including extremely personal matters with regard to natural functions and personal hygiene. She is now, as I have indicated, housebound and has very little by way of occupation. This has contributed to her depressive problems.

However, those problems also go back a long way and have led at various times to fits of depression. During one of these, for whatever reason, in 1992 the pursuer felt obliged to complain to the chief executive of the defenders, both as to the way she was being treated in her employment and on allegations of racialism. This was primarily directed at Mrs Sharp who was her immediate superior. Again this is a controversial matter but in due course, in the Spring of 1992 the pursuer wrote a letter withdrawing the complaints, but its terms are somewhat indicative of mental problems. I shall return to this matter.

The pursuer's case on record was that, while there were longstanding back problems, they were controllable and indeed, were under control until such time as the defenders changed her working routine by requiring her to carry out these additional or substitutional external duties which involved lifting and manoeuvring awkward and heavy patients, sometimes on her own or with assistance. She maintained on record and in evidence that she had to do this many times and that the flare up in her back which occurred during 1992 and into 1993 was entirely attributable to this. The two cases on record are respectively one of general system against the defenders and a particular fault against Mrs Sharp, but they duplicate each other since Mrs Sharp was effectively the executive acting on behalf of the defenders in implementing the decision that reduced the number of consultants' clinics and thus released the pursuer for other duties. There was however also an esto case to the effect that even if the defenders legitimately required her to perform these external duties, she had received no training in relation to the lifting and moving of patients. Paraphrasing the averments and counsel's submissions on the main issues, the essential ingredients of the pursuer's case were that, firstly, there was an extensive increase in her workload physically particularly in relation to the lifting and moving of patients, which she had not previously done as a clinical nurse, both in the treatment room as far as bending is concerned but also more importantly when out on external duties. According to the pursuer she had frequently protested to Mrs Sharp about the risk to her back which was in any event getting worse. Mrs Sharp had ignored these protests and told her simply "to get on with it". Thus the pursuer's case is that the pursuer was exposed to an unnecessary risk to the knowledge of the defenders because she had brought her back problems to their attention. That risk was not addressed by any form of training or indeed alleviation by removing her from these duties. Her back condition materially deteriorated because of this state of affairs and that led to the termination of her employment. It was maintained that but for the material contribution made to her back condition by the working conditions, she would have worked until retirement age of 60.

The defenders' position on record and in submission was totally different. Re-grading was recognised, diminution in the number of clinics being carried out by consultants was recognised and a change in working practices involving the pursuer being required to do the district nurse duties and tuck-in programme was also recognised. However the major dispute was the extent to which those activities actually took place. The defenders' position was that the pursuer was required to do very little in the way of external district nursing and equally as far as the tuck-in process is concerned, it was a very rare event. Furthermore, there was an acute credibility issue as between the pursuer and Mrs Sharp, who maintained in evidence the very limited extent to which she required the pursuer to carry out any external duties. While it may have happened on a few occasions she maintained that it was only on one occasion when she did so require that the pursuer reacted by referring to the state of her back. According to Mrs Sharp, she immediately accepted that position, referred the pursuer to occupational health and did never again during the remaining six or so months of her employment required her to do any external duties. This dispute goes to the centre of the case and requires to be resolved. If Mrs Sharp's position is acceptable, not only is the basis of the pursuer's case destroyed as regards the material change in working conditions and practice, but also the pursuer's requirement to bring home to the defenders the state of knowledge as to the state of the pursuer's back bearing upon her working conditions, is not made out. If that state of affairs prevails, the issue of training does not arise but it should be recorded that at this stage since a further issue of credibility arises, the pursuer maintained that she received no training and indeed, that she had requested and been denied such as how to lift and move patients. The defenders, through Mrs Sharp and the nurse who conducted the training sessions, Mrs McLeod maintained that the pursuer would have and in fact probably did once attend the course, albeit there was some question as to whether she attended the second day, the courses being for two days.

I will have to assess the respective credibility of the pursuer and Mrs Sharp, which is the central issue in this case, but before doing so, I shall deal briefly in summary terms with the medical evidence.

The evidence of Mr Dalling and Dr Slater was largely related to the clinical problems that the pursuer has been experiencing over the last few years. Neither were involved in the case as treating doctors at the relevant time i.e. 1992/1993 and while their assessment of the pursuer's current problems is important, it is less so in relation to the issues I have to resolve than that of Mr Scott and Professor Bone augmented by the psychiatric evidence from Dr Turner and the psychological evidence from Miss Taylor, albeit the evidence of both the latter are mostly concerned with damages.

