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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Johnstone v. William Morton Ltd [2009] ScotCS CSOH_173 (18 December 2009)
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Cite as: [2009] ScotCS CSOH_173, [2009] CSOH 173

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OUTER HOUSE, COURT OF SESSION

[2009] CSOH NUMBER173

PD1499/07

OPINION OF MORAG WISE Q.C.

(sitting as temporary judge)

in the cause

EDWARD JOHNSTONE

PursuerPursuer;

against

WILLIAM MORTON LIMITED

DefendersDefenders:

______________

ActPursuer: Party

AltDefenders: G. Clarke QC; HBM Sayers

18 December 2009

Introduction

[1] In this action the pursuerpursuer, who was born on 10 November 1947, seeks damages in respect of personal injuries which he suffered in a road accident on 17 August 2004. Liability has been admitted by the defendersdefenders, as has the fact that the pursuerpursuer did sustain injury in the accident. The proof before me was accordingly concerned only with quantification of damages. While the pursuerpursuer had initially been represented in these proceedings, he conducted the proof as a party litigant. The defendersdefenders were represented by senior counsel.

[2] In addition to the pursuerpursuer, evidence was led in his case form from his wife Mrs Elaine Johnstone ( from whom he is separated but remains on good terms), Mr Michael Foxworthy, ( cConsultant orthopaedic Orthopaedic surgeonSurgeon), Dr Tom Brown ( Consultant psychiatristPsychiatrist) and Ms Teresa McLaughlin ( the pursuerpursuer's former business partner). In the defendersdefenders case evidence was taken from Mr Michael McMaster ( cConsultant orthopaedic Orthopaedic surgeonSurgeon) and David Cochran ( litigation paralegal with HBM Sayers).

Circumstances of the accident

[3] Notwithstanding the admission of liability, some evidence was led about the circumstances of the accident and its aftermath. Mr Johnstone gave evidence and was allowed to lodge a witness statement (No 26 of process) which he spoke to as his examination in chief. In that document and in his evidence the pursuerpursuer explained that on the date of the accident at about 2.30 pm he was driving his Ford Mondeo motor vehicle on the A737 Ayr Road in Irvine. His car was stationary at a junction where he was waiting to execute a right hand turn into Heatherhouse Road. He had signalled to turn when suddenly a Mercedes lorry, being driven by a Mr McFadden in the course of his employment with the defendersdefenders, collided into the back of his car. Mr Johnstone was taken to hospital where x-rays were taken of his neck and right shoulder. These showed no bone injury and he was allowed home later that day.

[4] In his evidence, Mr Johnstone narrated that at the time of the accident he "...seemed to black out but don't know for how long." He also recorded "I awoke feeling sore around the back of the neck...". The ambulance service patient report form relative to the accident (contained in the records of Crosshouse Hospital, No 64 6/4 of process) gives no indication that the pursuerpursuer was rendered unconscious by the accident or that there was any suspicion of head injury. Under cross-examination, Mr Johnstone said that he was not asked by the paramedics who attended the scene whether or not he had been rendered unconscious. He accepted that he had not raised the matter with anyone. In any event, the information recorded by the paramedics who attended in the patient report form in relation to the history of the accident narrates as follows:

"stationary driver of car. Van skidded into back of car. Queue of traffic - doesn't think very fast. Head thrown back - pain in rear of neck. Seemed to be in spasm. Also pain in R shoulder approx 6 months ago operation in this shoulder."

[5] When the pursuerpursuer was tested using the Glasgow Comma Scale he was found to be fully alert.

[6] Within 24 hours of the accident the Pursuer pursuer checked an internet site with a view to gathering material for a damages claim. He started to keep a detailed record for the purposes of that claim. A typed version of what he recorded is lodged at 6/10/96 of Process.

The pursuerpursuer's pre-existing medical conditions
[7] There was considerable reference in the evidence to the pursuerpursuer's GP medical records lodged at 6/2 of process. Those confirmed that by December 2002, Mr Johnstone had bilateral subacromial impingement and large rotator cuff tears. In a letter of
20 December 2002 from Mr G.R Tait, Consultant Orthopaedic Surgeon to Dr Martin, the pursuerpursuer's General Practitioner, on 20 December 2002, Mr Tait noted that "both shoulders are painful intermittently but he tells me that his symptoms are a bit better today than they were a year ago." Mr Tait concluded that he would be unable to repair Mr Johnstone's rotator cuffs but that decompression may improve his pain. He concluded "I am going to do his shoulders as a day case, one at a time" ( see 6/2/73). The first decompression surgery was duly performed on Mr Johnstone and on 8 March 2004 a note from Mr Tait's orthopaedic clinic ( No 6/2/71 of Process) records that the pursuerpursuer was happy with the result from his right shoulder but that he did not really want anything done with his left shoulder at that time.

[8] So far as any psychological or psychiatric difficulties are concerned, there was a considerable amount of evidence about an entry in the GP records dated 5 March 2004. On that date Dr Martin had noted "temper outbursts...increasing freq of uncontrollable temper outbursts. ref anger management". Dr Martin had subsequently clarified in a letter that although he was considering a referral for anger management, no such referral was actually made. Mr Johnstone and his wife Elaine Johnstone, from whom he is separated but maintains a close relationship, both disputed that there had been a report of uncontrollable temper outbursts to Dr Martin that day. They gave effectively identical evidence that what Mr Johnstone had complained of (in his wife's presence) to the general practitioner was that he was "crabbit", particularly with his daughter, of whom he has been the main carer sicnesince he and his wife separated about seven years ago. That apart, there was no suggestion that Mr Johnstone suffered from a depressive disorder until quite some time after the accident. The question arose as to whether Mr Johnstone would have developed that depressive disorder regardless of the accident, a matter to which I will return.

