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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Riddell v Leisure Link Electronic Entertainment Ltd [2008] ScotCS CSIH_16 (15 February 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_16.html
Cite as: [2008] CSIH 16, [2008] ScotCS CSIH_16

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord President

Lord Macfadyen

Lord Eassie

 

 

 

 

 

 

[2008] CSIH16

 

 

OPINION OF THE COURT

 

delivered by LORD EASSIE

 

in

 

APPEAL

 

in the cause

 

JUNE RIDDELL

Pursuer and Respondent;

 

against

 

LEISURE LINK ELECTRONIC ENTERTAINMENT LIMITED

Defenders and Appellants:

 

_______

 

 

 

Act: Bell, Q.C., Pilkington; Lefevre Litigation (Pursuer and Respondent)

Alt: Bowie; Simpson & Marwick, W.S. (Defenders and Appellants)

 

 

15 February 2008

 

Introduction
[1] In this action of reparation for personal injury in consequence of an accident which took place on 15 May 2000 the sheriff, following proof, found in favour of the pursuer and respondent and granted decree against the defenders and appellants, the pursuer's employers at the time of the accident, for payment of a particular sum by way of damages.

[2] Put briefly, the circumstances of the accident as found by the sheriff were that the pursuer, who had since 1994 been employed by the defenders to collect money from gaming machines owned by defenders and located in public houses and clubs in the Aberdeen area, suffered injury to her back when moving one such machine in order to get access to the coin box. She felt severe pain in her lower back and leg and found herself unable to move. Summoned by a customer, the manager of the public house in which the machine was located came to the pursuer's assistance and noted her evident distress. An ambulance was called and the pursuer was taken to the Aberdeen Royal Infirmary.

[3] The defenders denied liability, disputing the pursuer's account on the basis of a different account recorded by an employee of the defenders in an accident report form. At the proof it emerged that the author of the report had not interviewed the pursuer or any witness to the accident and had no proper basis for what he had recorded. The sheriff readily accepted the pursuer's account of the accident and its surrounding circumstances as truthful and reliable. In this appeal the appellant defenders no longer challenge the sheriff's findings on liability, or his refusal to find the pursuer to have been contributorily negligent. The appeal, as now presented, relates to the approach of the sheriff to the evidence relating to the nature and extent of the injury suffered by the pursuer as a result of the accident.

[4] Putting matters shortly at this introductory stage, following initial treatment at the Aberdeen Royal Infirmary the pursuer attended at her general medical practitioner where she reported leg and back pain and was prescribed pain killers. She was issued with, and used, a neck collar for approximately four weeks. She received spinal physiotherapy and radiological investigation, including an MRI scan. She received facet joint injections which provided an immediate but short-lived improvement. The sheriff found that she hoped for an early return to work and in fact she did so return on 17 July 2000 when she resumed light duties, being assisted by her elder son who completed the manual tasks of emptying out the machines while the pursuer did the paperwork. However, the pursuer found herself unable to continue working. She ceased work on 23 October 2000 and since then has not returned to employment.

[5] The foregoing summary stems from the undisputed parts of the sheriff's findings in fact contained in finding 10 and the opening sentences of finding 11. In finding in fact 11 the sheriff then goes on to find:

"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.

[6] As respects the first of these aspects - the extent to which the pursuer suffers from back pain - the credibility of the pursuer was sharply challenged by the defenders in their pleadings. They averred inter alia:

"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.

[7] Additionally - as respects the second aspect - it was contended by counsel for the appellant defenders that if the pursuer did have continuing back problems after an initial period of 12 to 18 months, the sheriff erred in holding it established that such continuing back problems were caused by the accident, rather than the manifestation of a degree of degeneration in the condition of the pursuer's spine.

[8] Towards the close of his submissions counsel for the defenders tendered three different versions of the alterations which he proposed the court should make to the sheriff's findings in fact and the damages awarded. The first of these versions proceeded on the basis that the defenders were successful in their contention that no reasonable sheriff could have found the pursuer to be a credible witness as respects her continuing disability. The second proceeded on the basis that, as respects any continuing or chronic back problem, the defenders' submissions on causation were successful. The third version was intended to reflect a submission, not properly foreshadowed in the grounds of appeal, directed to the multiplier applied by the sheriff in the award of future wage loss. We shall term the three issues reflected by these three proposed amendments as (i) "the credibility issue", (ii) "the causation issue" and (iii) "the multiplier issue" respectively.

