"When trying to move the machine the pursuer suffered an injury to her lower back which has resulted in a chronic low back pain syndrome and is responsible for her level of disability. She had hoped that she would make a full recovery and indeed in the majority of cases of similar injury, a return to work can be expected within a maximum of 18 months. The acute episode of low back pain which the pursuer suffered as a result of the accident has not subsided completely since."

The sheriff then goes on in that finding in fact to list the continuing problems suffered by the pursuer, but it is not necessary to rehearse these in detail. In essence, the sheriff held that the pursuer (i) suffers from a significant chronic back problem and (ii) that the back problem and its chronicity is attributable to the accident which occurred on 15 May 2000. These two aspects of the essence of the sheriff's findings are what is challenged by the defenders and appellants and are generally mirrored in their grounds of appeal.

"The Pursuer has exaggerated her condition. She has carried out a deception on those who have examined her as well as her legal representatives. She is a malingerer."

The principal basis for this contention was the observations of a private investigator and a video tape of the pursuer taken on 1 August 2005 when she attended at Ninewells Hospital, Dundee for examination by a medical expert, Professor Rowley, instructed by the defenders and appellants. The sheriff however rejected these criticisms of the pursuers' credibility. Before us counsel for the defenders and appellants challenged the sheriff's approach to the issue of the pursuer's credibility and submitted that no sheriff could ever reasonably conclude that, as respects her having significant continuing back pain, the pursuer was a credible witness.

"It does appear that there has been a remarkable change in the physical demeanour of the pursuer."

For our part, having viewed the video, we would simply say that in this latter footage the pursuer appears to be walking relatively normally. And given the limited footage of the pursuer and her husband walking towards the bench in the hospital, while noting that there is a change of demeanour, we would not be disposed to apply any particular adjective in describing the change.

"The pursuer, in her evidence, was consistent in that she said she had good days and bad days and sometimes during the day her condition could change. On this particular day she said in evidence that her back was 'like a block of ice' and very sore after the car journey from Portlethen to Dundee. Even though she had taken diazepam and a painkiller before leaving Portlethen as she was dreading the journey, I accepted her evidence that her back was extremely sore after sitting in a car for over one and a half hours. She further explained in evidence that immediately prior to seeing Professor Rowley she had taken two further diazepam tablets and then after her meeting with him had finished she had gone for cup of tea in the centre of Dundee whereupon she took another two diazepam. Although she was prescribed diazepam tablets her evidence was that she did not take them regularly but intermittently as she did not want to become addicted to them. Her evidence was that as a consequence of taking these diazepam tablets their effect later that afternoon was to make her feel very relaxed. Walking helped the pain in her back at all times but on this particular day she was relieved the second examination by Professor Rowley was over. As it was a beautiful sunny afternoon she and her husband had walked along the bank of the River Tay on a metalled level footpath and then walked back to their car before the journey back to Portlethen." (Appeal Print p.58)

"Both Mr Wardlaw and Mr Knight who had seen the video film taken accepted the pursuer's explanation and did not find it inconsistent with their findings of the pursuer's physical disability following the accident. Professor Rowley and Professor Breusch both adopted a contrary view and suggested that the pursuer was exaggerating her symptoms and indeed misleading those medical witnesses who had examined her." (Appeal Print p.59)

In the next paragraph of his Note the sheriff immediately addresses the conflicting views of those orthopaedic surgeons and the prima facie question posed by the video for a lay viewer. He says this:

"When faced with eminent medical experts giving such contrary views, it is difficult for a sheriff to assess which view he prefers. I had the benefit of seeing the pursuer in the witness box for some 5 days and being the subject to extremely detailed cross-examination. At first, on viewing the video, I was somewhat sceptical about the pursuer's evidence and felt that her credibility might be questionable. However, having seen and heard her give evidence and taking into account the views of Mr Wardlaw and Mr Knight, I am not persuaded that she is exaggerating her symptoms nor that she is a malingerer. On the contrary, and particularly taking into account the evidence of Mr Knight who had physically examined the pursuer after the proof had started and after viewing the video, I was satisfied that the pursuer was both credible and reliable. I therefore prefer the opinions of Mr Wardlaw and Mr Knight."

"I was reinforced in my view by the evidence given by Doctor James Hendry who examined the pursuer in July 2003 and produced a psychiatric report indicating that she was suffering from a major depressive disorder of moderate severity linked to chronic pain and loss of employment, social life and general activities. He had, in addition, examined her in June 2005 when he found she was no longer suffering from a major depressive disorder or any mental disorder with considerable improvements in her condition noted by him, all achieved without medical assistance. Throughout his two examinations of the pursuer, Doctor Hendry believed that she was honest in reporting her condition to him.