The pursuerpursuer's work history prior to the accident

[9] Mr Johnstone earned an income from playing piano and subsequently keyboards, at least part time, from the late 1960s. He did so on a self‑employed basis for more than 20 years. Often he would work with a band or in a duo. He would tend to undertake the paperwork for the contractual arrangements with any club or other venue and so to some extent he was involved in "managing" those acts. There were a number of clubs in which a Mr Johnstone appeared regularly. He played at one local club, the Blacklands Bowling Club, for almost 30 years. From about the late 1990s the pursuerpursuer supplemented his self-employed earnings with Working Family Tax Credit. At that time he was involved in a business hiring "bouncy castles" but he had given that up prior to 2002. He received tax credits in respect of his guardianship of his daughter and in a personal capacity. No. 6/10 of process is an example of an earlier working family tax credit application by Mr Johnstone prior to him giving up the bouncy castle hire business.

[10] Between about October 2001 and 27 July 2004, the pursuerpursuer worked in a duo with Theresa McLauglin who was known as "Teri". By this time Mr Johnstone was estranged from his wife and had the care of his young daughter. Teri was also a single parent. Mr Johnstone said that they could have taken on more work but due to their respective personal circumstances were content with what they had. The earnings from this part‑time work were variable, 6/10/46, 6/10/50, 6/10/51 and 6/10/52 are a summary of those earnings prepared by Mr Johnstone, together with diary entries for the various bookings. His earnings with Allure Duo varied from 3,335 or thereabouts during 2002, 4,400 during 2003 and about 1,300 during 2004 prior to July of that year. The Working Tax Credit was between 5,200 and 5,700 per annum for the first two of those of years. In his typed statement No 26 of process, the pursuerpursuer stated that he informed Teri that he had decided to leave their band and that as a result she had bought the amplification equipment from him in late July 2004. She was to join a new partner, Kevin. Mr Johnstone's position was that "I had lined up another band, a Wings tribute group called 'The Get Back Band' to work with. They had their own PA system." (No 26 of process page 22). Also in the summer of 2004 Mr Johnstone arranged to sell his house, the anticipated date of completion of the sale being 30 August 2004. He was on holiday in the USA for the first two weeks of August returning on 15 August 2004. Under cross examination Mr Johnstone said that his leaving the duo had been arranged for some time before July 2004. He agreed that the accident had not deprived him of earnings from that source. Mrs Johnstone said in evidcneevidence that after the termination of the partnership with Ms McLaughlin Mr Johnstone "... had two or three different options" but she did not explain what these were thought by her to be or why they had not been pursued.

[11] In these circumstances, it is clear that by the date of the accident the pursuerpursuer was no longer involved with the band Allure Duo. Importantly, he had written to various people, who were responsible for the venues at which the band performed, advising them that he had left Allure Duo but that Teri would continue to perform for them - see 6/10/30 of process. Under cross-examination the pursuerpursuer accepted that such letters indicated that he had left Allure Duo due to work relocation, although he maintained that this was just "a nice way of explaining and not to be taken literally." In any event, Mr Johnstone's clear evidence was that he passed all of the club bookings, including that for the Blacklands Bowling Club on to Teri McLauglin and her new partner Kevin and said that he wished them well. The final accounts for Allure Duo were prepared by the pursuerpursuer and dated 22 July 2004.

[12] The claim by the pursuerpursuer that his intention had been to join a Wings tribute band was scrutinized in evidence. Mr Johnstone accepted under cross-examination that he could not say categorically that he had told his previous solicitors of those intentions. He effectively accepted that he may not have mentioned "The Get Back Band" at all until his examination in chief on the first day of the proof. When asked for more details, he said that a man was putting the band together and that "he had two other members and me and him wanted others." In his written evidence, (No.26 of process, page 22) Mr Johnstone (No 26 of process at page 22) it states that after the road traffic accident on 17 August 2004 he informed the tribute band that he would not now be joining them.

[13] In the defenderdefender's case, evidence was led from a David Cochran who works as a full-time litigation paralegal for HBM Sayers. He confirmed that in light of the evidence Mr Johnstone had given, he had decided to make enquiries in relation to The Get Back Band. He contacted the manger of the band, and Ian Armour, and asked him whether he could remember the pursuerpursuer auditioning for the band. Mr Armour apparently told Mr Cochran that about 5 years ago the band was holding auditions for a keyboard player. He recalled Mr Johnstone, although could not say categorically whether or not he had attended for an audition. About eight people attended for the audition. The position was secured by a "Fox Amoure" who was apparently the best player and younger than the other candidates, thus fitting in better with the image of the band. Mr Johnstone chose not to cross-examine Mr Cochran. He said in terms that nothing in Mr Cochran's evidence did not "sound right" to him. In these circumstances I conclude that by the date of the accident, Mr Johnstone had ceased working with Allure Duo, had told the various clubs and venues which he had an association for many years that he would no longer be performing and that he had no work as a part‑time musician. In order to qualify for Working Families Tax Credit, he required to work for minimum of 16 hours per week, that being the prerequisite for those over 55 years of age - see 6/10/21, a paper by John Williams Barrister, Crown Office Chambers. There was no evidence to suggest that Mr Johnstone would have continued to qualify for Working Families Tax Credit had the accident not occurred. Other than the interest in The Get Back Band, there was no clear evidence at all from Mr Johnstone about what work he would have undertaken but for the accident.

The nature and extent of the injuries sustained in the road traffic accident of 17 August 2004

[14] Evidence was led by Mr Johnstone from Mr Michael Foxworthy, Consultant Orthopaedic Surgeon and from Dr Tom Brown, Consultant Psychiatrist. Mr Michael McMaster, Consultant Orthopaedic surgeon Surgeon gave evidence in the DefenderDefender's case. In the event, and despite a vigorous and lengthy cross examination of McMaster by the Pursuerpursuer, there was relatively little between them the two surgeons in terms of opinion. No psychiatric opinion evidence was led for the Defendersdefenders.

[15] Mr Michael Foxworthy MBChB DipBioeng.FRCS Orth has been a Consultant Orthopaedic surgeon for 12 years. He prepared a total of five reports for the assistance of the court to which he spoke in evidence. These comprise Nos 6/1, 6/5, 6/6, 6/7 and 6/11. In summary his view was that Mr Johnstone had sustained a true whiplash type of cervical spine paravertebral muscular strain as a result of the accident in August 2007. He was appropriately treated with painkillers and anti-inflammatory medication. He suffered referred pain ( from the neck injury) to both shoulders. He underwent physiotherapy. By the time he was seen by Mr Foxworthy for the second time in April 2006 Mr Foxworthy found that Mr Johnstone's neck had improved and that he had now "...essentially recovered apart from occasional twinges". He thought it likely that such minor symptoms would resolve completely by August 2006.

