Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 129

PD1339/15

OPINION OF LORD McEWAN

In the cause

SHEILA TAPP

Pursuer;

against

HELEN McCOLL

Defender:

Pursuer:  Crawford; Digby Brown LLP

Defender:  Mackenzie;  Harper Macleod LLP

13 September 2016

[1]        In this case the pursuer sues the defender in reparation for injuries sustained when the car in which she was a passenger was involved in a minor road accident in Renfrewshire in July 2012.  Liability for the accident is admitted but quantum is disputed.  During the proof an objection was made to a certain line of evidence about the pursuer’s injuries and that objection was maintained at the hearing on evidence.  I shall return to it later.  The defender led no evidence.  Both parties lodged and then orally supported written submissions.

[2]        A number of authorities were referred to, some of which were fully canvassed;  I list them below.  Other authorities were mentioned in the written submissions but few of these were fully argued.      

Davie v Edinburgh Magistrates 1953 SC 34

Ross v Associated Portland Cement Manufacturers Ltd1964 1 WLR 768

Main v McAndrew Wormald Ltd 1988 SLT 141

M v Kennedy 1993 SC 115

Di Luca v HMA 1996 SLT 924

Dingley v Chief Constable, Strathclyde Police 2000 (HL) 77

Campbell (or Pearson) v Imray [2004] PNLR 1

Drake v Harbour [2007] EWHC 25 1670 (Comm)

Vaile v Havering LBC 2011 ELR 274

Sienkiewicz v Grieff (UK) Ltd [2011] 2 AC 229

Goodman v Central Capital Ltd 2012 CTLC 158

Gestmin SGPS SD (UK) Limited v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)

Kennedy v Cordia (Services) LLP [2016] UKSC 6

Williams v Bermuda Hospitals Board [2016] UKPC 4

[3]        The pursuer was the first witness.  She is a retired teacher and was aged 64 on the first day of the proof (60 at the date of the accident).  She spoke to the accident and remembered catching her thumb in a strap, hitting her knee on a seat and banging her head twice.  Her partner Mr Kennedy was in the car with her.  The next day she experienced severe pain in her neck and shoulder and some days later went to Crosshouse Hospital for X-rays and treatment.  She then described in some detail her earlier medical history beginning with a fall from a horse when she was 15 and going beyond the present accident.  She accepted that she had fibromyalgia since 2006 as well as cervical spondylosis.  She had been on anti-inflammatory drugs before the accident.  In October 2012 she had an elective hernia repair operation.  At various times she described how her level of pain was getting worse over the years and, interestingly, added “… you don’t make notes when you are living through it …”.  At the time of the accident her home life was a job at Tesco and looking after her home and many animals (photographs were produced).  Her household tasks had now become more difficult, especially lifting.  She described that as 2012 went on the minor injuries resolved and her neck improved.  Then at Christmas there was deterioration and she felt like she had “… hit the wall … “.  She felt as if she was bruised all over in her soft tissue.  It was unpleasant and frightening.  She saw Dr Colburn (No 7/1 page 13) and her medication was altered.  She said that when she was given gabapentin she felt better.  It was at this point that the objection to the line of questioning was taken by the defender.  The matter was debated and I allowed the evidence about fibromyalgia under reservation.

[4]        The pursuer described a deterioration in her condition and how she eventually had to cease taking all medication.   That did not help, she was in “screaming pain” and the fibromyalgia drained away all her energy.  It was like an “off switch” or a “puppet when the strings go”.  She needed a stick to walk and her sleep pattern was poor.  She did, however, continue to work at Tesco but found long shifts too much.  She agreed that her hernia operation and an earlier leg fracture in 2010 also contributed to her weakness.

[5]        She described her various treatments with physiotherapy, attendance at the pain clinic, acupuncture and hydrotherapy and how she had experienced motability problems when going to concerts and the cinema.  I propose to deal later with her evidence about her employment.

