James Mcnulty V. Marshalls Food Group Ltd
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen |
| Date | 23 October 1998 |
| Docket Number | "C/o |
| Court | Court of Session |
| Published date | 06 February 1999 |
| OPINION OF LORD MACFADYEN in the cause JAMES McNULTY Pursuer; against MARSHALLS FOOD GROUP LTD Defenders: ________________ |
23 October 1998
Introduction
On 15 March 1995 the pursuer was working in the course of his employment with the defenders as a process operator at their factory premises at Farm Road, Cambuslang. He was unloading pallets of boxes of chickens from a lorry at the Brine Room loading bay there. For that purpose he was using a manual pallet truck. The forks of the truck were inserted into a pallet, then raised. The truck was then pulled along the platform of the lorry to the loading bay. Attached to the loading bay there was a hinged metal plate which formed a bridge between the loading bay and the lorry platform. The pursuer had reached the stage of unloading the last pallet from the lorry. As he was manoeuvring the pallet truck from the lorry onto the loading bay, it stuck, and came to a sudden halt. Part of the load of boxes, despite being partly bound in a plastic wrapper, shot off the pallet truck towards the pursuer. Although the pursuer, seeing what was happening, had turned to run out of range of the projected boxes, he was stuck by one or more of them, and fell. In this action he seeks an award of damages in respect of the loss, injury and damage which he has suffered as a result of that accident. It is unnecessary to examine in more detail how the accident came to happen, because the defenders admit liability to make reparation to the pursuer for such loss, injury and damage. The proof which I heard was concerned solely with the identification of the injuries suffered by the pursuer in the accident and quantification of the resultant loss.
The Nature of the Pursuer's Injuries - Lumbar Disc Prolapse
The major issue in the case is whether the main disabling condition from which the pursuer was subsequently diagnosed as suffering, namely a prolapse of the intervertebral disc at L5/S1 level, was caused by the accident. I shall discuss the competing views expressed on that issue by the four consultant orthopaedic surgeons who gave evidence in due course, but it became clear in the course of their evidence that much would turn on whether and, if so, to what extent the pursuer had suffered from symptoms in his lower back between the date of the accident and the end of October 1995. It is necessary, therefore, to examine the evidence about the pursuer's symptoms and complaints from time to time during that period with some care.
According to the pursuer's own evidence, which was the only direct evidence led about the way in which the accident happened, he was walking backwards facing the pallet truck, holding its handle at about chest height. He was using the handle not to pull the truck, but to control the momentum imparted to it by the slope of the lorry's platform, and also to steer it. The boxes were piled on the pallet some eight or ten high, so that the load was about six feet in height. Each box contained six to eight large chickens, and was accordingly heavy. When the truck stuck, the upper six to eight layers of boxes flew off towards the pursuer. His room for manoeuvre was limited inter alia by a stairway going down to one side of the loading bay. To get out of the way of the boxes, therefore, the pursuer turned round and attempted to run out of the way. He was, however, struck on the back below the left side of his rib cage and on the back of his left leg just above the knee. He does not know whether one box or more struck him. He fell to the floor of the loading bay. He felt a sharp pain in the back, and his neck and shoulder were quite painful. In the immediate aftermath he did not feel well. He was shaking, and experiencing hot and cold flushes. The neck pain and the shaking were the dominant features of what he felt. In cross examination, the pursuer said that the events of the accident were "more or less a blur". He felt pain in his left leg and below his rib cage on the left side. He knows he fell, and remembers being on one knee trying to pick up the boxes. Nothing struck him on the back of his head or his neck.
Shortly after the accident, which happened between 11.30 p.m. and midnight, the pursuer was attended by a first aider, who applied pain relieving spray. The pursuer's evidence was that it was applied to his neck, and below his rib cage on the left side. The first aider did not give evidence, but his or her records contain entries relating to the pursuer timed at 12.10 a.m. and 2.00 a.m., referring to "backache" and the application of "P[ain] R[elieving] Spray". The pursuer had no recollection of a second application of spray, and thought that he had gone home by 2.00 a.m. As Mr Mann, one of the defenders' medical witnesses, pointed out, those references to "backache" are inspecific as to the part of the back affected.
