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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McMurray (AP) v Safeway Stores Plc [2000] ScotCS 182 (4 July 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/182.html Cite as: [2000] ScotCS 182 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LADY PATON in the cause PATRICIA McMURRAY (AP) Pursuer; against SAFEWAY STORES PLC Defenders:
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Pursuer: Maguire, Advocate; Digby Brown
Defenders: Hanretty, Advocate; Brechin Tindal Oatts
4 July 2000
[1] This is an action for reparation in respect of a back injury suffered by the pursuer when she slipped in a Safeway store. Liability is admitted. The sole issues are causation and quantum.
Motion for examination of pursuer by Physical Evaluation Systems Limited
At a motion roll hearing, the defenders moved that the pursuer be ordained to -
"attend for examination and testing by Physical Evaluation Systems Limited, said examination and testing to be supervised by Dr. George Addis in respect that to date the pursuer has, despite requests by the defenders, refused to make herself available for such examination."
The motion was opposed.
[2] On record, the pursuer avers that on 12 November 1993, when she was a customer in Safeway, she slipped on liquid on the floor. She suffered injury to her back. She continues to suffer pain. It is averred that she underwent treatment including an MRI scan, surgical treatment, physiotherapy, electric current treatment, ultrasound treatment, medication, bed rest and traction. Further details are given concerning her continuing pain and disability.
[3] The defenders for their part aver that the pursuer had a pre-existing back condition; that she sustained merely a soft tissue injury in the region of her right buttock, from which she ought to have made a full recovery within a few months; that on 29 June 1994 she required an operation because of a prolapsed disc of unknown aetiology; that the pursuer exhibited inappropriate responses and presented with illness behaviour; and that she had been diagnosed as having a progressive degenerative disease of the spine.
[4] Counsel for the defenders submitted that, in cases such as this, the parties and the court would be assisted by objective analytical material relating to the pursuer's symptoms and complaints. The defenders sought to have the pursuer examined and tested by a limited company called Physical Evaluation Systems Ltd. (PES). To illustrate the work carried out by PES, the defenders produced a brochure number 7/2 of process, information leaflets number 7/3 of process, an evaluation report in respect of another individual, with the individual's name and other personal details deleted, dated 12 October 1999 (number 7/4 of process), and an explanatory letter (number 7/5 of process) which has attached to it a letter of endorsement from Dr. Richard L. Marcus, MBChB, FFOM, MRCGP, DCH, DIH, Consultant Occupational Physician, Manchester.
[5] The brochure number 7/2 of process contains photographs showing a variety of machines being applied to an individual, together with some text under various headings such as "What is FCE testing"; "Compelling results"; "Our centre locations"; and "Emphasis on Quality". The brochure gives a freefone number, and explains that:
"FCE [Functional Capacity Evaluation] testing has evolved from conceptual, manual methods used by physiotherapists to the use of strength and dexterity measuring devices coupled directly from the participant into a computer with sophisticated software programs that are objective, rapid and based on scientific testing techniques supported by published medical research.
Information collected during FCE testing is invaluable to employers, insurance providers and solicitors, whether acting for defendant or plaintiff. The test results provide a completely objective snapshot of an individual's current abilities and impairments and provide a whole body percentage impairment factor to assist in claims negotiations. ...
Our clinical staff - all of whom are Senior Chartered Physiotherapists with a minimum of 4 years post graduate experience - are trained and certified to carry out FCE testing at our corporate centre in Reading and all reports are quality controlled by our Clinical Services Manager before being distributed to the referral source. ...
The company, through its international links in the United States and elsewhere in Europe, is constantly looking at additional equipment and computer software developments. In this way we can ensure that meaningful innovations in FCE testing are introduced into the UK as soon as they occur".
[6] The information leaflets numbers 7/3A and 7/3B of process are headed "Information about your assessment" and "Information about your evaluation". They contain text, with headings such as "People you will meet", and "Will you feel pain?" The text in number 7/3A of process includes the following:
"When you arrive at one of our centres you will meet a senior chartered physiotherapist who will guide you through the testing procedures. He or she will be on hand at all times to ensure that you do not attempt anything which may cause exacerbation of your symptoms.