[6]        In cross examination the pursuer admitted she had been in pain since she was 27 and had spondylosis and, by 2008, osteoarthritis.  In 2009 fibromyalgia was diagnosed along with a number of other painful conditions (see the letter from Dr Koualty in August 2009, No 7/1 page 83).  She described herself as having had limited movement for many years and always being on medication.  Nonetheless she was able to work in 2012 until the hernia operation.  By the summer of 2013 her neck pain was well controlled in spite of her suffering a number of other ailments eg ganglion and hand pain.  By September 2014 she was seeing Dr Bawa and later Dr Reuben and Dr McDonald (not a witness).  She agreed that her recollection might alter over time but claimed she did not have a lack of recall.

[7]        In re-examination the pursuer said her pain had never gone back to earlier levels.

[8]        I propose to take out of order the evidence of the pursuer’s partner Mr Kennedy.  He was a well-spoken man aged 46 who worked in Tesco.  He spoke to the accident and to the pursuer’s increasing disability to perform household tasks.  He now had to do heavy lifting.  He described the pursuer as being in pain, tiring easily and lacking energy.  They had to use public transport and walk at lot.  That took time.  He spoke to her reducing her working hours and retiring with a wish to start a business.  He was not cross examined.

[9]        In my opinion both the pursuer and Mr Kennedy gave their evidence carefully and did not exaggerate and I found both of these witnesses to be credible.  The detailed matters about memory discussed in Gestmin, supra, were not really canvassed at any length with the pursuer and so form no good reason to find her unreliable.  She was assisted by being referred to her medical records.  There is no reason to doubt that her description of her pain is genuine.

[10]      I now turn to look at the evidence of Dr Bawa who was the pursuer’s expert witness.  It was not seriously disputed that he was well qualified, experienced and had a good knowledge of fibromyalgia and other pain disorders including rheumatology albeit this was his first time in court.  He provided three reports dated September 2014 (No 6/9), December 2015 (No 6/14) and January 2016 (No 6/15).  In his later report on page 4 the following appears:

“… It is in my opinion as a Rheumatologist, that Ms Tapp’s fibromyalgia has been exacerbated by the index accident, increasing her baseline pain levels …”.

 

That assertion was the crux of the argument between the parties and Dr Bawa adhered to that position.  The pain was in the neck, shoulders and upper back.  He relied for support in some epidemiological studies and I will deal with these separately below.  He said he had seen a number of cases where “stressors” had exacerbated the condition and added that he would expect other rheumatologists to agree with him about exacerbation.  He had not, however, discussed the pursuer’s case with any of them. 

[11]      No 6/18 of process is a study in 1997 (Buskila and others) that supports the onset of fibromyalgia following a neck injury;  none of the patients studied had the syndrome prior to the trauma.  6/17 of process is an American study (Freeman and others, 2006) but it deals with whiplash not fibromyalgia.  6/23 of process is a Scottish study (2002 Al‑Allaf and others) and it supports the conclusion (p453) that physical trauma can cause the outset of fibromyalgia.  6/26 of process is a 2006 Australian study (Rebbeck and others) which, once again, deals with whiplash and not fibromyalgia.  6/25 of process is a Canadian study (Nolet and others, 2010) dealing with neck injury and points to the need for further research.  It does not deal with fibromyalgia.  Two Israeli studies by Tishler (2006, No 7/8 of process and 2011 No 7/7 of process) were looked at.  The earlier study challenges Buskila on “onset” and comments that more research is needed.  The later study makes no link to fibromyalgia following trauma.

[12]      I have to accept that it is not my opinion of these studies which matters, but that of the expert.  In cross examination Dr Bawa said that some of the epidemiology makes no association and others say more studies are needed.  He accepted he had seen no studies on exacerbation and, as far as he was aware, none had been undertaken.  No reference was made to any further studies, statistical or not.  I pause to observe that most of the cases where epidemiology is seen have concerned, drugs, asbestosis or other similar industrial diseases.  Such cases are far removed from the present and are often described as the “toxic tort” cases.