The position of Mr Dalling was that he is a general surgeon now in charge of the pursuer's case, treating a woman with severe problems both mentally and physically and probably inter-connected. But for the bowel problem, she would probably not be in hospital. But for the pain problem she probably would not have such serious bowel problems and the two are obviously connected by reason of the drugs she is taking. The long-term prognosis according to him was very poor.

Dr Slater very skilfully was able to connect the multitude of references in the hospital records to abdominal pain, in fact to a rib/spinal pressure connection problem with regard to the back which was producing pain which was radiating into the abdomen. That problem was in fact in his opinion related to the bony structure rather than any abdominal problem. It is interesting that at one stage pancreitis was considered to be a possible diagnosis, which is primarily alcohol related. The pursuer is tee-total and thus the ultimate resolution of the problems of the pain by Dr Slater was very illuminating. However, he was equally pessimistic as to the future, the only treatment available being analgesics of a very high density even if morphine is involved.

The fact is however that the evidence neither of these doctors advances the pursuer's case on the merits.

The evidence of Mr Scott, who is a very eminent orthopaedic surgeon was positive and to the point. He recognised the history both mentally and physically, but his physical examination of the pursuer revealed a number of "inappropriate responses" which plainly revealed that for one reason or another, the pursuer's position in relation to her pain problems was either being exaggerated or invented. His reports are highly significant in this respect. However he did recognise that the pursuer has and has had for some time, genuine pain problems and these have been augmented by her psychological problems. The most important part of his evidence was that he took the view that the medical state of this unfortunate lady was such that she would never have achieved a working lifetime to retirement, even if her back had remained in the same clinical state it was exhibiting through the 1980s, namely a gradual deterioration through degenerative changes. In his view there was no orthopaedic solution and the likelihood was that she would have had to retire at about the same time she did whatever had happened to her according to her employment history.

Professor Bone was presented with a history from the pursuer mostly since he only had limited access to the records, to the effect that she had had no real problems until the disc issue in 1981, that she had been in a stable condition as far as her back was concerned thereafter until she had been subjected to this considerable change in her working practices in the early 1990s and at least after 1992 which coincided and therefor triggered the deterioration in her back which led to her retirement. Obviously the professor took the position that where it was asserted that there was a sudden dramatic change in working practices which involved extensive strain on the back, as stated to him by the pursuer to the extent of two or three times a week on a regular basis involving both district nursing external duties and tuck-down, the connection between that state of affairs and the deteriorating back was obvious. Thus he was able to conclude that, although he could find no neurological deficit in the pursuer's physiological makeup, there must be, on that hypothesis, an inevitable connection between her working conditions and the termination of her employment.

I hope I have summarised the two essential doctors' positions reasonably fairly before I turn to deal with the essential issue of credibility, which goes to the core of all the issues I have identified. Before ultimately resolving that question, however, there are a number of further questions.

Counsel for the pursuer opened her submissions by turning to her esto case which is based on the notion that it was legitimate for the defenders generally, but obviously through Mrs Sharp, to send her out on what I would call loosely external duties which can be described as district nursing and tuck-down, but, did so without training her in regard to lifting techniques. The reason, I suspect, that counsel headed for this position was because she was facing up to the obvious formidable problems that the pursuer had created in certain aspects of her credibility in the evidence she gave to me. By taking this line, counsel submitted that it did not require to be established that the defenders knew of the back problem when requiring the pursuer to do district nursing and tuck-down duties. It was sufficient that they asked her to undertake those tasks. Lifting was involved. There was lack of training and that directly caused the injury. In this respect apart from the pursuer's evidence, counsel relied upon the evidence of the pursuer's daughters that her problems had increased while at work in 1992/1993, but more specifically submitted that the evidence put forward by the defenders in this respect i.e. training namely that of Mrs McLeod and Mrs Sharp was not acceptable or sufficient to establish that the pursuer had received any training, contrary to her own evidence, which contained an unequivocal assertion that she had received absolutely no training.

In contrast, counsel for the defenders submitted that Mrs Sharp's general evidence to the effect that training had been initiated from 1988 onwards with regard to persons required to do lifting and that of Mrs McLeod in particular that she had carried out the relevant courses and remembered the pursuer attending one of them at least for the first day particularly because she had to rebuke her for coming back late. Quite apart therefore from the pursuer's credibility or lack of it, counsel submitted that it had been established by uncontroverted evidence that training had been at least offered to the pursuer, though there was some question to the effect that she said it was not necessary as she did not do district nursing duties. Be that as it may, Mrs McLeod could not remember whether it was 1991 or 1992 but maintained that the pursuer attended a course which, in any event, pre-dated the period which is relevant to this case namely 1992/1993.

