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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Johnston v. Edinburgh District Council [2007] ScotCS CSOH_171 (19 October 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/2007CSOH171.html
Cite as: [2007] ScotCS CSOH_171, [2007] CSOH 171

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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 171

PD1328/05

OPINION OF LORD McEWAN

in the cause

GEORGE JOHNSTON

Pursuer;

against

EDINBURGH DISTRICT COUNCIL

Defender:

ннннннннннннннннн________________

Pursuer: H Campbell, QC; Blessing; Thompsons

Defender: McIlvride; Ledingham Chalmers

19 October 2007


[1] Shortly after lunchtime on 28 October 2004 two road users were to be found in Oxgangs Crescent, Edinburgh next to where it goes slightly downhill to form a T-junction with a main road, Oxgangs Avenue. The junction has a bell mouth and there are "Give Way" markings. All of this is well seen in the various photographs produced in evidence (for example No. 6/14 of Process page 14).


[2] One of the men was the pursuer, then a man aged 60 . He worked for the defenders in nearby high rise flats (since demolished) and at the time was pedalling home on his cycle (seen in No.6/13 of process) to the Meadowbank area of Edinburgh. That is a distance of some eight miles. It was his habit to cycle to and from work. The other was the defenders' employee, Mr Toorish who was driving an empty long fixed wheelbase Renault minibus. Toorish had taken the bus home at his lunch break and was proceedings back to Morningside to collect his disabled passengers before taking them home. He would then return the bus to the depot in the Craigmillar area of the city.


[3] What happened as they each went on their way is a matter of acute disagreement and there can be no escape from the conclusion that one of them has been untruthful. In short, the pursuer says he was ahead of the bus, reached the junction, saw nothing coming and went round to his left. The bus followed him, tried to overtake and cut him off. He had to jump from his bike when the bus struck him. The bus driver, on the other hand claims that he was in front of the cycle and stopped at the junction very close to the nearside kerb (seen in No. 6/14 of process, photo 8). The cyclist tried to come up the nearside kerb but hit the bus. The driver then claims he saw the cyclist "stage" a fall from his cycle. Certain remarks were attributed to the bus driver and I will deal with these later as also the medical dispute between the parties.


[4] The pursuer and his wife gave evidence as did Toorish. The pursuer also led an expert, Mr Greatrix and two surgeons Mr Court Brown and Mr Gaston. The defenders led Dr Blake and Mr Annan (on Commission No 25 of Process). There is a Joint Minute.


[5] Mr Campbell moved me to find for the pursuer and award damages. The evidence presented a straight-forward choice as to who was ahead at the junction. The pursuer was a straightforward and careful witness. Since he was a fit man he was able to get up from his fall and cycle on. His wife was a credible witness and to her he repeated the remark of the driver. That was a remark averred on record.


[6] She was not cross-examined on this point. The injury and the accident were not fabricated and he made an immediate complaint to the defenders. There was also a lack of cross of the pursuer on the version of the accident adopted by Toorish, who presented an air of injured innocence and was a self serving witness. At the speed he was doing he would have been a long way ahead of the pursuer. It was highly unlikely that the cyclist would "take on" the bus in a race round any corner. In the position Toorish said he was the pursuer could not have gone between his nearside and the kerb. Mr Greatrix agreed on that point. The pursuer could not fabricate a non-existent injury. Why would he pretend to fall on his weak hip. In any case the genuine nature of his injury was soon medically evident. He could never have been sure that any "pretend" fall would damage his hip.


[7] The pursuer had proved the causative link between the accident and the hip damage. The accident had loosened the joint and once loose it only got worse. It could not be said that the operation at the Golden Jubilee Hospital had produced a poor result. The early X-Ray and follow up report showed a good result. Thereafter what was important was the history which showed a return to work and lack of any serious pain in his daily life. The trauma of the accident contributed in a major way to what was seen in the Leith X-Ray. Gaston should be preferred. He saw the site, did the operation and was not reliant simply on X Rays. Mr Court Brown supported Gaston and disagreed with Annan. In the result, what happened had accelerated the need for a second operation by several years. Annan did not have the advantage Gaston had.


[8] Mr Campbell invited me to award damages on the basis that a fit and active man had had to have an accelerated operation at the age of 62 with the risk of further operations as he got older. He had suffered pain over a considerable period. His wife had had to help him. Solatium should be in the upper range of awards. The Joint Minute stated various dates to enable wages loss to be calculated. The pursuer would have been able to work to age 65 if the accident had not occurred. So far as interest was concerned he invited me to put the case out By Order for a discussion on that.


[9] Counsel for the defenders invited me to grant absolvitor. On the merits he accepted it was a question of credibility. Toorish was a very experienced driver and his account in evidence was consistent with his written report. The pursuer's evidence was inconsistent with someone who had been knocked off a bike. He never blamed Toorish at the time. The defenders' account was put to the pursuer and what he may have said to his wife was no more than a de recenti comment. There had been no accident reconstruction and the expert witness did not assist matters. In any event the pursuer was partly to blame for his accident.