[13]      The last witness led by the pursuer was  Mr Simon Reuben who is a consultant orthopaedic surgeon, well qualified and of long experience.  He submitted reports and spoke to them.  He was of the opinion that the accident had aggravated the osteoarthritis and described how that would have happened.  He expected that condition to persist for about 18 months.  (See No 6/1 of process paragraph 8.1).  The treatment for the pursuer’s neck and shoulders was to be physiotherapy.  He did not change his opinion in his addendum medical report No 6/2 of process.

[14]      Interestingly Mr Reuben was asked a number of other questions about the pain the pursuer was experiencing in multiple areas.  He agreed that the drugs gabapentin and pregabalin would be prescribed for neuropathic pain.  He accepted that in this field it would be necessary to consult a rheumatologist which he was not.  Mr Crawford persisted with his questioning but Mr Reuben would not agree that the pursuer’s existing pain was caused by the accident and said quantum valeat that he would not expect such pain from this type of injury.  (See No 6/3 of process).

[15]      The witness was briefly cross examined by Mr Mackenzie and said he knew of no scientific link between fibromyalgia and trauma and the subject was outwith his expertise.  He added that fibromyalgia was a diagnosis of exclusion and had been diagnosed well before the accident.  He did not doubt that the pursuer was in pain at a level higher than the injury sustained in the accident warranted.

[16]      Mr Reuben was careful and measured and I have no hesitation in accepting all of what he said within his own expertise.

[17]      On that evidence I was addressed as now summarised.

[18]      Mr Crawford lodged two written submissions and I now look at these, referring to them for their terms.  The first of these invited me to accept the pursuer as credible and reliable on the facts and Dr Bawa on the link with exacerbation of the pursuer’s fibromyalgia.  There was no direct submission in relation to Mr Reuben or Mr McDonald who did not give evidence.  The first submission goes on to ask the court to accept Dr Bawa’s opinion standing alone on exacerbation.  The evidence was that the accident was capable of causing exacerbation and there was no contrary evidence.  The remainder of the submission dealt with quantum including wage loss.

[19]      The supplementary written submission is shorter.  Reference is made to the recent case of Kennedy, supra, and the fact that one expert can be enough.  Dr Bawa was suitably qualified, experienced and informed of all relevant studies.  There was no contrary evidence.  Fibromyalgia is well known and was diagnosed in the pursuer in 2009.  What happened to the pursuer was of a kind likely to have resulted from the negligence and there was no need for a scientific explanation (Williams, supra).  Apart from what is written, Mr Crawford argued that there was no issue of credibility and that I should accept both experts on the soft tissue injury and on the exacerbation of the pursuer’s fibromyalgia.  He said the soft tissue injury lasted 18 months and as the pain continued a pain specialist was required as a witness viz Dr Bawa, who had claimed experience of such exacerbation.  Counsel then accepted that there was a problem with the statistical studies (the epidemiology).  None showed ‘exacerbation’ only ‘onset’.  However, the symptoms had outlasted the pursuer’s normal recovery period.  There were other stresses both physical and psychological, and her hernia operation.

[20]      Counsel’s submission was interrupted by a 6 week adjournment and when the case resumed Kennedy v Cordia had been advised.  He reopened by pointing out that the defender had led no evidence.  He accordingly asked me to draw the most favourable inferences in favour of the pursuer (Ross was studied).  Dr Bawa was undoubtedly an expert.  There was no controversy about fibromyalgia as a condition.  The expert was entitled to express an opinion about “worsening” as he had seen other cases.  The expert’s opinion was what mattered even if there was no epidemiology.  Main and De Luca were looked at.  It was conceded that further research was needed.  M v Kennedy was cited.  Moving to causation Mr Crawford looked at the cases of Vaile, Drake and Williams.  In this case after her accident the pursuer’s pain became more severe.  She was on medication, had to use a stick to walk and had to stop work.  That all showed the material contribution made by the accident even though the precise mechanism was not proved.  The pursuer should be accepted as reliable.  She did not play down her prior pain or exaggerate the ‘step up’ in her pain level from 3 to 10.  The chronology of her pain was seen in her medical records and was observed objectively by her partner.  Counsel then addressed me on quantum and I will deal with that elsewhere in this opinion.