In about November 2007 Mr Foxworthy was asked to prepare a Supplementary Report in relation to the issue of the "pins and needles" sensation in the hands and arms and the triggering of his left middle finger that M Johnstone had described to his GP shortly after the accident. Mr Foxworthy expressed the view that the altered feeling ("pins and needles") was directly attributable to the accident on 17 August 2004. He considered that the temporal relationship between the date of the accident and the development of those symptoms was an important factor in that. However, he was of the opinion that the triggering of the middle finger was an unrelated condition.

There was considerable discussion in his evidence about the condition known as carpal tunnel syndrome. Mr Foxworthy explained that carpal tunnel syndrome is a compression of the median nerve at the wrist. The symptoms tend to be a pain in the thumb side of the wrist particularly at night time. Feelings of weakness and "pins and needles" are also associated with the condition. In examination in chief, Mr Foxworthy was quite clear that a neck injury of the type sustained by Mr Johnstone was not going to cause a wrist compression. However, he advised that it is common for those with whiplash injury to suffer altered feelings in the hands and arms. He explained that the opinion expressed in his report No 6/6 of Process amounted to no more than that. While Mr Johnstone's GP had, from late August 2004, raised the possibility of the symptoms being indicative of carpal tunnel syndrome, Mr Foxworthy was careful to draw the distinction between a patient presenting with elements of carpal tunnel while not being diagnosed as having that syndrome and one who had fulfilled all the diagnostic criteria for it. He said that he would not accept an entry in the GP records as a diagnosis, it was merely a suggested label when referral was being made to a suitable expert for diagnosis.

[16]

In mid October 2004, Mr Johnstone was seen at the hand clinic of Calum Macleod, Consultant Orthopaedic Surgeon, a colleague of Mr Foxworthy (at Crosshouse Hospital Kilmarnock) who specialises in upper limb problems. Mr Macleod reported to Dr Martin, the Pursuerpursuer's GP, that on examination he found Mr Johnstone's finger movements to be reasonably well maintained and that although he had tested positively on a Phalen's test, the Tinel's sign was negative ( No 6/2/79 of Process). Mr Foxworthy explained that the tests referred to in that letter were two of those used in the diagnosis of carpal tunnel syndrome. The Phalen's test is a clinical test with variable sensitivity, thus perhaps not so reliable. On the basis of one positive Phalen's test and a negative Tinel's sign, Mr Foxworhty would not conclude that a patient had carpal tunnel syndrome. No evidence was led of any other tests having been carried out on Mr Johnstone or of those carried out in October 2004 being subsequently repeated. There was some evidence of splints being applied to his hands but Mr Foxworthy did not consider that relevant to the issue of diagnosis. In summary, while Mr Foxworthy accepted that whiplash was a possible mechanism of wrist and arm pain, at no point did he express the view in his evidence that Mr Johnstone suffered from carpal tunnel syndrome caused by whiplash injury. If Mr Johnstone was found to have carpal tunnel syndrome the treatment would probably be minor surgery which would be done as a day case.

[17] Under cross examination Mr Foxworthy agreed that the medical records illustrated that by March 2004 Mr Tait had found that the state of the right and left rotator cuffs were probably beyond repair and that aim of the bilateral shoulder decompressions being suggested was primarily simply to alleviate pain. The effect of this pre accident problem would be a restricted range of movement in the shoulders. He confirmed that since the accident Mr Johnstone had undergone a successful operation on his left shoulder for this pre existing condition. The referred shoulder pain from which Mr Johnstone suffered after the accident was quite distinct from this ongoing condition. He Mr Foxworthy confirmed that all of the physical effects of the accident would have resolved within two years of 17 August 2004 and that any ongoing problems thereafter would not be attributable to the accident. He reiterated that he had not intended to suggest that either the pursuerpursuer's trigger finger or any suspected carpal tunnel syndrome had been casued caused by the accident. What was between him and Mr McMaster was really the length of the recovery period and whether the some altered sensation in the hands and wrists was attributable to the accident.

[18] Mr Michael McMaster MD FRCS, Consultant Orthopaedic and Spine Surgeon gave evidence for the DefendersDefenders. He saw the Pursuerpursuer on 12 October 2007 for an examination and report. His report is produced at No 7/2 of Process with a brief Supplementary Report being at No 7/3. He spoke to those reports. In summary, Mr McMaster found that the accident as described to him by Mr Johnstone was consistent with him having sustained a soft tissue strain to his neck aggravating the pre-existing degenerative arthritic changes and precipitating the onset of pain and protective muscle spasm. He recorded in his report that the pursuerpursuer developed discomfort in the hand " a few months after his accident" and concluded that the trigger finger and any carpal tunnel syndrome developed spontaneously and were not related to the accident. He considered that the Pursuerpursuer's accident related injury should have resolved within six months and that any ongoing pain and suffering thereafter was likely to be related to the pre existing shoulder condition. Mr McMaster had not seen the GP records when he prepared his reports. He was shown the entry in Dr Martin's records for 20 August 2004 ( No 6/2/26) where the pins and needles in both arms especially on waking is recorded. He expressed the view that such a report following an accident of this sort with a whiplash injury to the neck would be common. He explained that carpal tunnel syndrome tends to develop gradually and, like trigger finger, it is often associated with manual occupations. Some of the symptoms Mr Johnstone described, such as his fingers feeling "fat" were typical of someone with carpal tunnel syndrome.

[19] Mr Johnstone suffered a coronary thrombosis in February 2007. He told Mr McMaster that he could not work as a pianist because of his heart condition.

