NHS nurse awarded £88,000 in damages after developing tinnitus and PTSD from falling chisel head injury

About this case:

• Citation:
  [2025] CSOH 44
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Tracy Mcfadyean, who was employed as an orthopaedic nurse by the NHS, raised a personal injury claim against Renfrewshire Council, who employed the workers who caused the accident. Liability was accepted by the defender, with the action calling for a proof on the issue of quantum of damages.

The case was heard by Lord Braid, with Allardice, advocate, appearing for the pursuer and Smith, advocate, for the defender.

Fuzzy noise

On 6 October 2021, the pursuer, then aged 48, was in the garden of her brother’s house in Linwood, Paisley. At one point she bent down to wipe dirt off her shoe and felt something smash off the right side of her head. She had no memory of what happened immediately after the accident but after going back inside she phoned her husband, who collected her and drove her to hospital.

After receiving emergency treatment, the pursuer experienced intermittent sleep, confusion, an inability to speak the words she wanted to say, and pain in her right ear. At her husband’s insistence she returned to hospital, where an X-ray revealed a small fracture on the right side of her skull. A few weeks later, she was diagnosed with post-concussion syndrome. Although CT and MRI scans revealed no brain abnormalities, the pursuer continued to experience persistent headaches and developed tinnitus, which she described as a persistent fuzzy noise she experienced 24/7.

In their evidence, the pursuer and her husband described how she had gone from a laid-back, unargumentative person to someone who suffered from panic attacks and anxiety. None of the methods she had tried to mask or improve her tinnitus had worked, and she had developed symptoms of PTSD. While the NHS had supported her return to work, she transferred to a less stressful ward and reduced her hours, and she could no longer socialise at the same level she did before.

Counsel for the pursuer sought damages under solatium, disadvantage on the labour market, necessary services, and personal services. While it was accepted that her job was secure, she now found it more difficult to work in high intensity environments. For solatium, the correct approach was to have regard to the Judicial College Guidelines for brain and head injury as a single injury, and PTSD as a second.

The defender sought to treat the pursuer as suffering from three separate injuries rather than two, namely tinnitus, the skull injury, and PTSD. The claim for loss of employability was misconceived, as there was no real risk the pursuer would find herself on the labour market in the future.

Accurate picture of events

In his decision, Lord Braid said of the parties’ competing approaches to solatium: “As counsel for the pursuer submitted, the problem with not approaching the case in the way suggested by him is that there is no directly applicable guideline for the pursuer’s skull injury if it is not to be treated as a brain injury. A more positive reason for adopting his approach is that, although the contemporaneous medical records state that the pursuer suffered a head injury rather than a brain injury, [the medical] evidence was that at least one theory for the cause of the pursuer’s tinnitus was that there had been damage to the complex connections in the brain and in that respect the pursuer can be said to have suffered from a brain injury.”

He continued: “I agree with counsel for the pursuer that [JSC C3(A) brackets (c)(iii) and (c)(iv)] between them paint an accurate picture of the effect the accident has had on the pursuer - her concentration and memory have been affected, her ability to work is reduced, she is fatigued and there has been interference with her social life and leisure activities, all stemming from her tinnitus, which in turn stemmed from the severe blow to her skull. I would place the pursuer’s case at the top of the lower bracket/bottom of the higher one.”

Assessing the loss of employability argument, Lord Braid said: “I agree with counsel for the defender that this element of the claim has not been established. The pursuer said in terms that her job in the National Health Service is secure. There is no real risk that she will ever find herself on the labour market and consequently she has not been disadvantaged in that market as averred in the summons. Even if she were to leave her job, there was no evidence before me from which I could properly find that she would be at a disadvantage in finding a new job.”

He concluded on services: “It is hard to see the justification for a significant award when the pursuer is, as counsel for the defender pointed out, capable of herself performing valuable services as a nurse in the course of her employment. Further, if the pursuer, as expected, improves following CBT, her ability to resume more of the household tasks should increase. Nonetheless, I do accept that there is a services claim, mostly in the past but to a smaller extent in the future.”

Lord Braid therefore awarded the pursuer a total of £88,693, comprising solatium of £60,000 plus £8,963 of interest, and £20,000 for services.