[21]      For the defender Mr Mackenzie adhered to his written submission and I can summarise that here.  The point is made that the pursuer’s whole medical history since 2006 is relevant.  Pages 2/3 of the submission detail the objection to the line and then on pages 4 to 7 there is a criticism of the reliability of the pursuer’s recollection of her pain over time and extensive reference is made to two single judge English cases.  In fairness to the pursuer she was never asked about the matters raised in the submission in any detail, and while what is written may well be correct it has to be viewed as general background.  Epidemiology is looked at and there is then a section on causation and quantum.  Vaile, supra, is looked at and distinguished and Dingley, supra, is noted as being an “onset” case.  The point is made that the type of accident described and the type of injury suffered do not support any likely link to an aggravation of pre‑existing fibromyalgia and that the other unrelated factors have superseded the effects of the minor accident.  Finally there is a full section on quantum.  What Mr Mackenzie said directly to me was this.  The consequences for the pursuer from the accident were minor and short-lived.  She already had a number of earlier medical problems which continued and began to express themselves after a number of months.  It was conceded that the defender was liable for the injury to her thumb and shin and for a few months of exacerbated neck pain (whiplash).  By March 2013 only her pre‑existing fibromyalgia remained.  The value of the case was in the low thousands of pounds.

[22]      The onus was on the pursuer to prove her case.  Counsel then reverted to his objection to the line of evidence made at the outset of the case and referred to page 5 of the Record.  The critical averment in the pleadings is in these terms:

“…a consequence of the soft tissues injuries, the pursuer has exacerbated her cervical spondylosis.  She has also developed a chronic pain syndrome …”. 

 

Read simply that suggests that any exacerbation is related to spondylosis and not to fibromyalgia.  It could also mean that the accident caused an onset of chronic pain syndrome.  The problem with that is that the pursuer had had that condition since well before the accident.  The defender had no proper notice that there was to be an assertion that the pursuer’s pre-existing fibromyalgia had been exacerbated by the accident.  Counsel emphasised “exacerbation” and contrasted that with “causing” or “the onset of”.  He said that the available records did not support exacerbation nor did Dr Bawa speak to that.  His opinion could only be as good as his reasoning (counsel referred to Kennedy at para 48).  From Dr Bawa it was only an ipse dixit.

[23]      Mr Mackenzie listed a number of matters which were not controversial.  The road traffic accident happened on 14 July 2012 when the pursuer was on holiday.  She got medical attention on the 17 July 2012 and only soft tissue injury to the neck, thumb and shin was found and treated.  She returned to her work and was able to do overtime until October of that year when she had a hernia operation.  She already had a pre-existing neck condition (cervical spondylosis) and fibromyalgia.  Counsel said that fibromyalgia was a diagnosis of exclusion ie when all other positive diagnosis has been eliminated.  All the Record gave notice of was the minor injuries although an attempt was made at the proof to claim the fibromyalgia had been exacerbated.  That was not warranted on the pleadings or the facts and the expert did not support it.  The onus to prove causation was on the pursuer and should not be relaxed.  There was no authority of that and the cases of Ross, supra,Vaile and Williams did not support the pursuer’s argument.  Wardlaw, supra,  was a different type of case.  There the pursuer did not have the condition when he went to work for the defenders.  Of the two sources of silica, one implied negligence and the other not.  Accordingly a “material contribution” was enough.  The only example of relaxation of the normal rule was seen in Fairchild, supra, where the circumstances were very different.  In Wardlaw there was no dispute that silica was the cause but in the current case there were two pre-existing conditions and then a stressor.  It had to be shown what had caused any exacerbation.  The test was whether it was more likely than not that the road traffic accident exacerbated the pre‑ existing fibromyalgia.  From the medical records lodged there was no notice of such a case.  He referred to No 7/1 of process between pages 9 and 14.  The pursuer saw various doctors in Kilbirnie but the only mention of fibromyalgia came in in the second half of 2015. Exacerbation was not mentioned.  Dr Bawa’s report of January 2016 first made mention of exacerbation (see No 6/4 of process).  The earlier report of October 2014 made no mention of it.  There was no fair notice to the defender.

