MaCauley v. Advocate General For Scotland [2006] ScotCS CSOH

"6.2 ... In the past, when it was standard practice to strip the entire long saphenous vein (LSV) down to the ankle, it was common to find an area of numbness in the ankle region caused by damage to the saphenous nerve in the course of stripping the LSV at calf level. In the past decade or so, surgeons have stopped stripping the full length of the LSV and it has become standard practice only to strip the thigh portion of the saphenous vein. Consequently nerve damage due to the stripping process has become rare. Nerve damage nowadays almost invariably occurs at the site of an incision made to remove a portion of vein (phlebectomy) (Gloviczki & Yao 1996)."

[16 ] In the present case, although unanimous in their opinion that the pursuer had suffered some form of nerve damage during the operation, and although the weight of medical opinion was that a neuroma had formed causing the pursuer continuing pain and disability, the medical witnesses could not say exactly what had happened. They assisted the court by describing various possible mechanisms of damage. Some witnesses indicated their preferred option.

[17] Mr. Corner stated that he did not believe it possible to say how the injury had occurred. He had not been aware of anything untoward in the course of the operation. It was his belief that the nerve had been damaged by traction when the main saphenous vein had been stripped and brought out. He suggested that, when the vein was removed out, traction had stretched the saphenous nerve beyond its elastic limit, giving rise to the pursuer's symptoms. He explained that the saphenous nerve below the knee lay in close proximity to the saphenous vein. When the vein was stripped out, it tended to bunch up. Tributaries would be avulsed. It was possible that the bunched-up vein would have the effect of pulling the nerve. In the mechanism suggested, it was possible that damage could occur a centimetre or so away from the point of traction. Thus nerve damage could occur below the level of the incision in the calf.

[18 ] Mr. Corner accepted that it was possible that the nerve might be cut, or caught in a ligature. However he had not been aware of incising too deep and cutting the nerve; nor had he been aware of cutting or tying the saphenous vein with the saphenous nerve attached to it. He pointed out that his surgical procedures involved identifying a structure and cleaning it before cutting it. He could not believe that he would not have noticed a nerve next to the vein. Similarly Mr. Corner accepted that it might be possible to damage the nerve when using forceps to compress the vein. Again however he considered that he would have been aware that he had picked up the nerve.

[19 ] Mr. Corner had given the case considerable thought over the years. He did not know how the nerve came to be damaged. If he could identify the way in which it had been damaged, he would not have continued to carry out his varicose vein operations in the same way. As he was unaware of anything which might have caused the damage, he was continuing to carry out his operations in precisely the same way.

[20] Professor Ruckley, Emeritus Professor of Vascular Surgery at the University of Edinburgh, examined the pursuer on two occasions, studied medical records and reports, and provided two reports dated 29 September 2003 and 12 June 2005.

[21 ] Professor Ruckley believed that the mechanism of damage to the nerve had to be one of cutting, crushing, or incorporation in a surgical ligature. He was unable to say which. He gave further details of each mechanism:

(i) Cutting: Dissection involved sharp instruments such as knives, scalpels, and scissors. In the course of opening up the wound and searching for the structure to be operated on, it was quite easy inadvertently to cut something. Similarly when a vein was being divided prior to extraction, it was quite possible to cut other structures.

(ii) Crushing: Crushing could happen quite easily. A surgeon often had to pick up a vein and grip it firmly with forceps. Similarly forceps might be clamped across a vein prior to dividing it. The vein might be in close proximity to a nerve, and lightly connected to the nerve by soft tissues. The surgeon had to separate the vein and the nerve to ensure that only the vein was dealt with. However crushing of the nerve could occur in such circumstances.

(iii) Incorporation into a ligature: At certain parts of the anatomy, the saphenous vein and nerve lay close to each other, incorporated in normal anatomical connecting tissues. When a vein was being pulled up, clamped and tied, it was quite easy inadvertently to incorporate the nerve into what was intended to be a ligature for the vein.

[22 ] Of the three possible causes, Professor Ruckley rated cutting as a more probable cause of injury than crushing or incorporation in a ligature, although all three mechanisms were realistic surgical possibilities.

[23 ] Professor Ruckley did not support Mr. Corner's theory that the bunched-up vein may have affected the saphenous nerve. A bunched-up vein was soft, compliant tissue. It was difficult to accept that the nerve could be sufficiently bruised or compressed by the passing of the bunched-up vein. For a neuroma to develop, one required a local and clear separation of all or part of the nerve. It was difficult to see how traction could achieve that result. Traction would stretch the nerve, and might even tear it at some higher point. But the professor could not see how traction would give a clear separation of nerve ends associated with neuroma formation. There might be a ragged sort of tear, over some distance, but not a clean break across the nerve. Professor Ruckley had examined the pursuer and found no evidence of such a ragged tear, but rather evidence of nerve damage localised at the point beneath the 3 cm scar. Professor Ruckley had never seen a neuroma caused by a stripper. Millions of varicose vein operations were carried out, and no association between stripping the vein and the formation of a neuroma had emerged. Such an association had been neither demonstrated nor described in the literature.

[24 ] The professor agreed that it was theoretically possible that in operations giving rise to lesser symptoms such as transitory or minor areas of numbness, a nerve might have been damaged by one or other of the mechanisms of cutting, crushing, or incorporation in a ligature. It was also theoretically possible that there might be damage by cutting, crushing, or ligation, leading to an asymptomatic neuroma. However he personally had never encountered one; nor was he aware of any literature about asymptomatic neuromas.

[25] Dr. James Campbell, consultant in musculo-skeletal medicine at the Royal Infirmary of Edinburgh, specialised in pain problems. He examined the pursuer on 18 August 2001 and 15 January 2005. He had never before seen a patient who had pain in the context of nerve damage following upon a saphenous vein strip. In his view, contusion or bruising leading to numbness would not result in the formation of a neuroma, because the nerve sheath was intact, and the nerve cell was able to re-establish itself. However if a nerve was divided or transected, a neuroma would form. One would need to have a large number of fibres transected to produce a neuroma which was symptomatic. Transection could occur if the surgeon's knife cut through the nerve, but possibly also if the nerve was ligated so that its continuity was interrupted by a tight ligature. Most neuromas were asymptomatic. Thus if the saphenous nerve were partially cut in the course of a varicose vein operation, there was every possibility that there would be an asymptomatic result. So far as stretching was concerned, Dr. Campbell could not envisage how sufficient traction could be applied to the nerve during a varicose vein operation to disrupt it. The breaking off of a side-branch of the nerve with resultant neuroma formation was a possibility, but was unlikely. Transection by a sharp instrument was the most likely explanation for nerve damage. Transection of a branch of a nerve would probably be insufficient to cause a neuroma.

[26] Mr. Quaba, consultant plastic surgeon at St. John's Hospital, Livingston, had examined medical records and reports, and produced a report up-dated on 20 January 2005. He had not examined the pursuer. In his view, the mechanisms of injury could be cutting a nerve; pulling it sufficiently so that it tore; crushing a nerve badly (for example, with forceps) so as to disrupt its structural integrity; and occasionally burning a nerve (for example, by surgical cautery). Generally speaking, incorporation into a surgical ligature was unlikely to cause a neuroma. The ligature would cause pain and discomfort, but unless the ligature was tight enough to snap the nerve, the formation of a neuroma was unlikely.

[27 ] Mr. Quaba agreed that, as a matter of medical science, it was not possible to identify the actual mechanism of the pursuer's injury. It was a question of probabilities. Standing Dr. da Costa's conclusion that some nerve fibres had been spared, Mr. Quaba agreed that any cutting injury would be a partial cut, not a complete cut.

[28 ] When asked whether he would include traction as a possible mechanism of injury, Mr. Quaba stated that there would have to be a very considerable force to get the nerve to snap and produce a neuroma. The sort of force he had in mind might be created by getting a surgical instrument around the nerve and lifting the whole leg off the operating table. He nevertheless accepted that traction had been included as a possible mechanism in research by Birch and others in 1998, referred to in his own report.

[29 ] Mr. Quaba agreed that damage to nerve branches during the operation was a possible mechanism. Damage to a branch could cause a neuroma and pain. But in the pursuer's case, there was a tender spot and a loss of feeling on the inside of the lower leg, extending to the foot. That suggested an insult to the main saphenous nerve, rather than to a small branch. Mr. Quaba considered it highly unlikely that, when stripping out a branch, damage had been inflicted on the trunk of the main saphenous nerve (although he qualified that view by pointing out that he had not performed a varicose vein operation for some time).