Irrespective of what views I take of the pursuer's overall credibility I see no reason to doubt the evidence of either Mrs Sharp or Mrs McLeod in this respect, particularly the latter when she has a recollection which she was able to recall for a particular reason and also because it was established that there was no collusion between the two of them prior to giving evidence at the proof on this matter. Contrary therefore to the pursuer's own assertion that she received no training, I am satisfied that it was at least offered to her and that is sufficient to meet the esto case on that basis. It therefore fails.

In opening his submissions, counsel for the defenders founded strongly on the issue of causation to the effect that unless I was satisfied that there was a work related injury causing termination to the employment, the whole case failed and I turn now to consider that issue as a logical way to proceed.

On the issue of causation, counsel for the pursuer relied obviously on the pursuer's own evidence about the deterioration in her back over the relevant period, and supporting evidence of the daughters and particularly that of Dr Gaw who was the general practitioner at the time. She also relied on the opinion of Professor Bone in what was generally to the effect that the major back problem was triggered by the change in the work pattern as he saw the whole picture.

Counsel for the defender countered this upon the basis that in so far as the pursuer relied on Dr Gaw, he was an unsatisfactory witness given his lack of recollection and more importantly the absence of clinical notes which had been lost. There was a Commission executed to try and find them without success. He founded strongly on the evidence of Mrs Sharp which was to the effect in this respect that the pursuer had never complained to her about her back problems, nor resisted any attempt to be put onto district nursing or tuck-down duties save on one occasion in June 1992 when according to Mrs Sharp, she immediately accepted the position, submitted the pursuer to an occupational health examination and did not send her out on external duties again. Professor Bone, it was submitted, could not be relied upon in this case for two reasons. Firstly, he was a neurologist and once it was established as it was that there was no neurological deficit which was the case, his discipline was exhausted. More importantly, however, his whole opinion was based on what the pursuer told him which it was submitted was grossly misleading, in as much as it made no reference to the deteriorating albeit gradually situation in the 1980s, culminating in the reference to Mr Ramaneski in 1989. Counsel, in cross-examination, put a number of entries in the hospital records during the 1980s to Professor Bone, who plainly admitted that he had not seen them and that this disclosed that there had not been a period of stability in the 1980s in the pursuer's back. While he did not withdraw his opinion, he certainly modified it once this information was placed in front of him. Counsel was critical of him for not having made a deeper examination of the notes but, in any event, he submitted that in his opinion fell to be discounted. The position, however, of Mr Scott he submitted was entirely different. He was the only orthopaedic surgeon who gave evidence and the pattern he gave in his reports was absolutely clear namely, a gradual and marked deterioration culminating in termination of employment but all through natural progression. There was additional functional overlay which may have been arising from the depressive illness which coloured the position. His evidence, it was submitted, was the most relevant, and totally uncontradicted.

I consider this matter of causation can be resolved upon the medical evidence alone, without the need to consider the psychological evidence of Ms Gray Taylor and Dr Turner.

I am quite unable to accept the views of Professor Bone for the reasons submitted by counsel, principally because he relied upon a history which was not established in fact. Whether the pursuer consciously misled him or not is immaterial,. The basis upon which he proceeded namely, a period of stability after the disc operation in 1981 followed by a rapid deterioration coinciding precisely with a change in the working pattern, was simply not made out by the real evidence, particularly as supported by the hospital notes. On the other hand, the position of Mr Scott was entirely consistent with the hospital notes and relevant to his opinion that what had occurred was an undoubted deterioration of the back undoubtedly causing genuine pain, but not, in his view, causally related to the workplace. That view entirely accords with my assessment of the medical history as revealed in the notes and I accept it without equivocation. In my opinion, therefore, the pursuer has not established that any back condition existing at the time she left employment, was work related even to a material extent by way of contribution. This case therefore fails as a matter of causation.

Assuming I am wrong about that, I have now to turn to deal with the main case made against both the defenders and Mrs Sharp, which is essentially duplicated, namely that they knowingly put the pursuer's back at risk by sending her out on a regular basis to external work involving lifting, and thus aggravated in the causal sense the back condition to the point of termination of employment.