[24]      Even if there was fair notice then the pursuer’s case failed on the facts.  The medical records inter alia report on neck pain and spondylosis.  Painkillers are listed in the medication review up to and beyond the accident.  The pursuer has had fibromyalgia since 2005.  The accident was less likely to exacerbate the fibromyalgia unless clear studies showed this to be the case and there was expert opinion.  It might have happened anyway and her pain was not in any one specific site all the time.

[25]      There was no factual basis for Dr Bawa’s opinion in his report or his evidence.  It was unexplained why in December 2012 the pursuer’s pain was connected to fibromyalgia.  It could not be measured in any scientific or statistical way.  Counsel referred me to Dingley, supra.  As the very reason for fibromyalgia was not known, it was impossible to say how it got worse.  In that situation the pursuer could not succeed, and this was not a case involving any policy as was seen in Fairchild.  Even the onset of fibromyalgia was controversial.  Such studies as were before the court made this clear.  Counsel looked briefly at the cases of Main, Davie and Di Luca, supra.  There was no evidence that the pursuer’s expert had discussed his findings and opinion with others (see M v Kennedy, supra).  Counsel stressed the need to look closely at the contemporary medical records and referred to the speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyds Rep 403.

[26]      Mr Mackenzie lastly addressed me on quantum and I deal with that elsewhere.

[27]      I have looked at all the cases cited and, out of respect to both counsel, propose to look at a number of them, although none is precisely in point and some can only be illustrative.

[28]      I begin with the question of a failure to lead evidence and what can arise from that.  In Ross, supra, an experienced worker fell to his death from a ladder during a job he had never done before.  The proper way to do the job was to use a moveable platform but none was available.  Sole fault was found by the trial judge and the Court of Appeal agreed.  By the time it reached the House of Lords it was clear that the defendants had led no evidence on what proper instruction or equipment was required.  The well known passages about not leading evidence are at 775, 785 and 787.  The case can at once be distinguished as it concerned the performance of a duty of care rather than causation.  Of course the wording used could apply to both but the facts of what was a simple accident are far removed from the present case.  The concept there was easy to understand, in the present case it is less easy.  In this context Drake, supra, was looked at.  That case concerned an electrical fault causing a fire.  The defendants had led no evidence of any cause and indeed the report discloses that the trial judge had been led into error over a number of speculations.  (See paragraphs 16 to 18).  In the end his robust view was upheld.  The case is also not in point on the facts and there was discussion at length about res ipsa loquitur, absent in this case.  Vaile, a case in which a teacher was injured in a violent attack by a very disturbed pupil, was next.  The facts are wholly different and the employer’s position was somewhat compromised by the headmaster’s “doctoring” of the evidence (paragraph 15).  The boy was a known risk and I do not think the case really assists.

[29]      Next some authorities on experts were canvassed.  The recent case of Kennedy was mentioned, but there the issue was whether the witness was an expert; here that is not in dispute. Further, the case concerned precautions rather than causation.  Di Luca was a criminal case where an expert referred to a report which was not produced.  That was nothing to the point since he was not relying on the report.  The case is unusual and in my view not in point as there was clear evidence about the rape from the complainer herself.  Main is in point since it establishes that if there is relevant epidemiology a medical witness can refer to it, as well as adopting passages from published works.  My only comment in the present case is that no published works were referred to, and the epidemiology is not in the pursuer’s favour.  M v Kennedy, supra, was a children’s referral and, for present purposes, the point was whether a doctor who did give evidence could speak of the examination she had done with one colleague (who was not a witness) and her discussions with another.  It was held there was no need to lead a corroborating expert and that it was not wrong to discuss her findings with a colleague.  The problem in the present case is that none of that happened.