[30 ] In relation to neuromas, Mr. Quaba confirmed that not every neuroma caused pain. No-one knew what made a neuroma a painful one. The size of the neuroma was irrelevant. A small neuroma on the saphenous nerve could cause considerable trouble. In theory, a larger neuroma indicated more significant damage to the nerve, and more likelihood of pain. However there was no mathematical rule, and a large neuroma could be symptomless, although on a balance of probabilities, a larger neuroma was more likely to cause problems.

[31 ] Mr. Engeset, retired consultant surgeon who had specialised in vascular surgery, had not examined the pursuer, but had reviewed medical records and reports and had provided a report dated 19 March 2003.

[32 ] Mr. Engeset had never, in his forty years of surgical practice, seen nerve damage leading to chronic pain. Minor nerve damage giving rise to numbness was very common. The numbness was normally of no significance to patients, and tended to disappear in time. Nerve damage was more prevalent when a vein was stripped to the ankle, and thus practitioners confined the area of operation from the groin to the knee. Nevertheless nerve damage still occurred.

[33 ] Mr. Engeset stated that in his view the most likely cause was the wire stripper being pulled down to strip out the vein. There were about twenty or thirty small nerves or side-branches running from the saphenous nerve to supply the skin. In Mr. Engeset's view, the stripper (with a lump of tissue at its end) had in all probability pulled off a side-branch of the saphenous nerve at some point above the wound in the pursuer's calf. It was his belief that severance of a side-branch from the main trunk of the saphenous nerve would cause a neuroma. Nerve axons from the spinal cord would be broken off, and would grow from the side of the nerve. The severance would occur where there was contact with the main trunk: that might involve damage (tearing) to the nerve fibres in the main trunk. The main trunk would therefore be disrupted. The neuroma would form at the area where the severed nerve met the main trunk of the saphenous nerve.

[34 ] No-one quite knew why neuromas formed. Nor was it known why some neuromas caused pain, and others did not. There was no evidence that a neuroma had to be of a certain size before causing pain.

[35 ] Mr. Engeset was asked to comment upon other possible mechanisms of damage.

(i) Traction: Mr. Engeset dismissed the theory of the saphenous nerve being stretched beyond its elasticity, and thus suffering damage. In Mr. Engeset's opinion, nerves were not really elastic, and he could not envisage damage to the main trunk of the saphenous nerve being caused that way. Such a mechanism was very unlikely.

(ii) Cutting was possible, but was unlikely at this site. The wound in the skin was made only to get the stripper out. A scalpel was used to make the wound, but thereafter the surgeon used blunt dissection (i.e. opening up the tissues around the vein with forceps) to get the stripper out. There was no use of a scalpel within the wound, although one might use scissors to open up tissues. The distal end of the vein was lifted from the wound and cut, possibly with scissors, but it was far away from the saphenous nerve. Mr. Engeset did not think it conceivable that the surgeon might have lifted out the saphenous nerve with the vein and included the nerve in the cutting of the vein. He did not consider that the nerve could come so far out. The saphenous vein was elastic, but the nerve was inelastic and firmly stuck in the fascia. The final stage was the tying-off of the cut saphenous vein, leaving the lower part of that vein in the lower leg. No other sharp instrument was used. In relation to the smaller varicosities (dealt with by phlebectomies), tiny cuts were made at marked places over the veins. Fine forceps or a hook pulled out the varicosities. No sharp dissection was necessary. The smaller veins were pulled out and torn off, and then compression used to stop bleeding.

(iii) Ligation: Mr. Engeset confirmed that the vein had to be dissected out in order to be ligated. The dissection was carried out with small forceps, not with a scalpel. When scissors were used to cut the vein, the vein was freed. It was then tied off. Inadvertent incorporation of the nerve into the ligation of the vein was a possibility. However Mr. Engeset considered such a mechanism to be very unlikely.

(iv) Crushing: Mr. Engeset confirmed that crushing the trunk of a nerve was a possible mechanism of nerve damage. There was a considerable amount of bleeding in a varicose vein operation. An inexperienced surgeon might use forceps to stop the bleeding, and tie around an absorbable suture. But an experienced surgeon would simply swab away blood, and put compression on the wound.

[36 ] Miss Lynn Myles, consultant neurosurgeon at the Western General and Sick Children's Hospital, Edinburgh, had studied the pursuer's medical records, and was aware of the circumstances of his operation. She described Mr. Corner's method of operating as a very standard technique.

[37 ] When asked to offer an opinion about the likely cause of the nerve damage, Miss Myles stated that there were several possibilities, although it could not be said what had actually happened. The possibilities were: (i) the nerve was crushed, for example, when the vein was clamped; (ii) the nerve was stretched, either when the vein was pulled out of the leg, or during the passage of the stripper; (iii) the nerve was cut, although not divided; (iv) the nerve was included in a suture (a type of crush injury); or (v) the nerve could have been devascularised, in other words, deprived of its blood supply to the extent that it stopped working.

[38 ] Of the five possibilities, Miss Myles selected crushing, cutting, and ligation as the most likely. But it was not possible to say which had actually occurred.

[39 ] Miss Myles accepted that it was possible that there had been damage to a branch of the saphenous nerve. That might account for the partial functioning. The branch might be injured, avulsed, and stripped back to the main nerve, causing damage to the main nerve. Although the initial insult might be to the branch, it was quite possible that such an insult would ultimately cause a neuroma to form on the main nerve.

[40 ] Miss Myles agreed that it was likely that the pursuer did in fact have a neuroma. There were different types of neuroma, and it was not clear which type the pursuer had. A tiny neuroma could be very painful, while a large neuroma could be pain-free. It was not therefore reasonable to argue that the greater the number of disorganised nerve fibres, the more likely it was that pain would arise.

Medical opinion: negligence.

[41 ] Mr. Corner confirmed that if the varicose vein operation was carried out as he had described, with reasonable care, it was very unlikely that nerve damage causing a neuroma would occur. He had performed about 2000 such operations. Only the pursuer's case had produced such an unfortunate result. However he did not accept that the existence of the pursuer's symptoms meant that the operation had not been carried out with reasonable care. As he had already explained, nerve damage could occur in 30 to 40 per cent of cases, but if the stripping of the vein was restricted to the thigh, the incidence of damage decreased to about 5 per cent.

[42 ] Having described the various possible mechanisms of injury, Mr. Corner accepted a general proposition put to him by counsel for the pursuer, namely that if the surgeon exercised reasonable care, none of the mechanisms of injury should have happened. However he was clear that the unfortunate result achieved with the pursuer did not in itself mean that he (Mr. Corner) had failed to take reasonable care. As he put it, just because injury had occurred did not mean that there had been a lack of reasonable care.

[43 ] Professor Ruckley in his report dated 29 September 2003 gave the following opinion:

"6.4 Areas of skin sensory loss, paraesthesia and hyperaesthesia are very common after varicose vein surgery. However these are normally adjacent to the scar and of limited extent and severity. The disability is normally trivial, no treatment is required and the symptoms tend to diminish with time. The complications experienced by the pursuer are of a different order ...

6.7 Neuroma formation at the site of a scar is very rare and is indicative of direct localised damage to the nerve by dissection at that point ...

6.12 All competent surgeons are aware that operative nerve damage can give rise to troublesome symptoms. I can recall very occasional cases during my experience of several thousand varicose vein operations in which there was neuroma formation with associated pain (Ruckley 1988). It is this type of nerve damage that the pursuer has experienced. Failure to perform the [varicose vein] operation with sufficient care to avoid damage to a major sensory nerve such as the saphenous represents a standard of care below that which would be practised by a surgeon of reasonable competence ...

6.19 An operation performed with normal and reasonable care would not have been followed by the symptoms of nerve damage experienced by the pursuer ...

7.3 Damage to the saphenous nerve when dissecting the saphenous vein during a varicose vein operation, such as to cause neuroma formation, represented an unsatisfactory standard of surgical practice."

[44 ] Professor Ruckley advised that nerve damage occurring in the situations outlined in paragraphs 3.3(i) and (ii) of his report (damage during high ligation and damage during the process of pulling out the stripper when removing the long saphenous vein) would be minor and transitory, and would not be an indication of negligence. Such nerve damage used to be very common in the days of stripping to the ankle. It still occurred, but had been much less common during the last five to ten years as stripping had been limited to just below the knee.

