Case Summary: Linda Shields

CASE SUMMARY

Ms Linda Shields was a 34-year-old leisure attendant from Livingston in Scotland when in 2001, she performed an assisted lift-out during an NPLQ training course, which she alleged injured her back. She was employed by Jarvis Hotels PLC as a leisure attendant at a hotel they owned. She was sent by her employers to undertake a course organised by a third party at the Commonwealth Pool, Edinburgh Leisure, in order to complete her RLSS UK National Pool Lifeguard Qualification.

The course lasted from Monday 15 October until Saturday 20 October 2001. The first five days were spent on training, and assessments took place on Saturday. The pursuer avers that she felt a particular strain on the afternoon of Wednesday 17^th October 2001 when she had to lift a heavy adult male out of the pool, and throughout the rest of the course, she was aware that she did some damage to her back but continued the course in the expectation that she sustained only a muscle strain.

She further avers that this accident was caused by the third party's breach of duty at common law by failing to provide her with proper training. She completed the course successfully. HHJ Macdonald heard the case. The pursuer, Ms Shields, was represented by Mr Campbell QC of Thompson’s Solicitors LLP. Dundas & Wilson LLP instructed Mr Anderson QC to represent the defender Jarvis Hotels PLC. Dundas & Wilson LLP instructed Mr Khurana (QC, 2018) to represent the Third Party, Edinburgh Leisure.

 

Linda Shields v Jarvis Hotels PLC and Edinburgh Leisure [2005] CSOH 104 (5 August, Outer House, Court of Session)

HHJ Macdonald QC said (para.):

[1]…There is no doubt that on the morning of Sunday 21^t October 2001, on rising from bed, she had symptoms consistent with a prolapsed disc. She had what she described as excruciating pain in her right calf, she lost control of her right leg and could not put it down, and also lost control of her bladder. When she attended her GP on Monday 22^nd October 2001 she complained of acute lower back pain on the right side with sciatica. She was thereafter off work until early February 2002 and has had continuing symptoms.

[2] The main question which arises is whether I am satisfied that the pursuer suffered any injury to her back at the Commonwealth Pool on the afternoon of Wednesday 17^th October 2001.

…Her evidence in chief was that she had pulled one of the men on the course out of the pool and she felt pain in her back in the evening. She thought she had pulled a muscle in her back. She felt something just after lifting a man who was six feet tall, not overly large but medium, a lot bigger than herself. She never said anything to anyone about it at the time. She was really fit, she had pulled a hamstring before, and she thought it was just a muscle. The pain which she experienced in the evening was in the right side of her lower back. She rubbed "Deep Heat" on the affected area. She was not in agony on the Thursday morning and attended the remainder of the course. She had not suffered from any previous back or leg problems.

…In cross-examination she said that she felt she had pulled a muscle when she walked down the poolside after lifting someone from the pool. She denied having provided different versions of the event over the years which had elapsed since.

[3] When first cross-examined, the pursuer also stated that she was "really fit" and that she would usually go to martial arts on a Monday and a Wednesday night but did not do so on the Monday and Wednesday night of the week of the course. Ms Shields denied that, during the week of the course, she had told someone she had "strained herself at judo the night before". The following provides a summary of Ms Shield’s account:  

Ms Shields - Well, normally, if I was doing other things, the course was between 8 and 5, and it's too tiring and ma martial arts usually starts at 7 o'clock, which would have been far too much for me.

Counsel - On that last point, how do you remember it was the Thursday (inaudible)?

Ms Shields - I don't remember (inaudible), I think it was the Thursday because I teach aquafit on a Wednesday night at Gracemount and I think we'd been talking about what we had done the night before. That's why Wednesday rings a bell for me, cause Wednesday night's the only thing (sic) I do that on, cause that's why it kind of rings a bell.

Counsel - Are you sure about that?

Ms Shields - Not 100% that it was the Thursday but it is kind of familiar. It is three years ago so...

HHJ Macdonald QC - Do you mean you were talking about what you'd been doing on the Wednesday?

Ms Shields - I think we mentioned what we'd been doing the evening before and I said that I had taught an aqua-aerobics class. 