Mr McMaster was cross examined by Mr Johnstone for several hours over two diets of proof, sometimes on issues of little or no significance such as surveillance DVD's upon which the DefendersDefenders were placing no reliance. The exchanges between them became heated at times. Mr McMaster gave many of his responses in a particularly forceful manner. One of the main areas of contention was that Mr McMaster's report records that Mr Johnstone told him ".. that his neck symptoms settled approximately 6 months after the accident but he continued ot to have discomfort in both shoulders." Mr Johnstone disputed that he had made that statement and did everything he could to show that it was inconsistent with the views of both Mr Foxworthy and Mr Macleod, the latter having prepared a report ( 6/12) which was referred to during the proof but not spoken to by the author. When Mr McMaster remained adamant that he had recordced accurately what the Pursuerpursuer had told him, Mr Johnstone appeared to suggest that even if the report was accurate, he may have given Mr McMaster incorrect information, perhaps because he was recovering from heart surgery at the time.

[20] The Pursuerpursuer also cross examined Mr McMaster at length on the issue of what he understood to be a causal relationship between the accident and the onset of symptoms of carpal tunnel syndrome. Mr McMaster said in the clearest of terms that it was "impossible" for carpal tunnel syndrome to be caused by the accident in which the Pursuerpursuer was involved. He also considered that the altered sensation, the "pins and needles" was an unrelated problem.

[21] I should record for completeness that in the course of his cross examination of Mr McMaster the pursuerpursuer sought to place considerable reliance on a the report No.6/12 of process prepared by Mr Calum Macleod dated 12 June 2005 to assist Mr Johnstone in an insurance claim. Although Mr Macleod did not give evidence to speak to that report, it was lodged in process ( No 6/12) and put to Mr McMaster for comment. It is perhaps sufficient to note that the report was prepared from a review of the hospital records and not after a specific examination. It records all of Mr Johnstone's physical injuries whether attributable to the accident or not. It did not assist my determination of the issues.

[22] In addition to the issue of the extent of the physical injuries attributable to the accident evidence was, as indicated above, led in the Pursuerpursuer's case about a depressive disorder. Dr Tom Brown, BSC, MBchB, MPhil FRCP(E) FRCP has been a consultant Consultant psychiatrist Psychiatrist for 26 years. His present position is at the Western Infirmary in Glasgow. He saw Mr Johnstone on 7 January 2008 and prepared a report which is lodged at no 6/8 of Process and and to which he spoke to in evidence. He had had available to him a number of relevant documents, including the GP records when he prepared that report. He noted Dr Martin's entry of 5 March 2004, referred to earlier, in relation ot to Mr Johnstone's uncontrollable temper outbursts. He had interpreted the expression " ..ref anger management" in the notes as the GP having made such a referral. A As already indicated, a letter form from Dr Martin had subsequently clarified that while a referral had been considered, noen none had been made at that point. In his evidence, Dr Brown expressed the opinion that the Pursuerpursuer had emotional problems that predated the accident in 2004, that those problems may on one view have been exacerbated by the accident, but that the situation was complex. Mr Johnstone had suffered a number of life events, both prior to and since the accident, that had resulted in him now fulfilling the criteria for a depressive disorder ( DSM IV 296.21). Those events included the break up of his business relationship with Theresa McLaughlin, the breakdown of his marriage, the death of his brother (2007) and the chronic pain, primarily from his neck and shoulder neck pain.

[23] The Pursuerpursuer focused on the issue of the pre accident entry in the GP notes about anger management during his examination of Dr Brown. It was confirmed that the difference between anger management being considered and the referral being made was less important to Dr Brown than the emotional difficulties that had given rise to the issue being discussed with Dr Martin. Dr Brown noted also from the GP records that there was an isolated entry in 1993 referring to Mr Johnstone feeling "uptight". On 7 March 2007, more than three years after the accident the Purusrepursuer was first referred for counselling by his GP. The entry in the records for that date ( NONo 6/2/15 of Process) records " Anger Management Counselling- recurrence". Miss Brown's notes were put to Dr Brown who agreed that they record Mr Johnstone's problems with anger since the accident. However, Miss Brown also appeared to have noted other relevant incidents such as the brother's death, the marriage difficulties and the variety of physical health issues. Dr Brown's conclusion was these all of these factors were relevant to the Pursuerpursuer's mental health and that the diagnosis of depression was not attributable to any one factor.

[24] Under cross examination Dr Brown agreed with the proposition that Mr Johnstone's depression would probably have developed even if the accident in August 2004 had not occurred. That was apparently also the view of a Dr Rodger, psychiatrist, who did not give evidence but whose report ( No 7/1 of Process) was shown to Dr Brown for comment. However, Dr Brown did remark that, notwithstanding that the accident could not be said to have caused the subsequent depression, it could not be disregarded as an insignificant occurrence in looking at the picture of Mr Johnstone's mental health. The psychological factors that existed prior to the accident made the Pursuerpursuer vulnerable to depression. While itWhat could not be said was that it was the accident that tipped him over the threshold into depression it could not be ignored completely. Insofar as Pauline Brown had noted Mr Johnstone's fear of mortality, Dr Brown considered that his brother's death and his own heart disease were important contributing factors.

The Pursuerpursuer's attempts to prove loss of earnings

[25]

As indicated earlier in this Opinion I have concluded that the Pursuerpursuer was not working at the time of the accident, having parted company with Mrs McLaughlin, she and her new partner having taken over the club bookings that she and Mr Johnstone would have undertaken but for the termination of their partnership. In the absence of any acceptable evidence of there being work available to Mr Johnstone which he could have carried out but for the accident, the Pursuerpursuer has failed to prove any loss of earnings. However, an issue arose during the proof of the attempts made by the Pursuerpursuer to gather evidence to support a wage loss claim and I now turn to examine that.