[45 ] In his subsequent report dated 12 June 2005, Professor Ruckley further advised:

"3.9 Breach of duty. Type (iii) nerve damage [i.e. accidental cutting, crushing or incorporation in a ligature], which occurred in this case, represents substandard surgical technique. It would not be caused by a competent surgeon of average skill acting with reasonable care. My reasons for this view are as follows:

(i) As explained above, the surgery is invariably done under direct vision in which the anatomy is, or should be, carefully displayed. The anatomical course run by the saphenous nerve is well documented and constant. Nerves are not difficult to recognise. With normal care nerve damage can therefore be avoided.

(ii) The anatomical propinquity of important nerves to particular leg veins is part of basic medical knowledge and surgical training.

(iii) Warnings about nerve damage are incorporated into descriptions of varicose vein operations in standard surgical textbooks (Bergan 1992, Gloviczksi 1996) and should therefore be the focus of the surgeon's careful attention when performing operations on veins in the vicinity of specific nerves.

(iv) All doctors are taught that the saphenous nerve follows a standard course down the medial aspect of the leg. A competent surgeon, dissecting with ordinary skill at the site on the medial side of the leg 13 cms below the knee, would know the saphenous nerve would be present, would recognise the nerve when he came across it and would take simple precautions to protect it from being cut, crushed or ligated."

[46 ] Professor Ruckley confirmed that, if reasonable care was exercised by the surgeon, cutting the saphenous nerve could be avoided. As the professor put it: "Other structures do get cut accidentally. But it is never an appropriate part of the operation, and would not happen with full care [being taken]." Similarly he stated that crushing the saphenous nerve could be avoided if reasonable care was exercised by a competent surgeon: the surgeon would ensure that the vein was properly separated from the nerve. Further, the professor confirmed that incorporation of the saphenous nerve in a surgical ligature could be avoided if reasonable care was exercised by a surgeon of reasonable competence: with reasonable surgical care and technique, there was no problem. While accepting that the operation wound would be full of blood, Professor Ruckley explained that the blood could be aspirated or swabbed away, and that the surgeon should not cut, clamp or tie anything until his surgical field was reasonably clear (as Mr. Corner had in fact stated in evidence that he had done). The formation of a painful neuroma following upon varicose vein surgery was uncommon because the actual cutting of a major nerve in a well-recognised anatomical route was something about which all surgeons doing varicose vein surgery were warned and should take care to avoid. A properly trained surgeon would avoid causing damage to the nerve. In Professor Ruckley's view, Mr. Corner ought to have avoided the injury described.

[47 ] In cross-examination, Professor Ruckley did not accept that the fact that a significant number of varicose vein operations resulted in minor neurological impairment had any bearing on the quality of care given to the pursuer. However he did accept that it could not be said that a case resulting in the formation of a neuroma always involved sub-standard care: it depended how the damage occurred. He further accepted that one could not be sure how often neuromas were formed, as it was only where a neuroma gave rise to unpleasant symptoms that its existence was known of. Thus Professor Ruckley could not exclude the possibility that asymptomatic neuromas had developed following upon other varicose vein operations, but he pointed out that there was no research on that subject. When it was suggested to the professor that neuromas following upon varicose vein operations were so rare that it was not possible to make any meaningful assessment of the quality of surgical care, he agreed, commenting that a surgeon could go through his career doing varicose vein operations perfectly, but then might experience an inadvertence or an error. That would not necessarily be a commentary on the overall skill of the surgeon, but rather a commentary on a mishap that happened in a particular operation. Nevertheless in the present case, the damage had occurred during a part of the operation where the anatomy was under direct view, where there were warnings in all the books about the dangers of damage, and where normal surgical care involved looking for the relevant nerves and avoiding them. That was why Professor Ruckley had put forward the opinion he had. In Professor Ruckley's view, neuromas following upon varicose vein operations were rare because properly trained surgeons would avoid damaging the nerve.

[48 ] Mr. Engeset stated that the development of chronic pain did not of itself give rise to a valid criticism of the standard of care exercised by the surgeon.

(i) Inadvertent stripping out of a side-branch of the nerve was not negligent, and could not be criticised. It happened quite frequently. He himself had done it.

(ii) Inadvertent incorporation of the nerve into a ligature was not indicative of a lack of reasonable care on the part of the surgeon. The surgeon would not see the nerve. Such an event was the kind of thing which probably happened frequently. It was probably the reason why so many patients had sensory loss in the saphenous vein distribution. Inadvertent incorporation was nevertheless a clumsy thing to do. If the surgeon noticed it, the nerve should be released.

(iii) Inadvertent crushing would probably be indicative of a lack of care, because an experienced surgeon should not put an instrument blindly on something that was bleeding.

(iv) Inadvertent cutting would be incredibly clumsy, and would amount to a lack of care. Mr. Engeset denied that it would be quite easy to cut something inadvertently.

Effect of injury on the pursuer

[49] (a) The pursuer's employment history

The pursuer left school at the age of 16, with four O-levels. He undertook a 2-year YTS programme in construction, with training in electrical work, plumbing, welding, painting and decorating. Although members of his family were involved in the building trade, he did not wish to join them. He did casual work, such as cutting grass and working in bars and clubs.

[50 ] In 1992, when aged 22, the pursuer joined the army. He was working towards achieving NCO cadre. He then underwent the varicose vein operation on 15 March 1995. Initially, he suffered post-operative pain in his groin, and a band of numbness down the side of his right leg. After about two weeks, he returned to light duties. However he began to experience pins and needles, followed by a very sore cramp or "deep pain" in his leg; shooting pains in his leg; and spasms causing his leg to jerk at night. He was prescribed painkillers, but his symptoms did not resolve. Ultimately he was advised that he had suffered some nerve damage. He was shocked.

[51 ] Although the pursuer remained in the army for a further two years, he was unable to perform his duties as a soldier. He could not run, march, wear his brogues, or do the drill. He was unable to pass his basic fitness test. He was down-graded by the Army Medical Board and worked as a storeman. He continued to suffer pain. In May 1996 he was referred to a pain clinic. In 1997, he was examined by a consultant neurophysiologist, Dr. da Costa, who confirmed the diagnosis of nerve damage leaving him with persistent problems. Those problems were described by the pursuer and medical witnesses as numbness, an area of altered sensation which was particularly sensitive to touching or tapping (alodynia), paraesthesia (a sensation of prickling or numbness of the skin, more commonly known as pins and needles), and a deep pain rooted at the operation scar. Impact of his foot on the ground could result in a "shock" up his leg, making running and walking difficult. His leg occasionally gave way. If he was on his feet during the day, he suffered cramps and spasms at night. His disturbed sleep pattern resulted in an inability to get up on time the following day. The pursuer's driving licence was revoked, as his condition precluded safe driving. He had to rely on public transport.

[52 ] In December 1997, the pursuer was discharged from the army because a compulsory drugs test gave a positive result for cannabis. It was a matter of express agreement between counsel that his discharge was unconnected with the varicose vein operation and its consequences. In the face of that express agreement, the pursuer's reasons for taking cannabis were not explored, although it did appear that at least one reason for his taking cannabis was pain-relief.

[53 ] During that period in his life, the pursuer was quite severely depressed. He suffered a disrupted sleep pattern, poor appetite, weight loss, social withdrawal, increased irritability and anger, decreased levels of enjoyment and interest, and self-consciousness about his disability. He told a consultant in psychological medicine, Dr. Burley, that he felt that he had changed from a relaxed, outgoing person to a recluse (Dr. Burley's report dated 19 September 2003).

[54 ] The pursuer then had a 2-year legal dispute with the Ministry of Defence concerning the validity of his discharge from the army. He maintained his willingness to carry out the army duties which he had been performing before being discharged. During the dispute, he was dependent upon state benefits. He was looking for work. However without formal qualifications, the only employments available to him were the manufacturing industry, or labouring: but he was not fit for such work. For example, he could not stand for any period of time; he could not lift heavy weights, or walk long distances; he had a base level of continuous discomfort, exacerbated by being on his feet or doing heavier work. The pursuer stated that he was given to understand that re-training was not available. Ultimately, the Employment Centre classified him as unemployable.

[55 ] The pursuer was unsuccessful in his dispute with the Ministry of Defence. In September 1999, the pursuer (by his own efforts) eventually found work with a Gourock company called Cabervans owned by Mr. Colin Mackenzie. The company specialised in repairing and converting motor homes and TV/film facility units. The pursuer's job was to fit out the motor homes and units with water heaters, plumbing systems, electrical systems and gas systems.