[10] In any event the accident had had no material effect on the loosening of the limb. The pursuer had to rely on Gaston as Court Brown's evidence was based on an assumption. Annan was more experienced than Gaston, and correctly identified an ongoing problem seen as early as November 2002 in the X Ray. There would have had to be an operation irrespective of the accident. The accident itself would only cause muscle pain lasting a few weeks. The socket was loosening before any accident. That was shown by the ongoing pre-accident symptoms and the Leith X Ray. The first replacement was loosening and bone cement wearing was evident. A jolt was not enough to displace the socket. In any event he would have needed a second hip operation shortly after 2006.


[11] It was important to acknowledge that even as late as the accident the pursuer did not have confidence in his hip. That showed that something was wrong with the first operation. The natural process meant the appearance of debris in the socket. The jolt did not do that. Looking to the degree of acceleration Gaston suggested six years. Court Brown suggested 12 but revised that by 50% in his second report. A figure less than 6 was appropriate if there was any acceleration.


[12] Mr McIlvride divided his argument on quantum into several alternative chapters. He said that if the defenders were liable at all it was only for an aggravation of a muscle injury on an already loosening hip. That would only justify a low award of solatium for a minor soft tissue injury from which there would have been complete recovery. Interest would all be to the past with no wages or pension loss or loss of service.


[13] If, however, the defenders were liable for accelerating the deterioration in the hip solatium should remain at a modest amount as a second operation was inevitable anyway. In this case there was no exposure to extreme pain for a long period. Most of the solatium should be attributed to the past. Any past wages loss and any pension loss had been agreed. There was no evidence as to how long he would have worked into the future and so only a nominal figure could be taken.


[14] For completeness I should add that at the hearing both parties referred me to a number of authorities which I note below. These were canvassed mainly as examples. Viz McKenzie v McKenzie 1943 SC 108, McShannon v Ailsa Perth Shipbuilders 1994, SLT 500, Wilders v Peppers (1996) K and K H1-022, Fletcher v Thames Valley (2000) K and K H1-023, Dickson v Lothian Health Board 1994 SLT 525, Hardwick Shaw v Tofari (2005) (not reported).


[15] The first matter to be decided is the merits. I have no hesitation in accepting the pursuer as credible and reliable in what he said. He was aware of the minibus as he heard it. I hold that as he turned left at the junction the defender's vehicle was trying to overtake him round the corner and it struck the right handlebar of the bicycle. The pursuer lost his balance and jumped clear to avoid landing under his cycle. He landed heavily on his left foot then his right and ended in a crouching position. That description is consistent with a fall when turning left. I also accept his evidence that Toorish said to him at the time words to the effect that he was "trying to beat him round the corner ...". The pursuer repeated that to his wife when he got home and her evidence of that fact is supportive of his credibility.


[16] I believe the pursuer when he said that rage and adrenalin allowed him to cycle home. The route he took does not matter. What is important is that when he reached the hill up to his home he had to walk as his left leg "...would not work ..." Within days he was attending his doctor and being sent for X-ray. He was in severe pain which conservative treatment and injection did not alleviate. I shall deal with the medical treatment later, but he never again worked and was retired at the age of 62.


[17] The only opposing witness to the pursuer's account was Toorish. I found him to be an aggressive self serving witness. In his evidence he said he was not looking in his mirror but felt the cycle collide with his nearside at the rear. According to him he saw the pursuer still upright before performing what he described as a "... pathetic stumble ...". In his Report (No. 6/21) he said it was "... the most pathetic fall you would imagine ...". I find all of this inherently improbable. The pursuer knew he had had an operation in 2002 on his left leg and a prosthesis fixed in place. He had been successfully back at work for many months and was once more active. Why would he risk pain and injury again by overtaking between the bus and the kerb and then deliberately falling on his "bad leg". I simply do not believe that account which Toorish also called a "... comedy act ...". The bus was in any event without a mark.


[18] It is important to take note of the evidence of the pursuer's expert witness Mr Greatrix. His report, with plans, measurements and photographs is No 6/14 of process. The report is not in dispute and insofar as it relates to measurement of road, angles, vehicle and cycle I accept it without reservation. Mr Greatrix is an expert of long experience in road traffic and other matters. He is entitled to enjoy the confidence of the Court. He accepted that he reported long after the relevant events and could only offer an opinion on that basis. I find, however, that what he saw, calculated and said supports the pursuer on the facts. He was aware of the competing accounts to be given and which were given.


[19] Of importance is the steering geometry on the bend, the turn centre and the amount of cut and clearance (see pages 7 and 9). The cycle handlebars are a constant 0.6m. Unless the Renault bus was well to the offside as the expert said in cross-examination there is simply no room for the pursuer to attempt to undertake it. If the bus was near the nearside kerb (as Toorish said it was) there was no room for the cycle to pass. The maximum cut in is at the rear of the bus and there is simply no room for the cycle to undertake (see paras 55, 58 and 60). The witness gave his evidence fairly and with moderation. I accept it and rely on it.


