Lord Ordinary refuses bulk of damages claim made by woman with long-term medical problems who fell down shallow manhole

About this case:

• Citation:
  [2022] CSOH 50
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Turnbull

Sharon Cossey, the pursuer, argued that she had been heavily restricted in her day-to-day activities in the five years following the accident and sought £40,000 in solatium as well as loss of earnings, pension loss, and necessary services. The defender, Buccleuch Estates Ltd, admitted liability for the accident but maintained that any difficulties suffered by the pursuer were attributable to other factors.

The case was heard by Lord Turnbull. Galbraith QC appeared for the pursuer and Shand QC for the defender.

Somatoform symptom disorder

The pursuer resided with her husband and teenage son at an address in Selkirk and worked as a service centre manager for Yodel. On 12 August 2017, she was on her way home from a barbecue at her neighbour’s house when she accidentally dislodged a manhole cover and fell into the hole. According to the pursuer, she was able to break her fall with her arms so that her feet never touched the bottom and had to be pulled out by her husband.

The pursuer was admitted to hospital, where it was found she had suffered a series of soft tissue injuries. She worked from home for eight weeks as she was unable to attend her workplace. However, she claimed that over the course of the five years since she had suffered from persistent pain in the right side of her body and was now unable to manage ordinary domestic tasks or put her weight onto her right leg.

Video footage of the manhole taken by an employee of the defender showed that the manhole had a depth of just under two feet and therefore could not have been fallen into in the manner described by the pursuer. Evidence was also led that the pursuer suffered from a lengthy history of medical complaints prior to the accident, including somatoform symptom disorder, which she did not accept that she had.

Counsel for the pursuer invited the judge to treat her as a credible and reliable witness, and that an overview of the evidence would show that she had developed new somatoform symptoms since her accident. In response, the defender submitted that the pursuer ought not to be accepted as a credible and reliable witness, and on that basis her claim of exacerbation had not been made out.

No support

In his decision, Lord Turnbull said of the pursuer as a witness: “She has demonstrated a history of providing inaccurate information on matters affecting the claim advanced on her behalf. Whether that is explained by a symptom of her underlying condition or some other reason does not really matter. What it demonstrates is that her evidence cannot always be treated as reliable. That conclusion has to be kept in mind in assessing the pursuer’s evidence as to the persistent nature of her pain.”

Turning to evidence led from her work colleagues, he continued: “It seems to me that the pursuer has continued in her employment, without any associated absences, in a well-paid and responsible managerial position which requires a two-hour drive each day on top of her working hours. She has performed with success in the eyes of her employers and without any adjustments requiring to be made. It does not seem to me that this evidential picture provides support for an account of constant debilitating pain.”

Addressing the medical evidence, Lord Turnbull commented: “The available evidence which is reliable demonstrates that the pursuer has suffered somatoform pain in her right upper limb on an intermittent basis since the time of her accident. To the extent that her own evidence was to a different effect I do not accept it.”

However, he went on to say: “I do not accept the contention advanced in closing submissions that the pursuer has developed new somatic symptoms of pain in her right side. In any event, the assumption that a new symptom equals an exacerbation is misplaced given the evidence that it is in the nature of the condition that symptoms develop in different parts of the body unpredictably.”

Lord Turnbull concluded on damages: “I consider that the submission presented on behalf of the defender does not adequately reflect the value to be attached to the injuries caused directly by the accident. I note that the Judicial College Guidelines provide a range of between £3,208-£4,308 for minimally displaced wrist fractures and soft tissue injuries necessitating the application of plaster or a bandage for a matter of weeks and a full virtual recovery within up to 12 months or so. The pursuer’s wrist injury might be thought to fall at the bottom end of this range.”

Taking account of other bruising the pursuer sustained, Lord Turnbull therefore assessed damages at £4,200 for solatium and £846 for necessary services provided by her family during her recovery.