[56 ] The pursuer worked with Cabervans for two years, from September 1999 until late 2001. He performed a standard 40-hour day and overtime. He tried to do work which did not involve heavy lifting or standing. The pursuer maintained in evidence that the company owner Mr. Mackenzie knew about his difficulties with his leg, although Mr. Mackenzie in his evidence denied any such knowledge. It seemed to me more likely that the pursuer consciously or unconsciously concealed any medical problems from Mr. Mackenzie, partly by ensuring that he had sufficient help from his work-mates for certain tasks.

[57 ] The pursuer ultimately lost his job with Cabervans. In evidence, he gave various reasons: absences and lateness for work as a result of his disturbed sleep pattern (attributable to his leg); the break-up of his marriage; and an unfounded allegation of theft at work. Mr. Mackenzie's position was that the pursuer was an appalling time-keeper, a thief and a liar. The pursuer had performed inadequate work, and caused deliberate disruption. It is unnecessary for present purposes to reach a final view on those issues. The fact is that the pursuer had to leave Cabervans in December 2001. He made a claim in respect of his loss of employment, and was involved for a period with an employment tribunal. He found that he had worked for too short a time to qualify for any industrial award.

[58 ] Counsel were agreed that the pursuer's total net earnings from his employment with Cabervans during the period 1 September 1999 to 20 September 2001 amounted to £22,968.18.

[59 ] The pursuer was again dependent upon state benefits. On 11 March 2003, he underwent a Capacity for Work Assessment. By then, he realised that his physical health would not improve. He was no longer able to pursue his hobbies of hill-walking and boxing. He was depressed and irritable, and could not stop thinking about his leg. He again suffered poor appetite, social withdrawal, irritability, and decreased interest and enjoyment. He felt that no-one was offering him any options.

[60 ] The Disability Employment Officer advised the pursuer that he was too unstable for work. The pursuer then made other attempts to find employment. He made inquiries in the area. He tried to work for his sister in her painting and decorating business, but found himself unable to do basic tasks such as stand on a ladder and hold a tin of paint, or stand at the foot of a ladder. The pursuer pointed out that many employers would not put up with the way he was, with restricted capacity, lateness, and days off.

[61 ] In about March 2003, the pursuer began a relationship with Elaine MacDonald, a part-time nursery nurse. She was a major factor in improving his state of mind. Furthermore, certain reductions in his state benefits made the pursuer feel that it was essential that he found work. As no understanding employer had been found, the pursuer felt driven to start up his own business, doing the one thing he could do, namely fitting up motor homes and units. On 21 September 2003, he started his own business. He stopped receiving benefits, other than disability living allowance. His business was called "Macnroe Conversions" to reflect his surname and that of a friend who helped him with the work.

[62 ] Initially, the pursuer had some success: for example, he produced two units for the Taggart TV programme. However he was beset with problems. He rented work-space from someone who then moved premises, such that the pursuer had difficulty getting to work as he had to take public transport and walk some distance up-hill to the new premises. There were disagreements about payment for work done. The pursuer claimed that a sum of £3,000 was owed. Thus there were cash-flow problems in addition to problems of work-space, storage of tools, and finding customers. During the period between January and June 2005, the pursuer provided estimates, but obtained no work contracts. His father-in-law donated an old van for him to work on.

[63 ] When giving evidence, the pursuer frankly acknowledged that the business "as it sits just now, [is] totally unrealistic". He had given his business books and papers to Mr Sim, chartered accountant, who had calculated an overall profit from the business for the period from September 2003 until April 2005 at £5,518. The pursuer had also discussed his situation with Peter Davies, an expert in rehabilitation and employment. The pursuer's preference was to remain self-employed in his unit conversion business. In that way, he could work 3 or 31/2 days a week. He could arrange his own work-tasks and hours to suit his condition. By contrast, if he were to become employed, the pursuer could foresee problems because of his sleep difficulties, late rising in the morning, and his physical inability to work full-time or be on his feet.

[64 ] The pursuer said that if he could have some capital, he could remain self-employed (his preferred option). He could develop his unit-conversion business. He could have a shop in addition, selling spare parts. He could become a Corgi-registered gas installer. With an injection of capital, it might take about 6 months to a year to build up the business to produce a reasonable income of approximately £12,000 to £15,000 per year. Without such capital, it would probably take about 5 to 7 years to achieve that income.

[65 ] The pursuer stated that if his business failed, he had no idea what employment he would look for. He would prefer to do the sort of work he did in Cabervans and Macnroe Conversions. He had considered other options, such as working as a Health and Safety Officer. He had carried out some health and safety work as a storeman in the army. However any health and safety qualifications which he had obtained in the army were not valid in civilian life. Accordingly he would need some form of training. Because of his physical problems, he would probably have to work part-time.

[66 ] The pursuer considered that, but for the complications following upon the varicose vein operation, he would have had much better employment prospects on his discharge from the army. He would have been able to work as a labourer, or in health and safety, or in some sort of administrative work.

[67 ] At the date of the proof, the pursuer's physical problems remained the same, although the band of numbness running down his leg had decreased slightly in width. He continued to experience discomfort and pain in his right lower leg. The pain could interfere with his sleep. He was not taking any medication or receiving pain management or physiotherapy. He continued to take cannabis for pain relief. He was unable to stand holding his baby son for more than 15 minutes.

[68 ] (b) Medical opinions about the pursuer's condition

Professor Ruckley examined the pursuer on 3 September 2002 and 22 August 2003. In his report dated 29 September 2003, he concluded:

"6.8 There is no doubt that the pursuer has considerable genuine discomfort in his leg. The condition of his leg has preoccupied him and made him depressed, and has had a major impact upon life in terms of his ability to work, his social circumstances, and his morale - although he states that the latter has improved lately.

6.9 The symptoms of nerve injury and his level of disability have remained relatively constant since the operation. At this stage I would not expect surgical intervention to achieve any significant or lasting improvement. There is no alternative curative medical therapy. Drug treatment has the effect of damping down his discomfort to some extent, but the long term consumption of drugs acting on the nervous system, other than mild analgesics, is not advisable ... The pursuer is aware that he has to come to terms with living with the condition."

[69 ] Dr. James Campbell, consultant in musculo-skeletal medicine with particular expertise in pain problems, considered that the pursuer had a chronic neuropathic pain following a nerve injury. Such pain involved shooting pains; mechano-sensitivity which meant that touch in the area of the neuroma fired off nerve impulses; alodynia (when normal touch sensation was experienced as pain); hyperalgesia (an exaggerated response to what would normally be painful); and spasms (a reflex motor effect of pain). The prognosis was poor, and the available drug treatments were not entirely satisfactory. The pursuer was likely to have continuing pain, aggravated by mechanical stimulation. The clinical situation was now stable, with no likelihood of future deterioration, but equally little prospect of improvement. As the pursuer had chronic neuropathic pain, he would have some restrictions on future employment prospects. Such pain tended to be mechano-sensitive, so that movement of the affected limb (and especially impact) would tend to aggravate the symptoms. The pain would prove distracting in many circumstances. Accordingly the pursuer could not reliably pursue any occupation involving prolonged driving or standing or walking. It was highly unlikely that the neuropathic pain would resolve. The pursuer's pain tolerance was variable, and would be influenced by his psychological state. The pursuer's pain and disability should be regarded as permanent. In cross-examination, Dr. Campbell agreed that the pursuer had claimed that he "had not worked since the army" (thus failing to inform the doctor that he had in fact worked for two years full-time and over-time with Cabervans). Dr. Campbell therefore accepted that it was possible that the pursuer might be able to accomplish more than he had led the doctor to believe. However Dr. Campbell added that ability to work was affected by mood. All chronic pain sufferers experienced depression. Pain which disturbed sleep was quite significant, and an inability to sleep tended to aggravate depression.

[70 ] Dr. Burley, consultant in psychological medicine, considered that the pursuer remained more prone to depressive symptoms. That would impact on his ability to maintain employment. If the pursuer became depressed, his motivation would diminish, his concentration would be poorer, and he would not function fully in the work environment. In cross-examination, Dr. Burley accepted that the pursuer had many problems (his litigation with the army, his matrimonial problems, problems relating to contact with his children, the loss of his job with Cabervans). However it was Dr. Burley's opinion that while the pursuer could have had some depressive symptoms as a result of those events even without his injury, they would not have been of the same extent or severity as he in fact suffered. Motivation to work was important, and the fact that the pursuer had held down a job for two years with Cabervans boded well for his future employment prospects. However in re-examination, Dr. Burley confirmed that in his view, a person suffering from depression was much less likely to obtain and maintain work.

[71 ] (c) Employment and financial opinions

Ian Allan Sim, chartered accountant, gave an analysis of the financial position of the pursuer's business, Macnroe Conversions. The overall profit from the business for the period from September 2003 until April 2005 was £5,518. The pursuer's business had not done well during the months leading up to the proof. There had been no work. The business was not currently making a profit.