Mrs McNulty gave evidence about being wakened by the pursuer's unexpected return home, and said that he was shaking and holding the back of his neck. The next day, he was complaining of his neck being sore, and arrangements were made for his brother to drive him to hospital.
When the pursuer attended at the Accident and Emergency Department of Stobhill Hospital on 16 March 1995 at 5.40 p.m., he was seen by Dr Samuel Miller, who is primarily a consultant radiologist at Hairmyres Hospital, but who undertook sessions in the A & E Department at Stobhill in order to maintain his clinical skills. He was thus a more experienced doctor than most A & E house officers. His notes record the pursuer as having suffered direct trauma to the left occiput and left side of neck. That is at variance with the pursuer's evidence, in respect that the pursuer denied stating that he had been struck on the head and neck. Dr Miller recorded the pursuer as complaining of a diminished range of movement in the cervical spine and paraesthesia and pain radiating over the left side of the neck and shoulder. On examination he found no neurological deficit, a diminished range of movement in the cervical spine, and a full range of movement in the left shoulder. He had the cervical spine x-rayed, and detected a diminished disc space at the C5/6 level (although that was not reported by the radiologist Dr Semple, who mentioned slight reversal of the normal curvature, and no malalignment or fracture). Dr Miller stated in evidence that if there had been signs or complaint of a back injury, he would have recorded it. In that respect his evidence was not contradictory of the pursuer, who said that at that stage the neck and shoulder pain was very severe, and was taking precedence over everything else. He thought the neck injury was the real problem. There was also a dull ache or numbness in his back, but he thought it would go away with painkillers. The pursuer was given a cervical collar and analgesics.
The pursuer first attended his general practitioner on 22 March, a week after the accident. At that stage, the record made by the doctor was in the following terms:
"Wearing a collar. Accident at work 1/52 ago. Pallet fell & hit his neck."
Dr Burton, having begun his evidence with an account of seeing 30 or 40 patients a day, allowing on average 71/2 minutes for each appointment, could say no more than that that entry was presumably what the pursuer told him. On the same day the pursuer also saw Dr Bruce, the defenders' works doctor. His notes record the accident in these terms:
"Struck on back by load - staggered forward - felt pain at back",
and go on to record the pursuer as complaining of pain at his back and left shoulder radiating down his left arm, with paraesthesia. The examination which he conducted appears to have concentrated on the cervical spine. Again Mr Mann commented that the references to the back were inspecific as to level.
The pursuer remained off work for some nine weeks after the accident. In evidence he described his symptoms during that period as being predominantly pain in his neck. There was also pain in his back, but he described it variously as "not severe" and "bearable". There continued to be no reference to pain in the lower back in the medical records. In an entry dated "19.5.95" but probably made on 19 April Dr Burton recorded a complaint of continuing pain in the neck with some paraesthesia. Dr Bruce recorded a similar complaint on the same date. On 17 May Dr Burton recorded that the pursuer was "pain free", and certified him as fit to return to work. The pursuer, however, explained in evidence that he was under pressure from the defenders' personnel officer, Mrs Ford, to fix a date for returning to work or risk losing his job. That was challenged in cross examination, but the pursuer maintained his position, and Mrs Ford, although her name appeared on the defenders' list of witnesses, did not give evidence. The pursuer stated that, in that situation he asked Dr Burton to sign him off as fit for work. Dr Burton confirmed that it was often the patient who asked to go back to work, and that in such a situation he would rely on the patient's statement as to whether he felt fit.
When he returned to work, the pursuer was initially given light duties, but shortly returned to his normal work. During the period when he was at work, he completed two documents on which reliance was placed in evidence. The first of these was a TGWU Particulars of Accident Form, which the pursuer completed on 25 May. It contained (at paragraph 13) an account of the accident in the following terms:
"hit on the leg and left hand side ... started shaking, feeling sick, pain in back and neck".
In paragraph 21, however, the injury was explained wholly in terms of neck injury, with no reference to the back. The second document was a "Statement of Losses and Expenses Questionnaire" completed by the pursuer on 9 June for his solicitors. In answer to a question about the exact nature and extent of his injuries the pursuer wrote:
"Neck injury, constant pain when moving...
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