[30]      Dingley was looked at and I now turn to it since it touches upon published material.  The case concerned the point of whether a road traffic “whiplash” injury could trigger multiple sclerosis.  There were many experts and the problem arose because the Lord Ordinary had not properly explained his analysis of the medical evidence.  In the Inner House that was undertaken de novo and at some detail and length.  That approach found approval in the House of Lords.  The only point in common with the present case is that where there is literature and other studies it is necessary for the expert to take account of it and for the court to make a value judgment of the expert on that basis.  I have tried to do that in this case.  I remain of the view that it can have only one result.

[31]      Next are two cases of delay, neither of which is in point.  Campbell v Imray, supra, concerned solicitors who had failed to raise an action within the prescriptive period.  Accordingly on the facts the case is wholly different and can be distinguished.  It was also referred to on the issue of quantum but again the injuries sustained by Mrs Campbell were quite different from the present pursuer.  Williams was touched upon.  That dealt with delay in undertaking medical treatment for appendicitis which resulted in severe complications.  In the first place the medical risks of delay were well known and that places it out of context for present purposes.  Also the point was what was an acceptable time frame for a CT scan in relation to causation?  I do not find the case of assistance.

[32]      I finally want to look at a case which was merely mentioned in passing for the speech of Lord Pearce namely Onassis v Vergottis, supra, pages 431 to 436.  Ostensibly the case is about shipping and shares in a tanker, but in reality it concerned two elderly men in love with the same woman, the famous opera diva Maria Callas.  As Lord Pearce makes clear the great love had turned to hatred (page 432) (the case in court was much written about at the time and in later literature.  There was some disgraceful behaviour by the men in an expensive London hotel.  Lord Salmon sat in the Court of Appeal when the case was there, (long ago he told me all about it). There was no law involved in the case, it was all fact and credibility and there were two conflicting accounts of the tale.  Each man wanted to give the singer a substantial share in the ship.  Telegrams were sent and they all discussed the matter over dinner at Maxims in Paris and at another famous restaurant there.

[33]      The importance of the case for present purposes is that the correct and best way to test such a conflict is to look at contemporary documents, in the present case the medical records of the pursuer.  I have already commented on these and I repeat that in my opinion they simply do not support any case of exacerbation following the accident.

[34]      I turn finally to my decision on the case and the question of damages.

[35]      I will uphold the defender’s argument that no fair notice has been given of any case that the accident to the pursuer has exacerbated her pre‑existing fibromyalgia.  A proper reading of the single averment, already quoted by me, does not support any such case and the first notice which the defender got was in a second medical report by the pursuer’s expert witness.  I fully appreciate that matters have moved on since the cases mentioned in the defender’s written submission at pages 2 and 3, and that some judges have taken a relaxed view of Chapter 43 cases.  However, the way the averment is framed is such that there is no fair notice to the defender of the case sought to be made in the evidence allowed under reservation.  No attempt was made to amend and it cannot be disputed that the subject of investigation is a controversial medical condition which may be a diagnosis of last resort.

[36]      It was said, correctly, that the defender led no evidence on this controversial point.  I have referred to this elsewhere for other reasons but for present purposes that criticism virtually disappears when the defender came to court not expecting any such case to be made.  Had the pleadings been in proper form I do not doubt that they would have led an expert to deal with it and if not then a Ross v APC, supra, criticism could have been properly made, though I refer to what I have said earlier on this point.  That finding on the pleadings simplifies the case as to injuries and quantum.  However, if I am wrong about it, it is my opinion on the evidence that the pursuer has not proved the link between the accident and any exacerbation.  I do not criticise the pursuer whom I have accepted as honest as was her partner.  I do not doubt that she will always attribute her present pain to the accident and believe that to be the cause.  However, that is not enough.