[72 ] Peter Davies, employment and rehabilitation expert, interviewed the pursuer on 14 July 2003 and gave the following opinion:

"6.1 There is little doubt that Mr. Macauley has experienced difficulties which limit the type and amount of work that he can do. He has some physical restrictions as set out in the medical reports, and does experience bouts of low mood. Nevertheless as his time with Cabervans shows, Mr. Macauley probably has a residual working capacity. He did not find the work with Cabervans particularly satisfactory and it is likely that with retraining he could be helped into more suitable employment.

6.2 In general terms though, Mr. Macauley is disabled and disadvantaged in the labour market. This is because he has physical restrictions which limit what he can do, some psychological problems which leave him with low mood and difficulties with motivation because he has been unable to pursue his army career and is no longer allowed to drive. The latter is potentially very restricting for a person of his age as it limit the jobs available to him to those accessible by public transport ..."

[73 ] The pursuer had advised Mr. Davies that he might try to work in the health and safety field, or in a job similar to the one he did with Cabervans. In Table 8 of his Supplementary Report dated 12 January 2005 (as adjusted during his evidence to remove the "stores" element) Mr. Davies gave a range of average pay-levels in health and safety representing what the pursuer might have earned but for his injury. In particular, Mr. Davies gave evidence that during 1998 to 2004, but for his injury, the pursuer might have expected to earn £14,916 net per annum, and in 1995, £17,116 net per annum.

Submissions

Submissions for the pursuer

[74 ] The pursuer originally alleged two grounds of fault against the defender, namely (i) negligence in the conduct of the operation itself, and (ii) negligence in the care following upon the operation. However the pursuer abandoned the second category, and the sole ground of fault founded upon was the conduct of the operation. The pursuer made no case based on lack of informed consent.

[75 ] Senior counsel explained that the pursuer did not rely upon res ipsa loquitur. The pursuer's position was that one or other of the events averred in Article 7 must have occurred, namely: "(a) an initial incision so deep as to have severed or otherwise damaged the nerve; (b) the cutting of or into the nerve during the operation as a result either of (i) a failure to see it or (ii) a failure to wield the surgical instruments with reasonable care; or (c) inadvertently or carelessly gripping onto the nerve with the forceps or similar instrument when using that instrument to grip the vein." Senior counsel submitted that it did not matter which of (a), (b) or (c) had happened, as each option imported negligence. Counsel then developed the pursuer's submissions as follows:

[76 ] Causation

Five causes were posited: (a) cutting; (b) crushing; (c) incorporation in a ligature; (d) traction (the pulling down of the stripper stretching the nerve beyond its elasticity); and (e) avulsing a side-branch (or branches) of the nerve while pulling the stripper. Causes (a), (b), and (c) involved negligence; (d) and (e) did not. If the pursuer were able to satisfy the court that cause (a) had occurred, then the pursuer succeeded. If however the court concluded that cause (e) had occurred, the pursuer failed. There was also an intermediate position: if the court was left in some uncertainty, and concluded on a balance of probabilities that one of causes (a), (b) or (c) had occurred, but not causes (d) and (e), then the pursuer did not have to prove precisely which of (a), (b) or (c) had been the cause, and the pursuer succeeded. If, on the other hand, the court concluded that (a), (b), (c) or (d) were possible causes, the pursuer's case failed because option (d) did not involve negligence.

[77 ] Against that background, the court was invited to conclude that the weight of the evidence pointed to the formation of a neuroma. The accompanying pain suggested a neuroma causing considerable disruption to the great saphenous nerve, and therefore a neuroma more likely to be sited on the trunk of the nerve, rather than a branch. For example, the evidence of Dr. Campbell was that there were not enough nerve fibres in a branch to give rise to painful consequences. On a balance of probabilities, therefore, the pursuer had suffered an injury directly to the trunk of the great saphenous nerve, in the vicinity of the surgical scar, which led to the formation of a painful neuroma and to sensory disturbance down the trunk of the nerve.

[78 ] Professor Ruckley, in his evidence in court and in paragraph 3.4 of his report, had posited the most likely causes of the formation of the neuroma as cutting, crushing, and incorporation in a surgical ligature. He could not say which of the three had in fact occurred, although he favoured cutting as the mechanism. Miss Myles had postulated five possible causes, three of which she regarded as probable (namely crushing, cutting and ligation). She could not say which of the three had in fact occurred. Accordingly her evidence was effectively the same as Professor Ruckley's.

[79 ] Senior counsel submitted that Mr. Corner's preferred theory of traction damage caused by the stripper was not, on the evidence, a viable possibility. Professor Ruckley did not accept traction as a probable cause. Dr. Campbell could not envisage sufficient traction to achieve the result which occurred. Mr. Engeset did not favour stretching of the nerve as a cause. Mr. Quaba gave a graphic account of the sort of force required to damage a nerve by traction (not reflected in Mr. Corner's description of the operation). One was therefore left with the three possibilities advanced by Professor Ruckley.

[80 ] Notwithstanding Professor Ruckley's preference for cutting as the cause, senior counsel submitted that there was a very live possibility that the nerve had been caught up in forceps and crushed. In that context, the court was invited to prefer the evidence of Professor Ruckley, Dr. Campbell, and Mr. Quaba to that of Miss Myles and Mr. Engeset. The weight of the former's evidence favoured cutting or crushing, leaving ligation in a suture as a weaker probability (especially if soluble sutures had been used). However it might not be necessary for the court to reach a concluded view as between cutting, crushing, and ligation in a suture, as each, in counsel's submission, imported negligence, for the following reasons:

[81 ] Negligence

If the court accepted that the cause of injury was one of the three mechanisms of cutting, crushing or catching in a ligature, the objective realities of the injury forced one to the conclusion that Mr. Corner had not taken reasonable care. Mr. Corner himself seemed implicitly to accept that those three occurrences imported a lack of reasonable care. Reference was also made to passages in the evidence of Professor Ruckley.

[82 ] It was accepted that Mr. Engeset was a vastly experienced surgeon, who had performed many varicose vein operations. His comments were obviously worth attention. However Mr. Engeset postulated a non-negligent theory - the "side-branch" theory. Senior counsel contended that such a theory was not a probable one. Moreover Mr. Engeset accepted that inadvertent crushing or cutting of the nerve would be "clumsy". Although that was not a frank acceptance of the Hunter v. Hanley test, it was a step in that direction. While Mr. Engeset had stated in evidence that catching up a nerve in a ligature was not negligent, it was difficult to accept that evidence standing the views expressed by Mr. Corner, Professor Ruckley, Miss Myles and others. In any event, Mr. Engeset was of the view that cutting or crushing mechanisms were more likely, and to that extent his evidence-in-chief had been helpful to the pursuer.

[83 ] Senior counsel submitted that the pursuer's case stood or fell on the question of causation. Once causation had been established, the question of negligence could be resolved. The court was invited to find that the two or three causes outlined above were the likely causes, in which case the pursuer succeeded. The pursuer's first plea-in-law should be sustained.

[84 ] Quantum

(i) Past wage loss

Senior counsel for the pursuer invited the court to accept the evidence of the pursuer and his partner Elaine MacDonald. The pursuer's time-keeping was poor as a result of the disturbed sleep pattern caused by the nerve damage in his leg. The pursuer had nevertheless been able to remain employed by Cabervans for about two years, because he had developed coping strategies. He had found ways of working round his physical problems: for example, sitting to fit out a van, or lying under a van, rather than standing all day; and getting his colleagues to help him. By contrast, a factory job would require him to be on his feet all day. Thus the pursuer's coping strategies could not necessarily be transferred to other employments. The pursuer's physical problem, and his tendency to depression, left him at a clear disadvantage on the labour market, although the pursuer had a capacity for a certain type of work.

[85 ] The pursuer had not acted unreasonably in starting up his own business rather than trying to find employment. His decision had to be judged in the circumstances prevailing at the time, and not with the benefit of hindsight. The pursuer could not have known that the business would run into difficulties.

[86 ] Counsel submitted that, but for the outcome of the varicose vein operation, the pursuer would have come out of the army, fully fit, in early December 1997. On a balance of probabilities, he would have obtained employment by 1 May 1998. The level of income which he would have received from 1 May 1998 until the date of the proof would have to be assessed on a broad axe basis, as the pursuer had no clear idea what sort of work he would have undertaken in that hypothetical situation. The employment expert Mr. Davies had initially provided figures for likely earnings in employment categories such as health and safety, and storekeeping. Ultimately however Mr. Davies had removed the storekeeping element from his calculations, acknowledging that the pursuer's work as a storeman was wholly attributable to his post-operative condition. Mr. Davies estimated that the pursuer would have earned £14,916 net per annum in each of the years 1998 to 2004, and £17,116 net per annum in 2005. His evidence provided a reasonable indication of the sort of work the pursuer would have been able to do, and the related income.