When re-called at an adjourned diet of proof, the pursuer stated that she had not been attending martial arts since January of 2001 as she had been doing charity work teaching children self-defence. During the week of the course, she had not attended any martial arts courses or classes. She had been staying with her partner in Edinburgh all that week. She denied having made the statement attributed to her by Miss Annette Bruce. Miss Bruce, the trainer, said (para.):

Counsel - There's just one other thing. Ehm, did, you told us I think earlier that you, you chatted with some of the witnesses (sic) at lunchtime and with the pursuer Linda Shields. Is that right?

Miss Bruce - Yes.

Counsel - And she told you, I think, about her judo. Is that right?

Miss Bruce - Uh hu, yes.

Counsel -  Do you remember when that was?

Miss Bruce - I'm sure it was the Thursday. I think it was the Wednesday night that she'd been. I'm not 100% certain but I've just, I've got a feeling it was the Thursday, the day after the Wednesday night. I can't remember exactly but I do remember her talking about, cause we were talking about different sports that different people did and different interests and hobbies that other people on the course had. Cause it's quite an intensive course, you do get to know each other by the end of the week.

Counsel - Are you quite sure she said she had been to judo that week, supposing judo's a thing that she did?

Miss Bruce - No, she most definitely said that she'd been.

Counsel - Quite clear about that?

Miss Bruce - Yes.

HHJ Macdonald QC went on to say: 

That under cross-examination Ms Shields was unable to explain why she had not previously mentioned in evidence that she had not attended martial arts for nine months prior to the alleged incident. She denied having told Annette Bruce that she was at martial arts in the evenings but said that she probably told her she wanted to get back to martial arts. She did not know why she had not mentioned when she first gave evidence that she had been staying in Edinburgh during the week of the course.

Mr McMaster stated that he specifically asked the pursuer if she had injured her back during the course and she replied to him that she had not. When the pursuer's evidence-in-chief was put to him he responded: “She said nothing of the sort to me.”

I formed an extremely poor impression of Ms Shields as a witness. I did not find her to be generally credible and reliable and, in particular, I did not accept the account given by her in evidence of sustaining an injury to her back on the Wednesday afternoon when she pulled one of the men on the course out of the pool. The following are the reasons which cause me to take that view.

First, I did not accept her evidence (and also the statements to the same effect made by her to Miss McQueen and Mr McMaster) that she had not suffered from any back problems before going on the course on 15^th October 2001. Although the osteopath who treated her was not led as a witness, she accepted that all entries in his note other than the one about her previous low back pain were correct. I am well aware that an incorrect medical entry can be made as a result of a misunderstanding, but I cannot envisage how such a detailed entry as the one made by the osteopath in this case could have been made by error and I do not understand it ever to have been suggested that the osteopath deliberately made a false entry in his record. I find that the pursuer did tell her osteopath that she had had low back pain for several months and a niggle for many years and that she told him that because it was the truth.

Secondly, I am faced with two conflicting accounts from the Ms Shields, the one given by her to Mr McMaster, and the one given by her in evidence. I can find no reason why I should prefer the account given in evidence and reject the previously inconsistent account given to Mr McMaster. Indeed, there is a good reason for preferring what she said to Mr Master, namely, that if she had sustained the injury she claimed it is difficult to understand why she did not mention it to anyone at the time and how she was able to manage to continue with the course on the Thursday and Friday and undergo the assessments on the Saturday.

Thirdly, there were, as recorded above, variations in her accounts of the time when she first experienced pain.

Fourthly, I accept the evidence of Miss Bruce that the pursuer told her on the Thursday that she had been to judo on the Wednesday evening and reject the contrary evidence of the pursuer. I found Miss Bruce to be a sensible, pleasant and open person who was generally credible and reliable. The pursuer contradicted herself in the course of her evidence about the reason why she was not at martial arts on the Wednesday evening and I simply did not accept as truthful her evidence that she was not at martial arts or judo on the Wednesday evening. If the pursuer first felt back pain on the Wednesday evening, as she told Mr McMaster and stated in evidence-in-chief, the potential significance of her attendance at judo or martial arts on the Wednesday evening is obvious.