[37]      I have already accepted Dr Bawa as a suitably qualified expert in this field.  The problem is that the link simply depends upon his ipse dixit.  There is no literature to support the “exacerbation theory” and such epidemiology as was spoken to in evidence is against any link of this nature.  Dr Bawa accepted that “onset” may be another matter but that is not this case.  It is a matter of regret that there are no further or conclusive studies but such is the present state of medical knowledge.

[38]      I now deal with the question of damages and propose to start with the claim for loss of wages.  What is said about this is on pages 5 and 6 of the Record.  In summary it comes to this.  The pursuer worked in Tesco and was on a “zero hours” contract with one eight hour shift and the chance of overtime hours.  She avers the accident caused her to be absent from work, face disciplinary action and work shorter shifts.  She retired early “… materially influenced by her increased pain level as a result of the accident …” (Record 6B).  She alleges she was bound to repay sick pay.  There is a degree of agreement about her wage rates with her employer and some of her work after the accident.  The date of her retiral is agreed as 8 November 2014 when she was 62 years and 3 months.  From the averments and the joint minute it is clear that the pursuer went back to work after the accident.  It is agreed she had elective surgery in October 2012 for a hernia and was off work.

[39]      What then was the evidence about all of this.  It comes almost entirely from the pursuer and what she said was this.  After the accident she worked for five weeks and then after the surgery she was off work for 12 weeks gradually returning to work thereafter.  She then said she worked as many hours as her employer asked.  Her employers were not sympathetic.  The pursuer worked at a checkout with a conveyor belt.  She said the reason she retired was because of lifting and turning heavy plastic bottles from the conveyor.  In examination in chief Dr Bawa said that the accident injury did not affect her ability to work or put her at any disadvantage in the labour market.  Mr Reuben was of the same view.  (See No 6/1 of process, page 8).

[40]      The pursuer’s counsel in argument and in his written submissions invited me to calculate a large award for wage loss continuing after the accident and after early retiral, the figures are quoted in the first submission.  The part wage loss was valued at some £1600 and early retiral at £15,000.  I was asked to apply a “broad brush”.

[41]      The defender on the other hand said that, whatever caused the increasing pain from fibromyalgia, no wage loss had been proved.  The whole matter was inspecific.  The pursuer returned to work after her holiday and worked till her operation.  The reason for her retiral related to the task she was doing at the time and was not related to fibromyalgia or any neck or shoulder pain.

[42]      I agree with the defender about this.  There is no material proved to make any award for loss of wages or for early retiral at all even if, contrary to my decision, the accident did exacerbate pre‑existing fibromyalgia.  The independent medical evidence does not support a claim for potential loss.  There is a claim for loss of services and the defender accepted some award was due.  On the evidence led I will award £1,000.

[43]      That leaves a claim for solatium.  I have held that the accident caused soft tissue injury and neck and shoulder pain continuing for a maximum of 18 months.  The pursuer also had pre‑existing pain due to fibromyalgia and from her operation which was slow to heal.  A number of cases were canvassed in argument and in the written submissions.  On the evidence I have accepted I think the sum of £5,000 would be appropriate.

[44]      If I had had to award solatium on the basis that the accident had indeed exacerbated her pre‑existing fibromyalgia then a higher figure would be necessary.  It is impossible to quantify by how much there was exacerbation.  Mr Crawford (page 10 of his written submission) took a starting figure of £38,000.  It is really a matter of impression but on the evidence I would have awarded her £20,000 over and above the sum awarded for the minor injuries.

[45]      I have made no calculation of interest and I propose to put the case out by order so that the parties can either agree a lump sum or make further submissions on the matter.