[26] Theresa McLaughlin, who is 39 and a public health nurse within Ayrshire & Arran Health Trust gave evidence. There was some discussion about who would call her. Ultimately the Pursuerpursuer called her as a witness in his case. Ms McLaughlin said that on 24 August 2005 she and the Pursuerpursuer met in the Thistle Hotel, Irvine, at the instigation of the Pursuerpursuer. He had emailed her on 22 August 2005 asking to meet. She said that during the course of the meeting Mr Johnstone offered her money. He said he was going to claim compensation or insurance and that he would give her money if she said that they had stopped singing after the accident and because of his shoulder pain. She said that he asked for a list of gigs that she had done so that he could claim for them. Given the seriousness of the allegation being made against the pursuerpursuer who was conducting his own case, I advised him that if he wished to challenge the evidence being given he should do so in further questioning the witness. The Pursuerpursuer then put to Ms McLaughlin that what he had asked her to do was to verify any bookings they had had in the tax year 2004/2005, to which Ms McLaughlin responded " No- what you asked me to do was to say that we stopped singing because of the accident." She was very clear that what she was being asked to provide by way of documentation was a list of "gigs" that she and Mr Johnstome Johnstone would have done but for the accident. She also denied that there could be any misunderstanding about the matter. She recalled that Mr Johnstone had dressed in a shirt and tie for the meeting and had taken her for a meal to ask for her help. She thought at the time that it was a cheeky request. In answer to further questions from Mr Johnsotne Johnstone in re- eaxaminaitonexamination she confirmed the sum of money he had offered her had been about 1,000.

[27] Ms McLaughlin agreed that she had continued to have email contact with Mr Johnstone after the meeting in the Thistle Hotel. She had no strong moral condemnation of what had occurred, she reiterated that she thought it was cheeky but was prepared to move on and continue to maintain some sort of friendship with the Pursuerpursuer thereafter. She had sent him an email on 8 September 2009 in which she stated, "....been thinking about your offer and after due consideration have decided not to get involved" ( No 6/10/85 of Process) She did subsequently correspond with the pursuerpursuer about other matters and she and Mr Johnsotne Johnstone resumed their partnership at some point in 2006. They have not performed together since July 2007, when Ms McLaughlin cancelled a performance at short notice.

[28] Prior to Ms McLaughlin's evidence being given, Mr Johnstone had been cross examined on the issue of what he had asked of Ms McLaughlin in connection with the pursuit of his claim. When faced with a copy of the email he had sent to Ms McLaughlin on 22 August 2005 indicating that he had "...a little bugger of a dilemma" and wanted her assistance, he said that this was a reference to a request from his then solicitors to produce details of his earnings. His position was that he contacted Teri McLaughlin because she was the only one who had worked with him and that he simply wanted her to confirm that the details of the earnings from their performances were as recorded by him. Mr Johnstone was shown a letter of 16 August 2005 from his previous solicitors referring to the need to produce documentation to support a loss of earnings claim. He did not dispute that it was in that connection that he had arranged to see Ms McLaughlin. He said that if Ms McLaughlin was to give evidence that he had offered to pay her money for saying that he missed playing gigs because of the accident she would be lying. Insofar as he gave any explanation for her doing so, the pursuerpursuer seemed to indicate that she might be concerned about benefits that she was claiminga bursary she had obtained at the same time as singing with Allure Duo.

[29] I reject Mr Johnstone's evidence on this matter and prefer the evidence of Teresa McLaughlin. In answering a question by the pursuerpursuer that suggested that all she was being asked to do was corroborate his position on the bookings and earnings before and after the accident Ms McLaughlin said - "I would gladly have corroborated the gigs we had done before and any after, before we stopped playing. But that's not what you asked me to do. " It was clear form from that response that there was no misunderstanding involved at the Thistle Hotel meeting and I find that Mr Johnstone did offer Ms McLaughlin money in return for her confirming that but for the accident he would have continued ot to perform with her. She refused that offer in writing in the email of 8 September 2005 ( 6/10/85 of Process).

Credibility and Reliability

[30] My assessment of the credibility and reliability of the three lay witnesses ( the Pursuerpursuer, Mrs Johnstone and Ms McLaughlin) has had a significant bearing on the issues for determination in this case.

[31] I have no hesitation in finding that Ms McLaughlin was a credible witness whose evidence can be relied upon. Her account of the meeting in the Thistle Hotel was clear and convincing. Where she could not remember specific details such as a date or transport arrangements from the meeting she said so. Her reaction to the suggestion made to her by Mr Johnstone at that meeting seemed to me to be particularly plausible. She thought it cheeky, but not so reprehensible as to sever communication with him. Her attitude was very much that he could do as he wished but she would not play a part in it. No plausible convincing motivation for her fabricating evidence of the request made by Mr Johnstone at the Thistle Hotel Irvine was put forward and many of the details of the meeting were spoken to by both of them.

[32] Ms McLaughlin struck me as quite brutally honest when she was answering questions from the pursuerpursuer about the nature of her relationship with Mr Johnstonehim. She had not regarded him as a close friend, but rather as someone who had assisted her in her part time work as a singer and who she was content to be with in that context. She relpiedreplied to his questions about their relation ship by saying bluntly that if they hadn't been "musically connected" they would not have been friends. She had been content to leave the loading and unpacking of gear for a gig to the pursuerpursuer, who had regularly transported her to and from a club. She was a demonstrative person and her correspondence with Mr Johnstone was on the face of it in very warm terms. But he meant little to her outwith the context of work. She did not display any of the bitterness towards him that Mr Johnstone subsequently suggested was part of her motivation in giving the evidence that she did. She is a professional person with no apparent reason to fabricate the details of the request made of her by the pursuerpursuer.

[33] In contrast, I find it difficult to place any reliance on the evidence of Mrs Elaine Johnstone. I agree with the submission made by Mr Clarke that some of her answers seemed quite contrived and in passages echoed precisely the sentiments made and expressions used by the Pursuerpursuer. For example when asked by the pursuerpursuer which of his injuries had caused him most concern she replied, " Your neck was still painful but it was your hands, clawing and they felt fat." The reference to his hands feeling "fat" had been used by the pursuerpursuer in his evidence but there is no record of that having been reported to his GP. In relation to the issue of whether Mr Johnstone exhibited uncontrollable temper outbursts prior to the accident, Mrs Johnstone used the expression " crabbit" to describe what the problem had been. Indeed, when her evidence resumed after a break in which Mr Foxworthy's evidence was taken, she used the word " crabbit" twice and " crabbitness" once in the course of her first three of four answers. While the Scots word " crabbit" is a well known term used to describe a someone who is tetchy or irritable disposition, it seems to me to be highly unlikely that Mrs Johnstone would, quite independently of her husband, use it to describe a state recorded by a doctor as an increasing frequency of uncontrollable temper outbursts, something far more serious than irritability.