As I am not satisfied that the pursuer sustained an injury as averred on Record her action must fail.

 

Liability

HHJ Macdonald QC went on to state that even had he accepted that the pursuer sustained an injury on the Wednesday afternoon as averred on Record, he would not have been satisfied that liability had been established against the third party:

In short, she claimed that she had not been properly trained how to pull a casualty out of the water and, in particular, on how to stand and bend her legs. She accepted that at the first class she had been given a copy of a manual entitled "The Lifeguard" (no 20/2 of process), which is a national publication produced by the Royal Life Saving Society UK. Her evidence was contradicted by her own witness, Carol Ann Low, whose evidence was that the instruction given for lifting a casualty out of the pool was to bend your knees, crouch and hold him with your hands and that the students on the course were asked to read the whole manual, which on pages 43 and 44 sets out the safe procedure for casualty recovery and exits from the water.

Her evidence was also firmly contradicted by Miss Bruce, who said that she gave sections of the manual to be read in the evenings as homework and thought that section 6, containing pages 43 and 44, would have been homework on the second evening. The safety points mentioned in that passage were reproduced as bullet points on an overhead projector and she went through them with the students before they did the first lift out of the water on the Monday afternoon, the lift being first of all demonstrated by her and two colleagues.

It was simply not true that the pursuer had not been told to bend her legs as Miss Bruce had always bent her legs when doing a lift since she was 14 and if she saw someone not doing a lift properly she would say "Bend your knees, don't bend your back".

It is clear to me from the evidence of Miss Bruce that this course was run to the national safety standards of the Royal Life Saving Society UK and that the third party had in force a safe system for the manual handling operations involved in the course. Miss Bruce pointed out that if the pursuer's lifting technique was unsafe she would not have passed the assessments on the Saturday.

Christopher Hayne, a chartered physiotherapist and registered ergonomist, gave evidence strongly favouring the pursuer on liability, but his evidence was dependent upon the evidence of the pursuer being accepted, and even he stated that he would not criticise the safety guidelines set out on page 44 of section 6 of the manual.

As I accept the evidence of Miss Bruce about the training and supervision provided and reject the evidence of the pursuer on these points, I would have held that liability had not been established against the third party.

 

Causation

HHJ Macdonald QC said at [9]:

Had Ms Shields established breach of duty by the third party, it would have been necessary for me to consider whether the evidence established a causal connection between the back pain sustained by her on the Wednesday and the prolapsed disc which she suffered the following Sunday.

In light of the views I have taken on the facts and liability, I think I can record my view on causation briefly. I have already recorded my view that the pursuer was telling the truth when she told her osteopath that she had had lower back pain for several months and a niggle for many years. I would have been inclined to accept what I considered to be the authoritative evidence of Mr McMaster on the issue of causation.

I would therefore have reached the conclusion that the pursuer had failed to establish any causal connection between back pain suffered by her on the Wednesday and the prolapsed disc on Sunday.

 

Damages

HHJ said at [10]:

In terms of the joint minute, it was agreed between the pursuer and the third party that, in the event of the court finding that the pursuer suffered a prolapse of a lumbar intervertebral disc as a result of fault or negligence on the part of the third party, and on the hypothesis that she had no pre-existing symptoms attributable to a lumbar intervertebral disc problem, the total damages inclusive of interest should be £8,000 (£6,500 solatium, £1,000 wage loss and £500 services), but on the hypothesis that she had pre-existing symptomatic disease which would in any event have led to a prolapse within about five years of the date of the injury, the total damages inclusive of interest should be £5,000 (£3,500 solatium, £1,000 wage loss and £500 services).

 

Decision

For the reasons given above, I shall sustain the second and third pleas-in-law for the third party, repel the first plea-in-law for the pursuer so far as directed against the third party and assoilzie the third party.

 

References (1)

_{Note: I wish those affected all the best in their future. No part of this article purports to attribute blame. See our methodology page for further details of how these case summaries are constructed.} 

_{Linda Shields v Jarvis Hotels PLC and Edinburgh Leisure [2005] CSOH 104.}

 

Citation: Jacklin, D. 2020. Case Summary: Linda Shields. Water Incident Research Hub, 12 December.