If the insurance company or solicitor dealing with your case has requested it, you may also be seen by one of our specialist doctors, who will review your injury and provide an additional specialist medical opinion. ...
You can expect to be with us for approximately 60-90 minutes.
When you first arrive you will be offered coffee or tea and the physiotherapist will discuss with you your current lifestyle, the background to your injury and your current pain levels.
It is important for us to have this information so that we can ensure that the physical testing part of your FCA is safe and will not cause you any re-injury.
It may be quite normal for you to feel some discomfort when you perform activity. Since you are the only one who can identify pain, we will frequently ask you if your pain level has changed by using a recognised pain rating scale.
We do not expect you to perform any activities that increase your pain to a level which you feel is unsafe or undesirable to you. We will not ask you to continue any test which is increasing your pain to a level which you say is unacceptable.
It is very important, however, that you give your best efforts during the testing."
Information leaflet number 7/3B is in similar terms, although the member of staff is described as a "chartered physiotherapist" (not a "senior chartered physiotherapist") and the participant is advised:
"You can expect to be with us for approximately three hours, because we do not wish to put you under any undue stress and because it is important to do things at your own pace. Please bring something that will enable you to feel comfortable during the evaluation - some track suit bottoms, trainers or plimsolls etc. ... Some pain may be normal when you perform activity. Since you are the only one that feels your pain, we will frequently ask you if your pain level has changed by using a recognised pain rating scale. We do not expect you to perform activities that increase your pain to a level which you feel is unsafe or undesirable to you. We will not ask you to continue any test which is increasing your pain to a level which you say is unacceptable. It is very important, however, that you give your best efforts during the testing. ..."
The individual's report dated 12 October 1999 contains text under the following headings: Patient's details; Diagnosis/Condition presented pre-testing; Subjective case history from patient; Current reported symptoms; Patient's description of effect of disability on daily life; Pain profile (in response to standardised pain questionnaires and psychological questionnaires); Contraindications to FCE testing and past medical history of note; Examination; Distraction testing; Computerised musculo-skeletal testing (including the headings Inclinometry examination; Goniometry examination; PowerTrack examination; IsoTrack examination; Hand testing; Static lift testing; Dynamic lifting assessment; Postural tolerances; Cardiovascular assessment); Vocational considerations; Vocational suitability; and finally Recommendations. It is signed by a Senior Chartered Physiotherapist. The text included comments such as:
"In response to standardised pain questionnaires Mr. reported moderate levels of pain. He scored minimally in the Waddell's inappropriate symptoms questionnaire, indicating no element of pain magnification. In response to psychological questionnaires there was evidence of low mood and anxiety with regard to reduced general function. ... Mr. was co-operative throughout testing although made very little conversation, giving the impression of low mood state. He regularly changed position when seated, reporting feelings of thoracic discomfort. ... Spinal range of movement was assessed using on-line inclinometers placed at set spinal levels with the resultant range of movement recorded. ...Range of movement of the upper/lower limbs was assessed by means of an on-line goniometer. ...An on-line, hand held dynamometer was used to record and analyse muscle forces generated as muscles contract. ... Hand testing was carried out using on-line tools which measure forces generated in standardised positions. ...Lifting capability was assessed using an on-line fixed point dynamometer in various standardised NIOSH postures. ... Manual customised lifting performed for comparison with computerised lifting and to determine material handling ability. Mr. was able to maximally lift an 18 lb box from waist to shoulder height. ... Mr. reported an increase in upper/mid thoracic discomfort during dynamic lift assessment. Mr. performed the one minute step test at a metabolic rate of 5.5, demonstrating a medium/heavy physical demand level. ... There is evidence of low mood state. ..."