[34] The manner in which Mrs Johnstone gave her evidence also concerned me. On some occasions her answers did not appear to be spontaneous, but rather stilted. On other occasions she would give information on issues that went to the substance of the severity or otherwise of Mr Johnstone's injuries very quickly and without any pause for recollection, as if the events had occurred much more recently than was the case. Also, on the second day of her evidence she gave very detailed evidence about the circumstances of the accident. She referred to a passer by having told her that Mr Johnstone had regained consciousness before he left for the hospital, again something that seemed to lend support for the Pursuerpursuer's version of events but which did not sit well with the medical records.

[35]

Turning to the Pursuerpursuer himself, there are a number of respects in which his evidence was inconsistent either with the credible evidence of others or with his own earlier position. For example, while he cross examined Mr McMaster at some length over the issue of whether or not he had reported to Mr McMaster that his neck pain had effectively resolved within six months of the accident, claiming that he had said no such thing, he subsequently put it to Mr McMaster that he had given that report but it was wrong. He said " If I hold my hands up and say that I was wrong to say that, would you accept that?". The Pursuerpursuer had drawn specific attention in his evidence to the "diary" that he had kept since reading on the internet that this might be of assistance to his claim. It is noteworthy in this context that the "diary" ( 6/10/96 at p 24) records for Monday 7 March 2005 " The neck is now almost back to normal...." Mr Johnstone was very quick to try to attribute all of his physical injuries and psychological condition to the accident in August 2004 even where there was a record that suggested the contrary position. A useful example of this was his attitude to the entry in the GP records to his having exhibited uncontrollable temper outbursts sometime prior to 5 March 2004 when Dr Martin considered a referral to anger management. Mr Johnstone's attempt to explain this as him having reported that he had been "crabbit" with his daughter struck me as an unconvincing attempt to minimise an entry in his records that he knew would be significant so far as the issue of whether he could show that his emotional difficulties were causally related to the accident. I have already commented on the unlikely coincidence of his wife coining the same expression for what was a serious matter reported to the GP.

[36] Mr Johnstone's reluctance to accept that both his shoulders were in a poor state prior to the accident despite the clear note from Mr Tait ( 6/2/73) added to the impression I had of him that he would say and do whatever he thought necessary to maximise his claim. There were also examples of him lacking candour in minor ways that taken together have a bearing on credibility. Shortly before the accident he wrote to clubs he had performed in advising that he would no longer be available to do so due to relocation ( 6/10/30 of Process), which he admitted was not true or at least

".. not to be taken literally." When he applied for tax credits he stated that his business was that of "bouncy castle" hire when on his own evidence being a part time musician was his most important vocation. He accepted that he ought to have given details of both businesses at that time. While these may be matters peripheral to those that require to be determined in this case, they are suggestive of a tendency on the pursuerpursuer's part to mislead where he perceives, rightly or wrongly, that he might benefit as a result.

[37] However, the central issue on which I cannot accept Mr Johnstone's evidence as credible is his position on the request made of Ms McLaughlin in 2005. He could not explain why Ms McLauhghlin McLaughlin would have referred to his having made an offer to her at the meeting that, in her email of 8 September 2005 ( 6/10/85). He seemed to accept that he had offered her something by way of expenses, but when pressed by Mr Clarke as to what expenses Ms McLaughlin might incur in confirming details of the Duo's bookings and earnings he speculated that she might have to travel to Glasgow if she had left such paperwork with relatives. He then said in terms that he offered to pay her to get the paperwork. When it was put to him that if his solicitor was trying to assist with a wage loss claim it must have been on the basis that the pursuerpursuer had advised that he would still have been working with the band he claimed agreed that his solicitor may have got that impression but if so he had been wrong. Mr Johnstone had detailed records himself of the bookings and payment for the performances he and Ms McLaughlin had undertaken as he dealt with the paperwork. He could not explain why he would require to have Ms McLaughlin corroborate past bookings. At one point he went so far as to say that it was "ambiguous". The manner in which he gave his answers to these questions was evasive and unhelpful.

[38] I have reached the conclusion that Mr Johnstone set out to maximise his claim from the outset and was prepared to take such steps as he deemed necessary to assist that aim, including giving inaccurate or exaggerated accounts and attempting to procure false evidence. Accordingly, I am unable to place any reliance on the evidence he gave unless it was corroborated by other unchallenged or acceptable evidence, such as from the medical records or witnesses.

Assessment of Damages

[39] Mr Johnstone tendered a written submission of 73 pages in length, to which I have given careful consideration. Mr Clarke tendered a summary submission which he amplified at the bar. The pursuerpursuer did not address me specifically on quantum, at least in relation to solatium, indicating that he would be content to leave that matter to me. Mr Clarke referred to a number of authorities.


Solatium

[40] It will be apparent for from the earlier narration of the medical evidence that there is no dispute that Mr Johnstone suffered a whiplash type of cervical spine paravertebral muscular strain in the accident of 17 A August 2004. I do not accept that he was rendered unconscious even momentarily by the accident as there was no reliable evidence to support that suggestion. I accept the evidence of Mr Foxworthy in relation to the altered sensation in the hands and arms reported to the pursuerpursuer's GP shortly after the accident being attributable to the neck injury. Mr McMaster had not seen the GP records before preparing his report and did not know that the "pins and needles" sensation had been reported to Dr Martin very shortly after the accident. He did accept that a single episode of that kind of sensation could relate to the accident. What he did not accept was that the ongoing problem had any relationship to the neck injury. Mr Foxworthy 'Foxworthy's evidence that such altered sensation was common after an injury of this sort was not directly challenged. The picture is complicated by the trigger finger that was not accident related and the assumption of the GP that Mr Johnstone also had carpal tunnel syndrome. Mr Foxworthy clearly distinguished between altered sensation in the hands and arms that could be categorised as referred pain form from the neck and the other difficulties with his fingers and hands that manifested themselves at a similar time but were unrelated to the accident. Ultimately there was little between the two experts but on the particular issue of whether any of the altered sensation in the hands and arms was referable to the accident. on On balance I prefer the evidence of Mr Foxworthy who studied the pursuerpursuer's medical records, including the GP records, before expressing a view on that particular issue.