[87 ] The appropriate calculation for past wage loss was accordingly 7 years at £14,916, and 5 months at £17,116, resulting in a total of £111,543. From that figure fell to be deducted actual earnings from Cabervans (£22,968) and from the pursuer's business Macnroe Conversions (£5,518), leaving a total net past wage loss of £83,057 which would attract interest.

[88 ] (ii) Future wage loss

Counsel submitted that the question was whether the pursuer should continue with his business. The pursuer himself acknowledged that the business was currently unrealistic. However if the pursuer were to be successful in the present action, he would have some capital. He would be able to develop the business, for example by acquiring permanent premises including a shop, and/or converting and selling vehicles (as opposed to the conversion of vehicles for others). There was therefore no reason to take the view that the pursuer had failed to mitigate his loss.

[89 ] Thus counsel invited the court to assess the pursuer's future wage loss by allowing a further two years full wage loss (on the view that the pursuer would have to retrain, or that he would have to invest money in his business, and on either view would have about two years without income). Thereafter future wage loss could be assessed by adopting a continuing annual wage differential of £2,000 (taking the median figure in Mr. Davies' supplementary report dated 12 January 2005 Table 3 (Earnings in the Motor Trade), viz. £15,187 net per annum, and comparing that with the figure of £17,116 net per annum). Table 3 was chosen because it referred to the motor trade, and covered the sort of work which the pursuer could do. Also counsel had assumed that the pursuer would do better than a 31/2 day week. The continuing wage differential would reflect the pursuer's continuing disadvantage on the labour market. The appropriate multiplier in the Ogden Tables (Table 25, with a 2.5% rate of return) was 20.56, bringing out a total for future wage loss of £41,120. To avoid double-counting for the first two years of full wage loss, two years at £2,000 per annum fell to be deducted from £41,120, bringing out the figure of £37,120.

[90 ] Senior counsel added that a Smith v Manchester type of approach was less appropriate than a multiplier-multiplicand approach. The pursuer was not someone in employment, faced with a risk that he would lose that employment (the ratio of Smith v Manchester, subject of course to the dicta in Hill v Wilson, 1998 S.C. 81, at page 85). Moreover there was material available in the evidence to give the court sufficient guidance on wage loss.

[91 ] (iii) Total damages

Accordingly, the pursuer's damages should be valued as follows:

Solatium (agreed)	£15,000 (inclusive of interest to the date of decree)
Past loss of earnings to date of pursuer's discharge from army (agreed)	£1,000 (inclusive of interest to the date of decree)
Further past loss of earnings	£83,057 and interest to the date of decree
Future loss of earnings: 2 years retraining	£34,232
Future loss of earnings: remaining years	£37,120
Total	£170,409 and interest

Counsel concluded by inviting the court to sustain the pursuer's first and second pleas-in-law, and awarding damages to the pursuer as outlined above.

Submissions for the defender

[92 ] Senior counsel for the defender accepted that, on a balance of probabilities, the pursuer had developed a neuroma as a result of the varicose vein operation. The experts agreed that in 5 to 10 per cent of such operations, a patient might be left with transient or minor deficits: but chronic pain and other neurological deficits (such as the pursuer suffered) were uncommon.

[93 ] Causation

Senior counsel for the defender submitted that there was a lack of evidence about the cause of the pursuer's pain and neurological deficits:-

(i) There was no direct evidence about how the nerve came to be injured. No-one had offered evidence about what actually happened, either on the basis of contemporary accounts of the operation, or as a result of clinical investigation following upon the operation.

(ii) There was nothing in the medical literature about how the pursuer's rare result occurred. No-one had the clinical experience to be able scientifically to identify the cause of the pursuer's result.

(iii) There was no evidence explaining why the pursuer's neuroma gave rise to chronic symptoms, while other neuromas did not.

(iv) There was no evidence about the size or any other characteristic of the pursuer's neuroma. Expert evidence had established that a small neuroma could give trouble, while a large neuroma could be asymptomatic. The only scientific evidence was that the injury which caused a neuroma did not involve a complete transection of the main trunk of the nerve. The pursuer postulated certain mechanisms of injury in the alternative, and not cumulatively - in other words, that the cause must have been one of two (or more) favoured causes, both (or all) of which must involve negligence. However the pursuer's averments at page 19 B-D of the Record omitted certain mechanisms which had been mentioned in evidence, such as stretching of the nerve (traction); avulsion of a branch of the nerve possibly causing damage to the trunk; and incorporation of the nerve in a ligature, which was one of Professor Ruckley's options. While the court was entitled to have regard to that evidence, a comparison with the written pleadings suggested that the court should be wary of the pursuer's approach to causation.

(v) Against the background of the rarity of the pursuer's result, the prevalence of minor post-operative deficits, and the paucity of scientific evidence about asymptomatic neuromas, the court should be cautious about reaching conclusions based on evidence which was general and non-case-specific. The expert evidence suggested five possible causes of the injury which resulted in the neuroma. It might, or might not, be possible to list those five causes in order of likelihood, but such a listing did not disclose the actual cause of injury. The pursuer's counsel's approach involving possible causes was therefore highly abstract and in any event flawed. For example, if each of the causal options were given a 20 per cent likelihood, it was impossible to tell which was the actual individual cause. In any event, where a rare result had been achieved, as in the present case, one might conclude that an "unlikely" mechanism had come into play.

[94 ] Counsel then reviewed the evidence relating to causation. At the outset, he submitted that the best evidence about causation was that of the surgeon, Mr. Corner. If his evidence on causation were to be accepted (namely, that the nerve was stretched and damaged when the stripper was pulled out), that was the end of the pursuer's case, as even on the pursuer's analysis of the evidence, that cause did not involve negligence. But in any event, even if the court did not accept that submission, the pursuer had simply failed to prove that the pursuer's result had been caused by any mechanism which could be characterized as involving negligence. The pursuer's case was one of those rare cases where onus of proof was decisive. The exercise based upon five possible causes was a descent into the realms of speculation.

[95 ] Reference was then made to passages in the evidence of Mr. Corner, Miss Myles, Professor Ruckley, Mr. Engeset, and Mr. Quaba.

[96 ] Mr. Corner was best placed to assess how the damage occurred. It had not been suggested to Mr. Corner that he was lying or mistaken in suggesting stretching or traction of the nerve. Mr. Corner was a truthful and reliable witness. If the court accepted his evidence, that was the end of the pursuer's case.

[97 ] Miss Myles had given five possible mechanisms: crushing, inflicted for example by a clamp; stretching; partial cutting; inclusion in a ligature; and devascularisation (which was not relevant in the pursuer's case). She had been unable to say which mechanism had occurred. Also she confirmed that tiny neuromas could cause pain, whereas large ones could be painless. Significantly, Miss Myles supported Mr. Engeset in that she agreed that the mechanism of injury could involve a branch of the nerve.

[98] While Professor Ruckley had identified cutting, crushing, and incorporation in a ligature as likely causes, counsel disagreed with the pursuer's counsel's submission that the professor had identified one cause as being more likely than another. In cross-examination, Professor Ruckley had accepted (albeit reluctantly) that a nerve could be cut, crushed or incorporated in a ligature without achieving the result suffered by the pursuer. That was consistent with Miss Myles' evidence that a particular mechanism of injury did not point to a particular result. The mechanism which caused the 5 to 10 per cent category (with minor or transient deficits) could be the same mechanism which had caused the pursuer's condition. Accordingly it was impossible to distinguish between the two classes of case: yet the professor's evidence had been based upon the hypothesis that the result told one something about the mechanism of injury and about negligence. The professor had nevertheless accepted the theoretical possibility of an asymptomatic neuroma. It was therefore inappropriate to draw conclusions about the mechanism of injury, or about fault, from the mere existence of a neuroma.

[99 ] Mr. Engeset considered it most likely that the stripper had pulled out a side-branch of the saphenous nerve, something he had seen happening on many occasions. A neuroma might (or might not) form as a result. Counsel submitted that Mr. Engeset's evidence was compelling. It was based on his empirical experience over many years. It was also consistent with Miss Myles' evidence. Their evidence provided a positive basis upon which the court could make a finding about what had occurred, even if the court took the view that Mr. Corner was wrong in his preferred explanation.