The explanatory letter number 7/5 of process states inter alia:
"Physical Evaluation Systems were the pioneers of Functional Capacity Evaluation testing in the United Kingdom having introduced the concept in 1994. We now operate our own testing centres in London, Reading, Cardiff, Birmingham, Manchester, Leeds, Newcastle, Glasgow and Belfast having established a reputation for independence and excellence that recently resulted in the 1999 Insurance Award for Technology Initiative.
We currently use equipment supplied by J-Tech Medical Industries based in Utah in the United States and the Hanoun Corporation of Canada ...
...We spend a great deal of time with the patient (anything from one to three hours depending upon the type of evaluation requested) during which they can discuss their symptoms and pain experience with one of our Senior Chartered Physiotherapists.
Following extensive clinical examination and full consideration of pathology the clinician will carry out a number of objective tests which will help to highlight the problems the individual is suffering.
These tests, selected for their relevance to a particular patient, allow appraisal of body mechanics and postural tolerances including any observed bio-mechanical overload, in addition to appraisal of pain reports, heart rate and blood pressure.
The objectivity is principally achieved by using a load cell attached to each piece of equipment linked to a computer which allows the physiotherapist to measure all of the forces generated or ranges of movement available during the tests. The measurements or data allow the physiotherapist to gain a much greater insight into muscle weakness and restrictions in range of movement.
Patient safety is, of course, always the highest priority and the presence of the Senior Clinician ensures that the patient does not exacerbate any existing condition.
Many specialist doctors have taken the time to look at our operation and equipment, particularly those involved in occupational health and consider our work to be of great value. (See attached letter from one of the country's leading Consultant Occupational Physicians)."
The attached undated letter of endorsement by Dr. Richard L. Marcus states:
"TO WHOM IT MAY CONCERN
A Functional Capacity Evaluation (F.C.E.) of the quality performed by Physical Evaluation Systems results in an extremely effective and accurate assessment of an individual's vocational suitability.
Having closely observed their operating procedures and the equipment they use, I have no doubts as to the validity and consider their reports to be of great value in the assessment of personal injury cases.
The F.C.E. is carried out over a period of three hours by a widely experienced Senior Physiotherapist. A significant portion of the evaluation utilises some of the latest technology to produce clear objective findings which undoubtedly gives the F.C.E. an advantage over traditional medico-legal reporting."
Defenders' submissions
[7] Counsel for the defenders submitted that there was no doubt that the defenders were entitled to have the pursuer examined by a medically qualified person. Reference was made to Junner v North British Railway Company (1877) 4R. 686; Starr v N.C.B. [1977] 1 W.L.R. 63; Duncan v Lord Advocate, 1987 S.L.T. 349. Both medical knowledge and personal injury law and practice had advanced and become more sophisticated since Junner v North British Railway Company, cit. sup. Methods of exploring the true extent of a pursuer's condition had changed. Techniques such as MRI and CT scanning had been introduced. Medical consultants often relied on tests or reports carried out by other staff, sometimes technical staff such as scanners and radiologists. Lawyers instructed employment experts, care costs consultants and other experts. These developments should be reflected in the extent to which a pursuer could be examined with a view to making available to the court objective material susceptible to analytical assessment and allowing a more just determination of a case. In McLaren v Remploy Ltd., 1996 S.L.T. 382 the court reserved its position in relation to the ordaining of a pursuer to undergo examination by a clinical psychologist, who has no MBChB, as the defenders' motion was held to be premature. The Lord Ordinary stated obiter:
"... it is inappropriate that I should express a concluded view on the pursuer's other submissions. As at present advised, I would be inclined to regard Junner as covering psychological as well as physical examination, but I see some force in the contention that the scope of the psychological examination may require some definition, to limit the scope for its being used as a means of the defenders, in effect, precognoscing the pursuer."