 

The credibility issue
[9]
Central to the defenders' argument on the first branch of the appeal, namely the credibility of the pursuer in the respects aforementioned, is the surveillance video taken on 1 August 2005 and the evidence of the private investigator, a Mr Boyle, about what he saw and did on that day. The video was played to the court. What it depicts is described by the sheriff in his Note. For present purposes it is sufficient to say that the opening footage shows the pursuer and her husband arriving by car at Ninewells Hospital in Dundee shortly after 1400 hours on the day in question after their journey from Aberdeen. It shows them walking (with their backs to the camera) from the car towards the hospital building. They appear to be walking slowly. The pursuer's husband is holding her arm. The couple sit on a bench in the sunshine for a while before entering the hospital (seemingly waiting until the approach of the time of their appointment). The remainder of the footage is taken later in the afternoon, at about 1700 hours, and shows inter alia the pursuer and her husband walking along the banks of the Tay from the town centre to the Tay Railway Bridge and then returning to the town centre. As respects the latter footage the sheriff comments in the Note to his interlocutor (Appeal Print page 58) as follows:

"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.

[10] In her evidence the pursuer did not dispute that her condition had altered between arrival at the hospital and later that afternoon. The sheriff conveniently summarises her evidence on this as follows:

"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)

[11] All of the four orthopaedic surgeons who gave evidence had the opportunity of viewing the video tape. Professor Rowley - who in fact did not physically examine the pursuer on her attendance at Ninewells on 1 August 2005 despite her having been the subject of a convocation to examination by him on that date - expressed the view in a report in September 2005 that it was "difficult to conclude other than this lady is deliberately painting to me a picture that is different to how she is. The alternative explanation is that the good spell came on dramatically as she left my office. This would be difficult to sustain. I can only conclude that this lady has a level of claim disability that is not commensurate with how she behaves when she feels she is not being observed". Professor Breusch - who at no point examined or interviewed the pursuer - indicated in response to a question whether Professor Rowley's report would tie in with what he might have written on seeing the video that it would do so roughly. On the other hand, there was evidence respecting the video from the experts adduced on behalf of the pursuer. Mr Wardlaw took a contrary view to those of the defenders' witnesses. He did not consider that the video demonstrated malingering or exaggeration. Diazepam was a muscle relaxant and what was seen on the video was explicable. Mr Knight also expressed his disagreement with Professor Rowley's view that what was shown was not just a natural variation in the condition from hour to hour but was deliberately fabricated. His opinion was that the pursuer had significant continuing pain that was not deliberately fabricated.

[12] In addition to the video tape, there was also evidence from Mr Boyle, who had followed the pursuer and her husband to the centre of Dundee and spoke to their leaving the car and visiting a shopping centre during which activity the pursuer - according to Mr Boyle - appeared to walk normally. Video footage taken by Mr Boyle of the pursuer at this time was not however included in the video footage lodged as a production on behalf of the defenders.

[13] Counsel for the defenders and appellants submitted, in summary, that having regard to what was recorded in the surveillance video and the evidence of Mr Boyle, there was only one possible outcome. No sheriff could reasonably have concluded that the pursuer was a credible witness as respects the continuing extent of her disability. The sheriff ought to have preferred the defenders' medical witnesses and no proper reason had been given by the sheriff for not accepting the conclusions which they drew, namely conclusions to the effect that the pursuer was deliberately fabricating or exaggerating her symptoms when presenting for medical examination. Adverting to the testimony of Mr Wardlaw and Mr Knight, counsel submitted that part of the reasoning underlying their thinking that the video was yet consistent with the pursuer's complaints was that the pursuer was likely to be anxious about her examination by Professor Rowley and be relieved and relaxed after it, which, with the effects of the diazepam would enable her to walk more freely. But, said counsel, in her evidence the pursuer had not testified to having been anxious. She had said that she was angry over what had happened, having had to make a journey from Aberdeen; having had to wait over half an hour to see Professor Rowley; and then only to find that he did not wish to examine her. Further, it was submitted by counsel for the defenders and appellants, according to Professor Rowley the diazepam would have had no improving effect. Counsel also placed particular stress on the evidence of Mr Boyle and his observations of the pursuer immediately on her arrival in the city centre of Dundee after the short journey there from the hospital. Such a marked change in the pursuer's apparent mobility demonstrated that the pursuer should be seen as incredible and exaggerating her condition to medical advisers.