[100 ] Mr. Quaba accepted a partial cutting of the nerve, a severe crushing, or a tight ligature, as possible causes. He ruled out damage to a branch of the nerve. He was doubtful that traction occurring when the stripper was pulled down could cause the damage. The court should be slow to dismiss Mr. Corner's evidence on the basis of Mr. Quaba's evidence. Mr. Corner had carried out about 2,000 varicose vein operations, whereas Mr. Quaba (as he himself acknowledged) was not a vascular surgeon. Mr. Corner was in a better position than any other surgeon to appreciate the degree of force which had actually been applied during the operation. His evidence should be preferred to Mr. Quaba's.

[101 ] In conclusion, senior counsel submitted that (i) the best evidence of what happened was the positive evidence relating to causation given by Mr. Corner, which, if accepted, resulted in the pursuer's case failing; (ii) alternatively, the court might reject Mr. Corner's evidence, but accept Mr. Engeset's evidence, in which case the pursuer failed; (iii) a further alternative was a conclusion that the pursuer had simply failed to prove causation. In each case, there would be failure to prove a cause imputing negligence, and the defender would be entitled to absolvitor.

[102 ] Negligence

Senior counsel for the defender submitted that if the pursuer failed to prove the mechanism of injury, he would fail on liability. Accordingly liability and causation were linked. In any event, the pursuer had not proved any particular act or omission said to be negligent. That made it difficult for him to succeed. Nor had there been any evidence of a practice or procedure which the surgeon should have followed, but had not (although it was accepted that such evidence was not a sine qua non in medical negligence cases). None of the evidence upon which the pursuer relied had been properly developed in terms of the test set out in Hunter v. Hanley, 1955 SC 200.

[103] Professor Ruckley had suggested that the pursuer's outcome was rare because surgeons took reasonable care to avoid cutting or otherwise damaging nerves. However that reasoning broke down as:-

(i) There was evidence that asymptomatic neuromas could be caused by an inadvertent nick, possibly in many cases.

(ii) There had been evidence that in 5 to 10 per cent of varicose vein operations, the patient was left with a minor deficit. It was impossible to distinguish between the 5 to 10 per cent category and the pursuer's category by means of the mechanism of injury. In such circumstances, the professor's reasoning about sub-standard care became untenable.

[104 ] Counsel then referred to Mr. Engeset's evidence. Contrary to the view expressed by Professor Ruckley, Mr. Engeset was of the opinion that it was not necessarily negligent to incorporate the nerve in a ligature. Standing Mr. Engeset's position, it was difficult for the court to conclude that incorporation of the nerve in a ligature would amount to negligence, for several reasons: first, Mr. Engeset and Professor Ruckley were of equal eminence; secondly, in the light of Mr. Engeset's evidence, it could not be said that no ordinarily competent vascular surgeon exercising reasonable care and skill would inadvertently have incorporated a saphenous nerve in a ligature. For the pursuer's "(a), (b) or (c)" structure to remain intact, the court would have to reject Mr. Engeset's evidence on that point.

[105 ] Mr. Engeset had not said that it would have been negligent for a surgeon to have incorporated a nerve in a ligature in a case which resulted in a painful neuroma such as that suffered by the pursuer. To say that a surgeon was "clumsy" was not to say that he was guilty of medical negligence. There was no evidence that no ordinarily competent vascular surgeon exercising reasonable care and skill would ever make the mistake of tying a ligature around the saphenous nerve. Accordingly Mr. Engeset's evidence could not be used to support Professor Ruckley's positive assertion of negligence.

[106 ] Mr. Engeset had also commented on inadvertent crushing of the nerve as being indicative of a lack of care. Senior counsel for the defender submitted that, while that observation came closer to the proper test for negligence, it was still not squarely within the test as outlined in Hunter v Hanley. Also Mr. Engeset had been focusing on one particular aspect of the operation, namely stopping the bleeding.

[107 ] Counsel for the pursuer had founded most upon Mr. Engeset's evidence that it would be "incredibly clumsy" to cut the nerve. The defender's response to that was two-fold: (i) the pursuer had simply failed to prove that cutting had caused the injury; (ii) Mr. Corner had said with confidence that he had not cut the nerve.

[108 ] Senior counsel reiterated that the best and most direct source of evidence about any lack of care was the surgeon who performed the operation. Mr. Corner wholly rejected any allegation that the outcome was due to failure on his part to exercise reasonable care. There had been no criticism by the pursuer's witnesses of the way in which the operation had been performed. No-one had criticised any move or phase of the operation. Ultimately, if the court reached the stage of determining the question of negligence, Mr. Corner was one of the witnesses to take into account. If the court took a favourable view of Mr. Corner, the court was entitled to determine the question of negligence on the basis of his opinion alone.

[109 ] In conclusion, senior counsel for the defender invited the court to repel the pursuer's first plea-in-law, to sustain the defender's second and third pleas-in-law, and to grant decree of absolvitor.

[110 ] Quantum
Senior counsel for the defender did not challenge the detail of the figures submitted by the pursuer's counsel. Nor did he submit that the pursuer had failed to mitigate his loss by starting up his own business. However he submitted that it was in principle inappropriate to use the multiplier-multiplicand basis. The pursuer's situation was analogous to a case where the pursuer was unemployed at the date of the accident, but had been in employment prior to that time: cf. Hill v Wilson, 1998 S.C. 81. The pursuer's claim was best categorised as (i) impaired earning capacity or disadvantage on the labour market: cf. Hill, cit. sup., at page 85D. An alternative approach would be (ii) treating the pursuer's claim as a lump sum wage loss (rather than a computed loss of wages): cf. Hill, cit. sup., at page 85G-H. Counsel submitted that a lump sum (incorporating both past and future loss) was the appropriate approach: cf. Bennett, Personal Injury Damages in Scotland (4^th ed.) pages 45-46, footnotes 49-51.

[111 ] Counsel submitted that the pursuer had no vocational qualifications or experience. He had frequently changed his employment before joining the army. It was reasonable to infer that the pursuer had joined the army because he had no other career open to him. The pursuer was discharged from the army with effect from 5 December 1997 because he failed a drugs test. It could not therefore be said that as a result of his injuries, the pursuer had lost income which he would otherwise actually have earned in the army.

[112 ] The court should not accept the pursuer's assertion that, had he been discharged from the army in 1997 without any injury, he would have worked in the health and safety field rather than as a labourer. The pursuer's evidence was generally self-serving, at the expense of reliability (and in some respects, credibility). Also the pursuer had told the employment expert Peter Davies that he had not known what he would have done had he left the army fully fit. Finally, there was no reason why the pursuer could not have pursued a career in health and safety, had he really wanted to do so.

[113 ] The pursuer's continuous full-time employment with Cabervans from August 1999 to September 2001 demonstrated his fitness to do physically demanding work, despite his injury.

[114 ] The pursuer's employment expert Peter Davies said that if the pursuer was fit to be a storeman in the army, he was fit to be a full-time civilian storeman. Thus although there was some loss of earning capacity, the pursuer was able to do the store-keeping jobs, and store-keeping was a line of employment into which the pursuer might well have gone even without the injury.

[115 ] On his own evidence, the pursuer had not been looking for paid employment since September 2003 when he went into business on his own account. The business was failing for reasons unconnected with the pursuer's injury: for example, insufficient work, and low turnover. During the period January to July 1995 the pursuer was unable to bring any new work into the business. It was a reasonable inference from the evidence of Peter Davies that there was paid employment available to the pursuer in the Greenock area, as the pursuer was fit to work as a storeman, or to work in the public sector.

[116 ] In the context of wage loss or employability, senior counsel invited the court, whenever there was a conflict between the evidence of the pursuer and the evidence of others, to prefer the evidence of others. The pursuer's evidence tended to be self-serving, and for that reason unreliable or misleading.

[117 ] Senior counsel ultimately invited the court to award the pursuer a lump sum of £50,000 to reflect both past and future wage loss. Thus total damages would be:

Solatium (agreed)	£15,000 (inclusive of interest to the date of decree)
Past loss of earnings to date of pursuer's discharge from army (agreed)	£1,000 (inclusive of interest to the date of decree)
Lump sum representing both further past and future loss of earnings	£50,000
Total	£66,000

Opinion

Credibility and reliability

[118 ] I had no reason to doubt the credibility of any of the witnesses. So far as reliability of witnesses was concerned, the pursuer was not always wholly accurate about sequences of events, dates, and what had occurred during a particular medical event or consultation. That was understandable. Less understandable was his apparent omission to tell Dr. James Campbell that he had worked for Cabervans from September 1999 until late 2001. However I did not place much weight on that omission, as in my view it was clear from the evidence as a whole that the pursuer, although capable of some work, was significantly restricted in the sort of work which he could do.