[8] In a recent authority, Mearns v Smedvig Ltd., 1999 S.L.T. 585, the defenders had sought to have a pursuer examined and tested by a system known as the Blankenship system. Their motion was refused, but the difficulties envisaged by the Lord Ordinary in that case were, it was submitted, easily dealt with in the present case. In particular:
Pursuer's opposition
[9] Counsel for the pursuer opposed the motion. The pursuer had co-operated and made herself available to the defenders' medical witnesses, such as Mr. Mackay, orthopaedic surgeon. Mr. Mackay's reports were full and thorough, and the defenders had been able to make the averments in their defences partly as a result of the pursuer's full co-operation. The records of the general practitioner and the hospital were lodged in process. It was not necessary for the pursuer to be subjected to this degree of testing. Further the literature connected with PES raised concerns: was the pursuer to be subjected to standardised questionnaires relating to pain or to psychological problems. In relation to the computerised musculo-skeletal measurements, what software was being used and how accurate were the results. There was no method of testing either the computerisation aspects of the exercise, or the translation of the computer results into the sort of language used in the individual's report. Further, there were concerns about the extent of testing. Mention was made of the patient's anxiety, and about his being asked to raise an 18lb weight. There were concerns about confidentiality. Who would be dealing with the pursuer; did the physiotherapists have rules relating to confidentiality; once PES, a limited company, had the information, would the pursuer's confidentiality necessarily be respected. The report seemed to disclose quite substantial personal information about the patient, suggesting that with a little effort that patient could easily be identified. There were concerns about the extent of exploration which PES would carry out: for example, in effect precognoscing the pursuer by means of questionnaires about not only physical symptoms but also about employment prospects and psychological matters (about which physiotherapists were not trained).
[10] Counsel for the pursuer further contended that the approach adopted in Rawlinson v Initial Property Maintenance Ltd., 1998 S.L.T. (Sh. Ct.) 54 was the proper one. In that case, the court refused to allow the pursuer to be ordained to be interviewed by an employment consultant. It was not appropriate for the courts to extend mandatory examinations beyond medical examinations. The authorities sanctioned only medical examinations. The supervision being offered by Dr. Addis could be fairly remote, involving being contactable by telephone. In any event, Dr. Addis's age and curriculum vitae did not reassure in relation to the sort of testing and sophisticated equipment envisaged by PES. It was far from clear that he had the knowledge and training to deal with any problems which might arise. There was also a question whether Dr. Addis was covered by the necessary insurance, were something to go wrong in the course of examination. It was accordingly submitted that it was not reasonable to ask the pursuer to subject herself to PES for testing and evaluation. Moreover it was not unreasonable of her to refuse to be so examined and tested. The pursuer was receiving treatment from Dr. Oatts, an anaesthetist who ran a Pain Clinic at the Victoria Infirmary. Dr. Oatts had stated that the pursuer should not undergo any further physiotherapy, as it was exacerbating her condition, nor should she be made to submit to the type of exercises and machinery planned by PES. The pursuer was receiving facet joint injections and high dose diamorphine, and it was far from clear whether the tests and evaluation to be carried out by PES were to be carried out while the pursuer was taking her drugs (in which case, the results would probably be valueless) or while the pursuer was not taking her drugs (in which case she would be in pain and the examination and testing would be very bad for her). The court had to carry out a balancing exercise: Starr v N.C.B. [1977] 1 W.L.R. 63. The fundamental right to personal privacy had to be weighed against the rights of the defenders to defend themselves. The defenders had a fully-stated defence, and had expert orthopaedic evidence to support it. It was difficult to see how the defenders would be prejudiced by the refusal of the motion. The pursuer, by contrast, would be prejudiced if the motion were to be granted. She would suffer invasion of her privacy or personal liberty; she would be exposed to a risk of exacerbation of her condition; she would be acting contrary to the advice of her treating consultant; she would be faced with testing of indeterminate scope and severity, with no named person having been identified as the person in charge of the testing. The motion should be refused.