[14] In our view the criticisms advanced by counsel of the sheriff's approach to this aspect of this case are unsound.

[15] We take first the video evidence. The sheriff, having summarised the content of the video, and the evidence of the pursuer thereanent as quoted above, continues thereafter in his Note by summarising the views of the orthopaedic experts as follows:-

"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."

[16] But that is not all, for in the succeeding four paragraphs of his Note the sheriff says this:

"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."

[17] The approach of the sheriff to the conflicting views of the orthopaedic surgeon witnesses respecting the pursuer's credibility was therefore to rely first on his own assessment of the pursuer as a person, having had the opportunity of observing her in the witness box for some five days. (In that regard it is relevant to note that, as was submitted by counsel for the pursuer and respondent, the pursuer's account of the accident was challenged by the defenders as untruthful but was demonstrated by other witnesses to be indeed truthful). Secondly, the sheriff invokes the views of Dr Hendry and the evidence in the medical records of a repeated desire to return to work. He also takes into account, importantly, the evidence of the pursuer's husband and son as to her continuing disability. Their evidence, and indeed that of Dr Hendry, in this respect was not challenged in cross-examination. It is also to be noted that the evidence of Dr Knight was not cross-examined in any respect at all. In our opinion the approach which the sheriff adopted was legitimate and proper and rationally justified his decision to accept the pursuer as credible in respect of the matters in issue under this branch of the appellants' argument, notwithstanding what was shown on the video.

[18] As already mentioned, counsel for the appellant defenders placed emphasis on what was referred to in the discussion before us as the "un-illustrated" evidence of the private investigator, Mr Boyle. From the viewpoint of counsel for the defenders, the particular significance of this evidence was the claimed disparity in the pursuer's state of mobility on leaving the hospital and arriving in the city centre some short time later. Counsel referred to this as the "ten minute gap" the brevity of which undermined the view that the later video footage could be explained by any relaxing effect of the diazepam taken by the pursuer. His submission was that the sheriff had failed to pay any attention to this evidence.

[19] As counsel for the pursuer and respondent pointed out in his response, it is not correct to say that the sheriff overlooked the "un-illustrated" evidence of Mr Boyle. In his Note the sheriff says (page 58 of the Appeal Print):

"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.

[20] Counsel for the defenders also advanced some other criticisms of the pursuer's evidence in the shape of what he categorised as inconsistencies. He pointed out that she was noted by Mr Wardlaw in his initial report as having said that she had not had problems with her back prior to the accident and had lived a full and active life whereas in fact she had suffered incidents of back pain in 1986, 1990 and, following a road traffic accident, in 1993. He also submitted that whereas Professor Rowley had recorded the pursuer as having told him that she had "good days and bad days", in cross-examination she denied having said so or was unwilling to give a straight answer, as it was put by counsel.

[21] In our view there is no substance in these points. The sheriff found that the pursuer had had no significant back problem subsequent to the resolution of the injury sustained in the road traffic accident and that during the ensuing six years prior to the accident with the gaming machine she had indeed lived a full and active life. Given that fact, on at least one understandable interpretation of what might be meant by a question as to the existence of back problems prior to the accident, it was not untruthful for the pursuer to say that she did not have such problems and had led such a life. As to the second point, a fuller perusal of the transcript reveals that the pursuer did not deny making some similar phrase (page 178) and she did endeavour to explain her position in the light of the questions from the cross-examiner, the clarity of which questions was not always ideal.

[22] For these reasons we are unable to accept the submissions advanced in the first branch of the argument for the appellant defenders.

 

The Causation issue
[23]
The context for the submissions of counsel for the defenders and appellants on this branch of the appeal is, put shortly, that according to the pursuer's medical records, the pursuer had attended at her general medical practitioner respecting complaints of back pain on a number of occasions between 1986 and the accident with the gaming machine in May 2000. As the sheriff notes, the majority of those attendances were in respect of the consequences of the road traffic accident of which the pursuer was a victim in 1993. But during the six years preceding the index accident in May 2000 there were no such attendances; and the pursuer had not been absent from work on account of illness, including back pain.