The pursuer's position in evidence was that she was regularly so sent out. She asserted that position on the basis of two or three times a week on a weekly basis during 1992 and into 1993 by Mrs Sharp, to whom she protested as to the state of her back and its consequences but, who in turn simply told her "to get on with it" and refused to accept any remonstration. She categorically denied that it was only on one occasion that she protested and had not been sent out again namely the incident in June to which I have already referred. The case against Mrs Sharp it was submitted was bound to succeed because of her state of knowledge such as was being communicated to her regularly by the pursuer as to the state of her back.

Mrs Sharp in evidence contradicted the pursuer's assertion as to the number of times she was sent out on external duties and certainly it was not supported by the pay sheets. She maintained firmly that the position was as I have stated, namely that the first time the pursuer, when asked to go on external duty, complained about her back. The position was immediately accepted and she was not asked to do it again.

I have no hesitation in accepting the evidence of Mrs Sharp in this respect. She gave evidence in a careful measured way and did not seem to me to be the uncaring and unsympathetic person that the pursuer made her out to be. On the other hand, the pursuer was plainly exaggerating if not worse as to the extent to which she was required to do external duties and I do not believe her for the following reasons when she asserted that she continually complained to Mrs Sharp about her back every time she was asked to do those duties or even in the treatment room.

There are a number of credibility oddities about the pursuer's evidence. I find the whole incident involving the pursuer's apparent complaint in 1992 about Mrs Sharp to which I have previously referred and the way it was resolved, odd. I certainly accept the evidence of Mrs Sharp that she did not pressure the pursuer to write the letter of withdrawal as the pursuer asserted and I do not accept the pursuer's evidence in that respect, which is fatal to her general credibility. I do not understand furthermore, why there is no reference in the medical records in 1981 to the apparent traumatic incident involving an epileptic which, it was said by the pursuer, triggered the back injury which in turn led to the disc operation. Hospital notes and the GP notes are totally silent in this respect which is highly illuminating since, if the pursuer had gone to her doctor following a traumatic incident at work injuring her back, some reference would be bound to be made to it in the GP notes. Why the pursuer should invent this story? I have no idea since it did not advance her case. However I hold upon the evidence that she did so invent it. I also find it peculiar that if there were such problems with the back as the pursuer alleged, known to Mrs Sharp, the pursuer did not allow or cause to be referred back to her, results of the occupational health assessment unless, of course, it did not support the pursuer's basic condition as to her back. Counsel sought to make something of this as regards the credibility of Mrs Sharp but, I do not consider it damages it at all. In fact in one way, it enhances it, since at the same time she was the subject of a complaint by the pursuer which resulted in the matter being referred to personnel. In my view it would be a very dangerous line for a senior manager to take if subject to a complaint of such gravity to suppress the main question and a fortiori to demand a retraction of the complaint. I also find it illuminating that in 11(1) and 11(2) which are the certificates of periods of work firstly in summary form and then the actual certificates themselves in 1992-1993, make no reference to the back until well into 1993. The pursuer's explanation for this was that everybody knew about her back and in any event, she wanted to find other reasons than that for being off work. I do not find this explanation convincing. If again she was complaining about her back all the time, it is surprising that there is not a single mention of it throughout any of the entries relating to 1992. It also cannot be left out of the equation that the pursuer, whether deliberately or for some other reason, did not give Professor Bone a full account of her back history in the 1980s and it is extraordinary that she did not mention to him that she had been referred again to an orthopaedic surgeon namely Mr Ramanenski in 1989.

All these factors force me to take a very doubtful view of the pursuer's credibility and certainly in relation to any matter in which she is in conflict with the evidence of Mrs Sharp. For these reasons I have no hesitation in preferring the latter. Equally I am seriously concerned that both Dr Turner and Ms Gray Taylor were legitimately briefed.

In these circumstances the final and main case against both the defenders and Mrs Sharp fails in my opinion for want of credibility in the pursuer's evidence. She has not established that she was sent out on a regular basis to do lifting work against the background of complaints and protests from her about the state of her back. I find it proved that until the June incident in 1992, Mrs Sharp and thus the defenders were not aware that the pursuer had any more than a long back history and certainly not aware that she was risking it in the work environment. Mrs Sharp's immediate reaction upon being so informed for the first time in June confirms this position, since as I hold proved, she did not send the pursuer out on external duties again, albeit that she was required to work in the treatment room which did not involve lifting.

For all these reasons the defenders will be assoilzied.

There was a case of contributory negligence on record but the defenders did not insist in it and I do not therefore require to deal with it. I do, however, require to deal with damages.