It was also clear from the evidence of her husband and her son that she had been extremely house proud and found it hard to accept that she could not do the tasks she did before to maintain her house in pristine condition. She had had to accept with reluctance help from her sister-in-law for spring cleaning etc, help from her son and husband over household tasks, and had had to employ a window cleaner and a gardener. The impression I clearly formed was that the pursuer sustained an injury to her back in May 2000 which had caused her such debilitating back pain that she was unable to perform basic household tasks.

The medical evidence from the records and from Doctor Hendry indicated that the pursuer was anxious to get back to work and the fact she was unable to do so caused her depression. There was further evidence that she had returned to work for 3 months after the accident assisted by her son who had carried out all the lifting duties. It was only when she found that even that limited form of employment caused her too much pain with her back that she had ceased employment. All of these were indicative in my opinion of a person desirous of returning to her employment as soon as possible after the accident but finding herself unable to do so.

The averments of her being a malingerer obviously caused the pursuer some considerable distress. Her excellent assessments by her line manager showed that she was an extremely conscientious and honest employee who was highly regarded by her employers. The averment of the defenders that she has deceived her medical examiners and her legal representatives does not sit easily with the glowing references received by the pursuer whilst she was in the employment of the defenders and entrusted with handling substantial sums of money on behalf of the defenders on her own without assistance or supervision. I was satisfied that the pursuer was not a malingerer and I accepted her evidence as credible in relation to the activities on the day of her examination by Professor Rowley."

"Evidence was then led from Mr Boyle, a private investigator who made the video of observations of the pursuer shopping in the centre of Dundee. No video was available of that, albeit, Mr Boyle stated a video had been taken of some parts of his observations."

It is our distinct impression from our reading of the parts of the transcript of the evidence to which we were referred that the significance (if any) of the "ten minute gap" and the "un-illustrated evidence" now underscored on appeal was not the subject of any major focus at the proof, or in the submissions to the sheriff. The sheriff correctly notes that although at least some of what had been observed by Mr Boyle had been captured on video tape, that video tape footage had not been included in the footage chosen to be lodged by the defenders. Further, it is clear that material parts of the "un-illustrated" evidence of Mr Boyle were not put to the pursuer in the course of her extremely lengthy cross-examination by counsel for the defenders. Nor was any of Mr Boyle's testimony on these matters put to her husband, who was obviously present in Dundee with his wife on the occasion in question. Nor indeed was Mr Boyle's "un-illustrated" evidence put in clear or specific terms to the orthopaedic witnesses whose views were sought on the video footage actually produced. In these circumstances we are satisfied that in the context of the proceedings before him the sheriff cannot be said to have ignored the evidence of Mr Boyle to any extent sufficient to enable us to interfere with his assessment of the pursuer's credibility. As already indicated, the sheriff's basis for accepting the credibility of the pursuer rightly extended over a wider examination and critique of the whole evidence. In our view, and notwithstanding other minor criticism of the pursuer's evidence, we are satisfied that the sheriff had a proper basis for his conclusions in rejecting the challenge to the pursuer's credibility respecting her continuing physical disability.

"Whilst the medical opinion varied on the impact of her [the pursuer's] previous history of back pain, I accepted her evidence that her previous history apart from the road traffic accident had not prevented her carrying out her normal household duties nor of maintaining her employment. Her husband and her son spoke eloquently of the fact that before the accident she had been a very fastidious housewife and had carried out all the household duties including heavy duties without recourse to assistance from her sons or her husband. Indeed, as her husband had worked offshore she was accustomed to doing the gardening work, the mowing of the lawn and other heavy chores which would normally have been carried out by her husband.

Whatever may have been her previous back problems, I accepted the evidence that for the 6 years before the accident she had been able not only to carry out her household duties but also to carry out her duties on behalf of the defenders. Indeed, her annual assessments No.5/4/10 of process paint a glowing picture of a highly regarded and trustworthy employee. I took that evidence into account and took into consideration that the defenders' experts had limited experience of actual examination of the pursuer. Professor Breusch fairly conceded that all he had been asked for was a 'desktop opinion' based on his examination of the records and had never seen nor examined the pursuer. Professor Rowley had examined the pursuer on one occasion and produced his report but had not examined the pursuer on the second occasion he had seen her. Both Mr Wardlaw and Mr Knight had examined the pursuer (indeed Mr Knight's examination had taken place after the proof had actually commenced). Taking all these factors into account, I accepted the pursuer's evidence that the pain she has experienced since the accident is very different and more acute than any pain prior to the accident and I therefore prefer the medical evidence of Mr Wardlaw and Mr Knight and consequently conclude that the accident is responsible for the pain which she has suffered since 2000."