Refusal of motion
[11] I refuse the defenders' motion, for several reasons:
Lack of validation: On the information before me, there has been no independent medical review of the sort of system offered by PES. That system comprises a combination of computerisation, electronic software and mechanical equipment said to be able to measure, in an objective way, human responses, capabilities and conditions. Yet no independent peer review of the system has been carried out by a body of doctors (assisted if necessary by physiotherapists and computer technicians) whose views would be respected, confirming that the combination of mechanical devices, settings and calibrations, software and programming, and readings, would indeed give useful and objective measurements which would assist in assessing a pursuer's condition. Independent assessment could be expected to include objective properties used in evaluating measurement systems such as validity, reliability, range responsiveness, interpretability, and measurement variation. Any independent assessment could be expected to be published in reputable peer-reviewed medical and scientific journals. However there appear to be no independent reviews of the PES system in recognised medical or scientific journals. There are no endorsements by government health officials. It is not entirely clear in what capacity Dr. Marcus was acting when he wrote his letter of endorsement, but in any event his letter does not satisfactorily address the matters outlined above.
The observations of Lord Eassie in Mearns v Smedvig Ltd., 1999 S.L.T. 585, are relevant to the present case. At p.587A-B he commented: "Counsel did not elaborate on how that objectivity was supposedly achieved other than to refer to the system involving the carrying out of tests on and by the subject, the results of which tests were fed into a computer which thereafter provided a printout of certain results. Counsel was not able to furnish any independent medical view of the utility or validity of the system." At p.589H he commented: "...Mr. Blankenship (whom one is invited to assume to be the devisor of the system), is not said to have any medical qualification and there has not been put forward any independent material from appropriately qualified persons containing any view of the appropriateness or the validity or utility of the proposed examination. ...I recognise the possibility that in due course it may be that at least some of the medical profession in the United Kingdom may come to accept the system as having some validity and utility. However, on the basis of the submissions made to me it appears that it cannot be said that the medical profession has yet given the system that recognition. Accordingly what is being demanded of this pursuer is that he perform a pioneering role and subject himself to a novel or unorthodox examination and assessment. If he were so required, it appears to me that his advisers would almost certainly require to undertake the additional, novel and considerable burden of investigating, and taking advice upon, the methodology of the system, and its equipment, tools, databases and software referred to in the promotional literature. ..."
I consider that it is for the defenders, not the pursuer, to obtain and demonstrate the appropriate validation of the system proposed. Without an independent review and a body of published independent evidence validating the PES system, I feel unable to accept the assertion of PES that their system is able to offer reliable objective information about a pursuer's condition.
The development of the law to date: To date, despite the views expressed in McLaren v Remploy Ltd., 1996 S.L.T. 382, the courts have in fact authorised and ordained examinations only by medically qualified persons, i.e. practitioners who have achieved the degree of MBChB. The courts have weighed up and balanced the two conflicting fundamental rights, namely the pursuer's right to personal liberty, and the defenders' right to defend themselves, and have refused to ordain examinations by employment experts, or care costs consultants, or physiotherapists. A pursuer may of course consent to such an examination or interview, in which case the question of what the court would, or would not, ordain does not arise. But where a pursuer does not consent, the courts have to date restricted obligatory examinations to medically qualified practitioners, upon whose training, professional qualifications, standards, practice, ethics and rules about confidentiality, the courts can rely. The interests of justice, or the elements necessary for a "just determination of the cause" (Starr v N.C.B. [1977] 1 W.L.R. 63), have been recognised as requiring an infringement of a pursuer's personal liberty to that extent, but no further.
The material already available to the defenders: The pursuer has co-operated with examinations by medical experts instructed by the defenders, in particular Mr. Mackay, FRCS, consultant orthopaedic surgeon. Further, the pursuer's medical records have been lodged in process.
Practical considerations: In the particular circumstances of the pursuer's case, any physical testing or evaluation could be painful and possibly detrimental for her. There are doubts whether confidentiality would be maintained. In relation to Dr. Addis, even if it were made a condition that he should be physically present during testing, I am not satisfied that he has the qualifications necessary for a proper supervision of the operation of the PES system.
[12] In all the circumstances, I consider that the pursuer's opposition to the proposed examination is reasonable. I also consider that refusal to ordain the pursuer to undergo an examination by PES will not prevent the just determination of the cause. I accordingly refuse the motion.