[20] The pursuer is therefore entitled to damages. On the account, I have accepted no question of contributory negligence arises. The cause of the accident was the failure of the driver to keep a proper lookout and avoid colliding with the pursuer who ought to have been seen by him.


[21] The next issue to be looked at is the question of causation. Did the accident cause the displacement of the prosthesis in the hip with attendant pain and suffering and the need for a second operation in 2006. If not, the pursuer can only recover for minor soft tissue injury.


[22] When he was an adolescent the pursuer had problems with his hips and this is documented in the medical reports before me and in the evidence led. He described it as an old cricket injury. When he was aged in his late 50's he developed osteoarthritis in his left hip. In November 2002 he was admitted to a hospital in Clydebank (Golden Jubilee Hospital) under the care of Mr Foxworthy. A left Exeter total hip replacement was carried out. X-rays were taken at the time and one was available at the proof (No. 6/3). On the evidence of Mr Gaston, Mr Court Brown and the contemporary reports I am satisfied that a good result was achieved from this operation. Mr Annan was of a different opinion but I do not accept the extreme position he adopted. There is no evidence that at that time the result was other than satisfactory and what is not known to exist should not be postulated as existing. A year later Mr Foxworthy reviewed the pursuer and another X-ray was taken in November 2003. It is not now available ("the missing X-ray") but was seen by Mr Gaston in 2005. In No. 7/6 of Process at page 26, is a copy of Mr Foxworthy's report of 12 November 2003. He reports "... the check X-ray is satisfactory ...". This is a report by the surgeon who did the earlier operation and in my view is entitled to great weight.


[23] The surgeon reports absence of pain but some continuing limp. Within a month he was back at work and able to manage. He was also able to cycle 14 miles every day to his work. I do not doubt he may have had some discomfort ongoing and did not have full confidence in his hip. He appears to have made light of this.


[24] Following the accident he was in considerable pain from his hip and groin. He was unable to work. I do not think this was just a coincidence with a hip joint already breaking down. The X-ray taken after the accident at Leith (No. 6/4) shows loosening of the prosthesis. Both Mr Court Brown (a most experienced surgeon) and Mr Gaston who performed the second operation in 2006 said that the accident had accelerated the loosening. Mr Court Brown said that pain was the "touchstone" of loosening and that was what the pursuer was experiencing. That is the weight of the evidence. On the other hand Mr Annan (also very experienced) has tendered an opposite view.


[25] I have to have respect to his view, with respect, and prefer the contrary view which accords with the weight of evidence. I think importance must be attached to the opinion of the surgeon who did the operation (Mr Gaston). If one includes Mr Hawksworthy there are three surgeons who considered the earlier operation to be satisfactory. Mr Annan has suggested the contrary but I think there is no evidence at this time to support that and much evidence against it viz the cycling, the lack of pain and the return to work.


[26] In my view, the pursuer has proved the accident to be the cause of the displacement of his prosthesis and the early need for a second operation in 2006. Much was made of the fact that in time the 2002 operation would have eventually deteriorated and a further operation required. It is in a sense a matter of speculation and considerable ranges of opinion were given. I think Mr Court Brown was unfairly criticised for changing his view on this in his report 6/15. It must be remembered that that was done in October 2006 long after the second operation when further and better information was available. I think he was right to say the issue in the circumstances of this case was academic.


[27] I now move to consider damages where a range of different options was presented to me in the Joint Minute and a written submission from the pursuer's advisers. In the Joint Minute, paragraph 12 to 14 cover wages loss to three separate periods ending with one year after the accident. In paragraph 15 the date goes to date of the proof, beyond the second operation by which time he was retired from his work and shortly before he became 63.


[28] In my opinion, the pursuer is entitled to a substantial award for solatium. He was in constant and increasing pain between the date of the accident and his recovery from the second operation in June 2006. On the evidence his second operation was needed at least some six years too early. He had been an active fit man who was able to cycle many miles a day. I assess solatium at г15,000 without interest. Two thirds of this is past solatium.


[29] In my view, the pursuer is entitled to his loss of wages to the date of the hearing (June 2007). The job he was doing did come to an end when the flats were demolished at the end of 2006. There is no reason to think, and certainly no evidence, that he would not have been given another job and been able to work probably to age 65 (it is, of course known from No 6/8, page 1 and his own evidence that he was retired due to his injuries in May 2006). Using the figures in the Joint Minute I award г25,750 in round figures. Interest will have to be calculated and added. As to the future, I think that while he is fit enough for some work, the evidence does not make it clear what work he could have done. On the figures in paragraph 16, I think that a multiplier of 1.5 is appropriate to take account of his age and other imponderables. That is a figure of г18,000.


[30] I was asked to award the pension loss agreed at г1,350. Services I can only take a broad axe to. The pursuer's wife had to assist him and I estimate services at г1,500.


[31] As asked at the hearing, I have not made any interest calculation on the awards. Counsel asked me to put the case out By Order with any draft awards stated so that interest could either be agreed or further discussed and a final total calculated. I shall accordingly do that.

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