[41] I accept also that the pursuerpursuer suffered some shoulder pain as a result of the neck injury. This was referred pain from the neck and quite distinct from the rotator cuff problems from which Mr Johnstone had suffered prior to his accident in both shoulders. As I have already indicated there was no medical evidence to support any contention that the trigger finger problem or carpal tunnel syndrome were caused by the accident. Accordingly, it seems to me that there are two main issues that require to be addressed in assessing solatium. These are the length of period of recovery from the accident related injuries and the question of whether the depressive disorder from which Mr Johnstone has been found to suffer was caused or materially contributed to by the accident.

[42]

The findings I have made in relation to the pursuerpursuer's credibility and reliability have a bearing on these issues. Mr Foxworthy understandably accepted the Pursuerpursuer's word in relation to whether there was ongoing pain from the neck injury, but I have found that Mr Johnstone has been inconsistent in his account. I have noted already that the pursuerpursuer's own record noted that his neck was almost "back to normal" less than six months after the accident. The pursuerpursuer's main focus thereafter was his hands. He attributed his inability to play the piano for some time after the accident to that problem, saying that he had tried to pay the piano with "straight fingers" but had been unable to do so. In my view I conclude that, the pain and suffering directly attributable to the accident subsisted for at leastabout six months, with occasional pain thereafter, some of which was related to the hand symptoms that were largely unrelated to the accident. I accept that Mr Foxworthy recorded that by April 2006 the pursuerpursuer was still reporting an "occasional twinge" in his neck but having regard to the accounts given by the pursuerpursuer in his own record of events and to Mr McMaster I do not accept that he was in any way debilitated by the neck and shoulder pain attributable to the accident by thatfor some time prior to that date date.

[43] It is clear from his written submission that Mr Johnstone either did not understand or refused to accept even his own expert witnesses' views. He states ( at page 48 of his submission) ;-

" There were absolutely none of the injuries received in the accident on 17th August 2004 present on my person prior to the accident - whether neck, hands, shoulders or depressive."

I have already found that Mr Johnstone had pre pre-existing health problems that have no relationship to the accident. In light of the evidence adduced at proof I reject Mr Johnstone's contention that all of these problems are attributable to and arose after the accident. There was some evidence that he had had continued to lift the speakers required for club performances notwithstanding his pre existing shoulder problems in the years leading up to the accident. However, the problem with the left shoulder about which Mr Johnstone complained was thought to have an identical cause to that for which successful decompression surgery was performed to the right shoulder in 2003. A left shoulder decompression was performed by the same surgeon, Mr Tait, in February 2006 ( 6/2/54-57 of Process). Taking the evidence as a whole, I conclude that while the pursuerpursuer suffered some referred pain in the shoulders as a result of the neck injury over the months following the accident, the bilateral subacromial impingement which he had for some years and which was entirely unrelated to the accident continued to cause difficulties thereafter, resulting in the second shoulder decompression being performed in February 2006. On 27 March 2006 he was discharged from Mr Tait' Orthopaedic clinic having reported that he was delighted with the results of his shoulder surgery, was back at work and was driving with a pain free shoulder ( No 6/2/52 of Process).

[44] Turning to the issue of the diagnosis of depressive disorder this post dates the accident by quite some time. The first relevant post accident entry in Dr Martin's records is on 7 March 2007 in which it is noted " Anger management counselling - Recurrence-". In my opinion that is significant because it is in similar terms to the pre accident entry relating to the temper outbursts, but on this much later entry the referral is actually made and the pursuerpursuer attended a Pauline Brown as recorded earlier. Dr Tom Brown considered that the lapse of time between the accident and the need for counselling was significant in determining what relationship, if any, there was between the two and I agree with that. Of even greater significance, however, is the close temporal relationship between the pursuerpursuer suffering a coronary thrombosis in February 2007 and the reporting of incidents that required the referral for counselling. I accept Dr Brown's evidence in its entirety. and I conclude that Mr Johnstone had emotional health problems prior to the accident, that he regarded the accident as a significant life event, but that on balance he would have developed a depressive disorder even if the accident had not occurred. The breakdown of his marriage and his accident unrelated physical health difficulties had made him vulnerable to that. His heart disease in early 2007 and the death of his brother in July 2007 seem to have tipped him over the threshold such that he met the criteria for depression by the time he saw Dr Brown in January 2008. In these circumstances I do not accept that the pursuerpursuer's depression was caused or materially contributed to by the accident.

[45]

Mr Clarke suggested that if I found that only a whiplash injury with related symptoms for around six months was attributable to the accident, solatium should be assessed on full liability at around 3,075 - 3,690. Those were updated figures based on two sheriff Sheriff court Court decisions from 2001, Toumi v Crossnan ( Sheriff JH Stewart, 22 February 2001, unreported) and Conway v Wood ( Sheriff Wood, 26 October 2001, unreported). While interest would require to be added to that sum, Mr Calrke Clarke submitted that the judicial rate was a penal rate designed to encourage resolution as early as possible. The pursuerpursuer attempted to complicate the situation. He sued for a large sum of money and was unable to quantify his alleged wage loss at the stage when valuations of claim were being lodged. Interest should be awarded at a lower rate.

Services

[46] There was brief unchallenged evidence that after the Pursuerpursuer was released from hospital following the accident he didn't feel he could cope on his own and Mrs Johnstone assisted him at home. She allowed him to stay in separate accommodation available at her home. She was available if he needed help. He called upon her during the night on occasions and she assisted him.

[47] Mr Clarke had no particular suggestion to make in relation to any award for services. He accepted that if the evidence was there is might be appropriate to award something. The DefendersDefenders had inserted a figure of 500 for services in theor their Statement of Valuation of Claim.

