Road Accident – exacerbation or not?

The recent decision by Lord McEwan in the case of Sheila Tapp v Helen McColl [2016] CSOH 129 highlights the importance of written pleadings in Scottish court actions.

The Pursuer, a retired school teacher, sought damages for injuries arising from a road traffic accident in July 2012. Liability was admitted but quantum was disputed. A Proof on quantum proceeded before Lord McEwan in which the Defender elected not to lead any evidence.

Evidence was led from the Pursuer, her husband, a Consultant Rheumatologist and a Consultant Orthopaedic Surgeon.

It was not disputed that prior to the accident the Pursuer had pre-existing medical conditions, including cervical spondylosis and fibromyalgia (a long term condition which causes pain all over the body). The crux of the dispute between the parties was whether the accident had exacerbated the Pursuer’s pre-existing fibromyalgia causing increased pain for the Pursuer.

The Consultant Rheumatologist in evidence maintained his opinion provided in a medical report to the effect that the Pursuer’s fibromyalgia had been exacerbated by the accident. The expert supported his view by referring to some epidemiological studies.

In contrast the Consultant Orthopaedic Surgeon led by the Pursuer gave evidence that he knew of no scientific link between fibromyalgia and trauma, albeit the matter was outwith his expertise. It was his opinion that the accident had aggravated the Pursuer’s osteoarthritis and he expected her symptoms to persist for approximately 18 months post-accident.

An objection was taken by Counsel for the Defender during the course of the Pursuer’s evidence relating to her fibromyalgia. After debate Lord McEwan allowed the evidence to be heard but under reservation.

In submissions Counsel for the Defender addressed the court on the issue of the exacerbation of fibromyalgia. Turning to the written pleadings, on Record the Pursuer had simply averred:

“as a consequence of the soft tissue injuries, the pursuer has exacerbated her cervical spondylosis…”

It was therefore submitted the Defender had no fair notice of the fact the Pursuer intended to prove the accident exacerbated her pre-existing fibromyalgia.

In reaching a decision Lord McEwan held that on a proper reading of the pleadings there was no fair notice provided to the Defender that it was claimed the accident exacerbated the Pursuer’s pre-existing fibromyalgia. The evidence on this point was therefore not taken into consideration by his Lordship in valuing the Pursuer’s claim.

In any event, Lord McEwan considered that if he was wrong on the fair notice point then the Pursuer had failed to prove a link between the accident and any exacerbation on consideration of the evidence before the Court.

In awarding damages for personal injury Lord McEwan held the Pursuer suffered soft tissue injury and neck/shoulder pain for a maximum period of 18 months. She was therefore awarded £5,000. An award of £1,000 was made for services but a claim for wage loss was rejected as there was a lack of evidence to prove any such loss.

The personal injury award was markedly lower than it would have been had the Pursuer had established the accident did exacerbate her pre-existing condition. In his concluding remarks Lord McEwan advised he would have awarded the Pursuer an additional £20,000 for the exacerbation had it been proved.

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