Counsel for the pursuer submitted her case in this respect on three separate basis. First, that the pursuer would have worked to retirement age and that her major disabilities are all work related i.e. in the back. She is therefore entitled to wage loss up to her retirement date when she would have been aged 60 and thus both past and future feature in this claim. She is entitled to be reimbursed for the cost of certain equipment spoken to by Mrs Beattie both past and future together with incidental claims relating to mobility are section 8 services rendered to her by her husband in terms of the Administration of Justice Act, the loss of pension in respect of which evidence was given by a Mr Marshall and of the costs of moving if that was thought to be appropriate because she requires to live in a smaller house on the ground floor. At the other end of the scale, she submitted in the alternative that it was at least feasible to approach the matter upon the basis that all as it happened had been an acceleration of an inevitable state of affairs which would, on the evidence she submitted, have arisen about February 1995 when the pursuer would have on this estimate lost her job. That entitles loss of earnings to that date but no future care, certain costs but none for the future, a very small claim for loss of pension and a much smaller claim for services. The third basis in which she invited me to consider the matter is the halfway house in the sense that although on this hypothesis the pursuer's termination of employment was for a work related injury that would have occurred in any event but some time beyond 1995.

Had it been required to consider this matter, I would have taken the view that the pursuer's general state of health, quite apart from her back, and particularly her bowel problems and her depressive illness problem, to say nothing of the arthritis which has now developed in her hands, would be such to have caused the pursuer to give up employment well before retirement age even if the back was making a contribution to that position. Given her work record during 1992/1993 and given the view I take of the pursuer's credibility, I do not consider it unreasonable to regard the notional cut off point at 1995. On that basis, the figures put forward by Mrs Paton in her third schedule to which I earlier made reference which bring out a total of slightly over £25,000 if the pension claim comes out for reasons with which I shall deal, would have been the view I would have taken overall of the case. For completeness the heads would have been as follows:

I should record that with regard to solatium, the pursuer referred to McFall v West Dumbartonshire Council 1998 S.C.L.R. 1009, Dickson v Lothian Health Board 1994 S.L.T. 525. Since the solatium I would have awarded reflects that submitted as reasonable by counsel for the defender, I should merely record that he referred to Burke v The Royal Edinburgh Infirmary Hospital Trust 1998 R.L.R. Q. 401.

That is sufficient to dispose of the case but there are two other incidental matters upon which I require to comment.

The first relates to what relevance to the pension claim is the fact that the pursuer received a lump sum on actual retirement which reflected to some extent, an incapacity pension. The case of Longden v British Coal Corporation 1998 1 A.E.R. 289 produces a formula whereby a certain part of that lump sum has to be taken into account in calculating loss of pension rights. That case was followed by Lord Cameron of Lochbroom in Grassie v Ross Andrew McLaren unreported 26 March 1999 and I would have taken the same approach. Without making the actual calculation, given the approach I have taken to damages, the part of the lump sum of £10,000 referable to the incapacity portion would have exceeded any minimal pension claim that would have arisen from the two year acceleration as far as retirement is concerned. Thus, I would not have made any pension award.

The other matter relates to the discount rate to be applied to achieve a multiplier in respect of future loss of earnings and care were such to have been awarded under reference to the well known Ogden tables. I would have accepted, as did the defenders that tables 11-20 would have applied. However, with regard to the discount factor, evidence was led from the actuary, Mr Marshall on behalf of the pursuer to the effect that the 3% which was settled by the House of Lords in Wells v Wells 1998 3 A.E.R. 481 should be reduced to a lesser figure as set out in Mr Marshall's second report (36/3) to reflect a change in economic circumstances since Wells was decided.

The background to the matter is that by statute the Lord Chancellor of England and the Secretary of State in Scotland are now empowered to set a rate but neither has yet done so. In Wells the House of Lords decided for the time being the 3% should be the appropriate rate and in various reasonings effectively decreed that such should only be altered if there was a significant change in economic circumstances. (See Lord Lloyd at p. 495, Lord Steyn at 506, Lord Hope at 510, Lord Clyde at 514 and Lord Hutton at 521).

Counsel for the defenders submitted that there was no basis upon the view of their Lordships for actuaries now to give evidence so close in time to the decision in that case particularly where the intention appeared to be to try to avoid such evidence in the future without there being much clear evidence of the significant "change in economic circumstances".

Having read the case I agree with the counsel for the defenders' proposition and if accordingly I had been required to apply the tables for any calculations in the damages claim, I would have used a discount rate of 3%, for the reasons given by their collective Lordships.

For the reasons given, I will sustain the second and third pleas for the defenders, who will be assoilzied from the conclusions of the summons.