The impact of the pursuerpursuer's conduct on any award of dmaagesdamages

[48] Mr Clarke went on to submit that I should award no damages at all or perhaps nominal damages in this case in light of Mr Johnsotne's Johnstone's actions in attempting to bribe or induce Ms McLaughlin to lie. While this incident related to the claim for wage loss, it should taint the claim as a whole. Reference was made to Yuill v Yuill
[1945]
P 15, Shetland Sea Farms Ltd v Assuranceforeeningen Skuld 2004 SLT 30; Rodger v C& J Contracts Ltd
[2005] CSOH 47
and Zahoor v Masood
[2009] EWCA 650
.

[49] I have already made clear that I consider that the pursuerpursuer has failed to prove that, but for the accident he would have been earning money through a combination of performance fees supplemented by tax credits. In his own evidence he had given me the impression that he had a specific plan with the "Get Back Band" but he ultimately accepted that this was not so. He might have hoped to become engaged in a new musical project ( the expression ultimately used in his written submission at page 12) but there was no evidence of that far less any material to demonstrate what, if anything, he would have earned. Mr Johnstone may feel aggrieved at the accident having occurred at a time when, in contrast with the years that preceded it, he had no work at all. Had there been evidence that he was taking a planned break for a specified period and of a source of work thereafter, he would not have been unduly disadvantaged by the timing of the accident. However, the notification to the clubs that he had played for so many years that he was moving on and that Ms McLaughlin would be taking over, taken with the sale to her of the band's speakers and related equipment ( 6/10/32-33 of Process) suggests, in the absence of explanation, that Mr Johnstone had given up work. The vague suggestion he made in evidence that he would have continued to play in clubs is an insufficient basis upon which to base a claim for wage loss.

[50]

I have reached the conclusion that Mr Johnstone knew well the difficulties he would face in making a wage loss claim in light of the termination of the partnership with Ms McLaughlin in July 2004 and the absence of any firm plans for alternative work. Those difficulties were expressed by him as a "..little bugger of a dilemma.." in his email to Teri McLaughlin of 22 August 2005 ( 6/10/83 of Process). He hoped that Teri would help him resolve that dilemma by confirming that, but for the accident they would have continued to work together in Allure Duo. It is hard to see that information about bookings for performances that post dated the accident would have been relevant for any other purpose. Thus Mr Johnstone was prepared to mislead the DefendersDefenders and ultimately the court on this matter and he attempted to enlist Ms McLaughlin in that plan. As he has failed to prove any wage loss his attempted deception has had no consequences other than in relation to the findings about his credibility that I have made. However, I must consider whether or not his conduct should affect the level of the award of solatium that would otherwise be made.

[51]

In Shetland Sea Farms Ltd v Assuranceforeningen Skuld 2004 SLT 30 it was confirmed that the court Court has an inherent power to dismiss a claim where the party pursuing it has been guilty of an abuse of process, but that the power is a drastic one, to be exercised sparingly. The court Court must keep in mind the general right of every litigant to pursue his case to judgement. In that case, an issue arose as to whether a particular claim should be allowed to proceed to proof where false documents had been presented to the court in its support. In this case the proof has taken place and it was in the course of that hearing that evidence of a previous, unsuccessful attempt to mislead emerged. What is suggested is that the conduct should reduce or negate the award of damages, which is a different issue from that arising in the Shetland Sea Farms case.

[52]

In Zahoor v Masood
[2009] EWCA 650
the Court of Appeal addressed the issue of whether, if there has been serious wrongdoing by each side, there are circumstances in which the court should refuse to try the merits of the dispute. That case involved a claim for alleged unpaid remuneration and damages and concerned a dispute between former friends. Both sides made claims that documents relied upon by the other side were forged. The trial judge held that the perjury and forgery on both sides was so extensive that he could not accept the evidence of either party, unless substantiated by independent documents whose veracity was not challenged. But he had refused to strike out the plaintiff's claims, a decision that was upheld by the Court of Appeal. More importantly for present purposes, there is some discussion in Zahoor of the recent decision of the Court of Appeal in Shah v Ul-Haq
[2009}
] EWCA Civ 542, where the argument that the court had power to strike out a claim at the end of a hearing case even where there is no suggestion that it has had not been possible to hold a fair hearing was rejected. It was said under reference to Arrow Nominees Inc v Blackledge
[2000] 2 BCLC
that the outcome may be different if the abuse of process had defeated the trial process or where without the disregarded evidence the claim cannot succeed.

[53]

While the Shah case involved a discussion of an English rule of procedure, it seems to me that the general principle is correct. A party may be dishonest in one part of his claim but that does not require dismissal of those parts of his claim that are legitimate and have been proved. It is not unusual for part of a witnesses' evidence to be accepted by the court Court and another part rejected. Further, Mr Johnstone's misconduct was a matter of contention at proof, something that was not admitted or proved other than as part of the hearing on the substance of the claim. I do not consider that Mr Johnstone has forfeited his right to pursue any claim as a result of his attempt to mislead on the issue of wage loss where there has been a full and fair hearing on all issues and no suggestion that those issues could not be properly determined. While his actions should not escape condemnation and may be havecertainly prolonged the length of the proof, I consider that he is nonetheless entitled to a determination on a conventional basis on the issue of damages for his loss insofar as attributable to the accident. arising out of the accident.

Decision

[54]

In light of the decision I have reached in relation to Mr Johnstone's credibility and on the basis that the neck and shoulder pain from his whiplash injury, with associated altered sensation or parasthesia in the hands and arms, had largely resolved within six months, albeit with some occasional discomfort thereafter for up to another six months, I consider that the appropriate award of solatium is 3,750. All of that is of course attributable to the past and I will award interest on it at half the judicial rate, which is in my view the appropriate level in all the circumstances and where the award is referable to a period of time starting with the date of the accident.

[55] To that I will add a sum of 500 for services, again with interest at half the judicial rate from 17 August 2004.

[56]

I therefore assess the total damages, inclusive of interest, to which the pursuerpursuer is entitled as a result of the accident at 5,157.65. I shall pronounce an interlocutor accordingly. I shall reserve meantime all questions of expenses.


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