Plumber awarded £540,000 damages after health board admits liability over treatment of arm injury

Court of Session Outer House
Court of Session Outer House

A plumber who injured his arm while playing football over 16 years ago has been awarded more than £540,000 in damages after a Scottish health board admitted liability over its “negligent diagnosis and treatment” of the injury.

A judge in the Court of Session ruled that, had surgical repair of the injury taken place earlier, the pursuer would have made a “full or nearly full recovery” and been able to return to work “within six months”.

Lady Carmichael heard that that pursuer, Darren Conquer, raised an action against the defenders, Lothian Health Board, after medical staff initially failed to perform an ultrasound scan of his right, dominant, arm when he injured his elbow during a football match on 30 July 2003.

The pursuer underwent an operation on his right arm two days later, but he continued to suffer pain for six or seven months and was unable to return to work.

He had an operation to repair his right biceps tendon in June 2004, but he continued to suffer pain due to an inadvertent division of a nerve in his forearm, and eventually had to have a reconstructive operation on his right distal biceps tendon in November 2009.

‘Liability admitted’

The pursuer, an entrepreneur who had a number of plumbing-related business interests, sued the defenders in respect of “negligent diagnosis and treatment” of the injury, and the defenders admitted liability to make reasonable reparation to the pursuer for any loss, injury and damage sustained by him as a consequence of the failure to perform an ultrasound scan of his right upper arm by 3 September 2003.

They also admitted that had such an ultrasound scan been carried out it would, on the balance of probabilities, have disclosed a right distal biceps tendon rupture, and surgical repair of the ruptured tendon would have been undertaken within a few days.

The pursuer received two payments of interim damages totalling £180,000, but the full quantification of damages was complicated by the fact that during the period since September 2003 the pursuer had a number of other injuries and medical conditions that required treatment.

He had conditions or injuries affecting his left arm, both shoulders, his spine, and his gastro-intestinal tract.

The defenders claimed that, for at least parts of the period since September 2003, the pursuer had been unfit for work for reasons unrelated to their negligence.

The pursuer accepted that the conditions and injuries affecting his shoulders, spine, and left arm were not causally connected to the negligent treatment of his right arm, but he maintained that his gastro-intestinal problems were connected, because they resulted from the ingestion of opioid medication taken to treat pain in his right arm.

The issue was further complicated by the pursuer’s work history both immediately before and in the period since September 2003.

‘Future financial loss’

The judge ruled that the pursuer had sustained and will continue to sustain financial losses as a result of the physical and psychological consequences of the surgery not having been undertaken at that time, but she rejected pursuer’s claim that the protracted gastro-intestinal illness from 2012 was caused or materially contributed to by the admitted negligence.

In a written opinion, Lady Carmichael said: “I am satisfied on the balance of probabilities, that had surgical repair of the pursuer’s right distal biceps tendon rupture been undertaken within a few days of 3 September 2003, the result would have been a full or nearly full recovery of function in the right arm such as to permit the pursuer to return to work within six months.

“I am satisfied also that the pursuer has clinically significant anxiety and depression of which the principal cause is the circumstance that he has not regained function in his right upper limb, with the associated and prolonged pain and discomfort, and inability to pursue his career in the way that he otherwise would have done.”

The judge valued solatium at £60,000 and allocated one half to the past, plus interest of £15,922.19. She assessed the pursuer’s past wage loss at £13,873, plus interest of £5,000, while his future financial loss was calculated as amounting to £447,602. The court therefore pronounced decree in the sum of £542,397.19, inclusive of the sum of £180,000 already received as interim damages.

© Scottish Legal News Ltd 2020

Other judgments by Lady Carmichael