Objections to lines of evidence

[119 ] Medical facts, opinions and theories emerged at various stages in the evidence. Not all had been fully pled on record, or put to the relevant witnesses for comment. At times counsel took objection to the line, but on other occasions counsel (strictly speaking entitled to object) did not object. It seemed to me that the course which the proof took reflected the fact that many of the medical witnesses had given continuing thought to what might have occurred during the pursuer's operation. As a result, some witnesses produced new ideas or aspects of the case in the course of the proof itself, making it difficult for the lawyers to adhere to strict rules of evidence and procedure. For those reasons, I now formally rule as admissible all the evidence which I allowed subject to competency and relevancy.

Causation

[120 ] While I accept Mr. Corner as a credible and reliable witness, it seemed to me, on a consideration of the evidence as a whole, that a vascular surgeon might be unaware of damage inflicted inadvertently to the saphenous nerve in the course of a varicose vein operation. For example, on the evidence it is quite conceivable that a surgeon might inadvertently inflict a small nick or cut to the nerve, resulting in the development post-operatively of a small but troublesome neuroma. Thus while I accept Mr. Corner's evidence in its entirety, I am not prepared to reach a view about the mechanism of injury on the basis of his evidence alone, without some assistance from another source of evidence (such as a clinical sign or symptom tending to support one mechanism of injury rather than another). No such assistance is available in this case. I am not therefore satisfied, on a balance of probabilities, that the traction mechanism of injury outlined by Mr. Corner was the mechanism which in fact caused the pursuer's injury. Nevertheless I accept the mechanism as a possible cause.

[122 ] Professor Ruckley was an equally eminent witness. In the course of his evidence, he frankly accepted that it was not possible to say what had in fact occurred to cause the pursuer's injury. His preferred hypotheses were (a) cutting, (b) crushing, and (c) incorporation in a ligature, for the reasons he gave. He did not accept Mr. Corner's traction theory - cause (d) - for the reasons noted in paragraph [23] above. Further, the professor did not have an opportunity to comment upon Mr. Engeset's side-branch theory - cause (e). For present purposes, I shall assume that he would not have accepted the side-branch theory as a realistic possibility. Thus the professor invited the court to focus upon causes (a), (b) and (c). However I have to take into account the whole evidence in the case. The traction theory received some support from Miss Myles, consultant neurosurgeon, and from Mr. Quaba, consultant plastic surgeon. The side-branch theory received support from Miss Myles. Bearing in mind the calibre and experience of those witnesses, I am not prepared to exclude those theories as possible mechanisms of injury in the pursuer's case.

[123 ] The court is therefore left with five possible mechanisms of injury, namely (a) cutting, (b) crushing, (c) incorporation in a ligature, (d) traction caused during the pulling of the stripper, stretching the saphenous nerve beyond its elasticity, and (e) avulsion of a side-branch (or side-branches) of the nerve during the pulling of the stripper.

[124 ] Applying the standard of proof applicable in civil cases (i.e. a balance of probabilities) I am unable to find a sound reason for preferring one of those five hypotheses to the others. Accordingly the actual mechanism of injury which caused the pursuer's injury has not been established.

Negligence

[125 ] It was accepted that mechanisms (d) and (e) do not import negligence. That being so, the pursuer has proved that the mechanism of injury might, or might not, have involved negligence. As senior counsel for the pursuer very properly conceded, in those circumstances, the pursuer cannot succeed.

[126 ] However even if the two possible mechanisms (d) and (e) were to be excluded from consideration, the pursuer would not in my view succeed, for the following reasons. There was a conflict of opinion between Professor Ruckley and Mr. Engeset as to whether or not cause (c) - incorporation of the nerve in a ligature - could be regarded as negligent. Professor Ruckley took the view that it was negligent; Mr. Engeset gave his opinion that it was not. Standing Mr. Engeset's evidence, it cannot be said that no ordinarily competent vascular surgeon acting with reasonable care and skill would inadvertently incorporate the saphenous nerve in a ligature. Accordingly the high test of professional negligence could not be met even if (contrary to my view) the possible mechanisms were restricted to causes (a), (b), and (c).

[127 ] In the circumstances, it is perhaps unnecessary for me to give a view on the defender's submission that the pursuer did not lead evidence satisfying the test in Hunter v. Hanley, 1955 SC 200. Obiter, I agree with senior counsel for the defender that the evidence led by the pursuer did not satisfy the high test set out in Hunter v. Hanley. Accordingly I was not satisfied on a balance of probabilities that Mr. Corner had been proved to have done or omitted to do something which no ordinarily competent vascular surgeon exercising reasonable care and skill would have done or omitted to do.

[128] In the result, I shall grant absolvitor for the reasons given above.

Quantum of damages

[129 ] It is nevertheless necessary for me to give a view on damages. Damages for solatium were agreed at £15,000, inclusive of interest to the date of decree. Damages for past wage loss to the date of the pursuer's discharge from the army were agreed at £1,000, inclusive of interest to the date of decree. The contentious issues were (i) further past wage loss, and (ii) future wage loss.

[130 ] In my view, there is no doubt that the pursuer suffered a significant leg injury as a result of the rare complication caused by the varicose vein operation. Quite apart from the chronic pain and disability which the pursuer suffers, the injury has left him restricted in the sort of employment open to him. He is unable to drive, work on ladders, lift heavy weights, stand for long periods, or walk long distances. His chronic pain affects his mood, his sleep, and his motivation. While the pursuer's pre-operation employment record was not a settled one, and while it does not provide an easy measure for the quantification of damages, I do not accept the defender's submissions that the pursuer went into the army because he was not able to do anything else. In my opinion, the pursuer's pre-operation casual work and performance in the army, taken with his post-operation work with Cabervans, indicates employment potential. He had some work skills, and an ability to learn and to apply himself.

[131 ] I do not therefore accept that the pursuer's pecuniary loss would be adequately reflected by a lump sum loss of employability award. The evidence in my view established that the pursuer, as a direct consequence of the injury to his leg, has suffered and will suffer a continuing annual wage differential, all as outlined by counsel for the pursuer. I found the evidence relating to employment such as health and safety and garage work to be useful in that it gave an indication of the level of earnings which the pursuer could have expected to achieve but for the problem with his leg. I agree with the approach suggested by counsel for the pursuer, as more properly reflecting the pursuer's loss i.e. that on leaving the army in December 1997, fully fit, the pursuer would have found employment by May 1998; and that he should be entitled to past wage loss as calculated in paragraph [87] above, namely £83,057 with interest.

[132 ] In relation to future wage loss, again I accept that the multiplier-multiplicand approach more accurately reflects the pursuer's continuing loss. An annual wage differential of £2,000 is reasonable in all the circumstances, and can be supported by the evidence given by Mr. Davies, as outlined in paragraph [89] above. On the pursuer's presentation, the appropriate multiplier would appear to be 20.57 in Table 9 of the 5^th edition of the Ogden Tables (the equivalent of the multiplier of 20.56 in Table 25 of the 4^thedition of the Tables, to which counsel referred). It might be argued that the multiplier requires to be modified in accordance with Table B (Contingencies other than Mortality) and paragraphs 35 to 39 of the Explanatory Notes to the 5^th Edition. However no such argument was presented by the defender, the focus of the defender's challenge being the unsuitability of the multiplier-multiplicand method. Accordingly had damages been awarded, I would have adopted the approach proposed by counsel for the pursuer in paragraph [90] above, but using the 5^th edition of the Ogden Tables. I would therefore have awarded damages as follows:

Solatium	£15,000 (inclusive of interest to the date of decree)
Past loss of earnings to date of pursuer's discharge from army	£1,000 (inclusive of interest to the date of decree)
Further past loss of earnings	£83,057 and interest to the date of decree
Future loss of earnings: 2 years retraining	£34,232
Future loss of earnings: remaining years	£37,120
Total	£170,409 and interest

Decision

[133 ] I shall repel the pursuer's first plea-in-law, sustain the defender's second and third pleas-in-law, and assoilzie the defender from the conclusions of the action.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MaCauley v. Advocate General For Scotland [2006] ScotCS CSOH_106 (12 July 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_106.html Cite as: [2006] CSOH 106, [2006] ScotCS CSOH_106

Scottish Court of Session Decisions