[24] In that context, the position adopted by the defenders' expert, Professor Rowley, appears, in what we hope is not too crude a summary, to have been that in the light of her medical records the pursuer suffered - as does a large number of the population of similar age - from degenerative deterioration of the condition of the spine which will commonly be asymptomatic but can obviously give rise to the effective spontaneous manifestation of symptoms. The events of 15 May 2000 leading to the pursuer's being taken to the Aberdeen Royal Infirmary, which Professor Rowley described as a "silly manoeuvre" , would, or at least could, produce back pain as it clearly did in this case. But, according to the Professor, in most cases the pain produced by such a manoeuvre would resolve within twelve or at most eighteen months. Ergo whatever pain and disability the pursuer may have suffered after that twelve to eighteen month period which the Professor would allow were to be attributed to the intervention or resurgence of the consequences of those non-traumatically produced degenerative changes. The thesis of Professor Rowley also involved the consideration that the pursuer had not been wholly free of any back pain during the six years preceding the accident, since there was some evidence that the pursuer had occasionally suffered very minor episodes for which she had taken ordinary, non-prescription pain relief medicaments. Mr Reusch essentially associated himself with this approach without making any material addition to it.

[25] The position adopted by Mr Wardlaw and Mr Knight- again in what we hope is not too crude a summary - appears to have been that in most cases persons with the sort of degenerative changes suggested by the pursuer's medical history (which were pretty run-of-the-mill for persons of her age) would recover from the traumatic effect of an accident such as that suffered by the pursuer within some months. However, a not insignificant minority did not make such a recovery and, for that minority, the pain and disability were thus chronic. The pursuer was one of such minority; and to that extent the continuing chronic disability was attributable to the accident.

[26] The sheriff preferred the views of Mr Wardlaw and Mr Knight - the latter of whom was not cross-examined on this matter. Counsel for the appellant defenders sought to impugn this preference on the basis that the sheriff had failed to analyse and test the expert evidence and provide proper reasons for discounting the one expert view in favour of the other express view. Reference was made to Dingley v Chief Constable of Strathclyde 2000 SC (HL) 77 which it was submitted set out that requirement. It was submitted that the sheriff had failed to satisfy that requirement.

[27] We turn therefore to what the sheriff has said on this issue. The first matter which he considered was the whole evidence relating to the pursuer's pre-existing medical condition (page 55ff of the Appeal Print). He reviewed the medical records and the differing weight given to aspects of them by the experts and then (page 56 of the Appeal Print) said this:

"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."

[28] Whatever underlying medical discussion may exist regarding back pain causation issues, in terms of legal causation issues, we are satisfied that the sheriff's approach to the attribution of responsibility for the pursuer's ongoing responsibility to the incident in question is not flawed. The sheriff has identified a continuing injury or disability flowing from the accident on 15 May 2000 and was well entitled to take the view, having regard to the evidence of Mr Wardlaw and Mr Knight, that the pursuer's ongoing chronic disability is in legal terms causally attributable to the accident. It may be that, absent the degenerative processes, the initial injury would not have occurred, or at least it might not have proven to be chronic, but the negligent employer (or other actor) has to accept the existence of such degenerative processes and the risk that, if through such negligence, the degenerative condition is transformed into actual disability he will be responsible for the consequences of that disability, including the minority instance in which the resulting, activated disability proves to be chronic. We therefore reject the second limb of the argument for the defenders and appellants.

 

The multiplier issue
[29]
The final submission by counsel for the defenders and appellants was that in his selection of the multiplier for future wage loss the sheriff had ignored the possibility that by reason of the degenerative changes in the pursuer's back her ability to pursue employment in the future would be impeded by those natural degenerative changes. This submission is not the subject of any notice in the grounds of appeal for the defenders and appellants and despite the efforts of counsel for the defenders to present it as a causation argument we are not so persuaded. But that apart, it is evident that the sheriff was presented by both parties with an agreed multiplier for the future wage loss and, in particular, he was not asked to make any discount in respect of the possibility that the pursuer would have been unable to continue employment because of continuing degenerative changes.

[30] In these circumstances we are not prepared to entertain this additional submission.

 

Decision
[31]
For the foregoing reasons we refuse the appeal with the result that the interlocutor of the sheriff of 12 September 2006 stands.


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