Scottish Court of Session Decisions

[1] The pursuer in this action was born on 3 March 1969. She suffers from spina bifida. Prior to the events set out below, she suffered a neurological deficiency in her lower limbs and in her bowel and bladder function. As a result both her feet were completely anaesthetised. She had complete paralysis of the left foot and virtual paralysis of the right ankle and foot. She had very limited sensation in both legs below the knee. She was able to walk short distances of up to about 15 metres unaided. For longer distances she used a wheelchair in the normal way but often used it as a walking aid both in and out of doors. She was occasionally incontinent. She was employed as a clerk by Clydesdale District Council. Her employers arranged for her to be transported to and from work by taxi and she gained access to her office by climbing stairs unaided and walking with the assistance of a wheelchair in the manner described. During working hours she was able to move about her office and to deal with the public relying on office furniture for support. On 2 May 1988 she was admitted to the William Smellie Hospital, Lanark, for the birth of her first child. The child, a boy, was born on the following day. During her time in hospital the pursuer developed a pressure sore on her right heel from which she failed to recover. As a result her right leg required to be amputated below the knee. The defenders admit liability to make reparation to her for the loss, injury and damage she sustained as a result.

[2] The pursuer was ultimately discharged from the William Smellie Hospital on 16 May 1988. She has not walked since. After her discharge she was under the care of her general practitioner and the district nurse. She was confined to a wheelchair with her right leg elevated. The sore was treated with daily dressings but failed to heal. By November 1988 it was producing an offensive discharge. In January 1989 she was treated as an out-patient by a plastic surgeon who shaved the keratin at the edge of the ulcer. Because of her prolonged absence from work she was compulsorily retired on health grounds on 12 January 1989. Thereafter a complex operation in the form of a vascularised muscle transfer was suggested to her and she took time to consider the suggestion. In May 1989 she developed septicaemia and had to be admitted to Law Hospital, Carluke, where it became clear that the heel bone was infected. The septicaemia was potentially life-threatening. The symptoms were severe nausea, headaches and fever. She underwent surgery during which a large portion of her calcaneum was removed. She was treated with antibiotics and remained in hospital for three weeks. She was again discharged into the care of the district nurse, and arrangements were made for her to undergo the muscle transfer operation in January 1990. Before that could be done she required emergency admission to Law Hospital because of the toxic effects of the continuing infection in her right heel, and a below knee amputation of the leg was carried out on 1 February 1990. The pursuer remained in hospital for eight days, after which she required help with changing the dressing on her wound from the district nurse. Because of the configuration of her stump she has had and continues to have great difficulty in adapting to the use of an artificial limb. This difficulty is irremediable and she is unable to walk using a prosthesis. After it is worn for some hours it becomes loose and causes her embarrassment. She is self-conscious and reluctant to go out in public. She is unable to walk and to use stairs. She suffers from urinary incontinence. She is unable to go out on her own and spends most of her time at home. She suffers from phantom pains particularly in cold weather. She requires the central heating in the home to be turned on in both summer and winter. She has little social life although she occasionally is taken to football matches with her son.

[3] The pursuer was married in 1989 to the father of her child. He found it difficult to cope with the situation after the amputation and he and the pursuer separated in February 1991. Two weeks later he committed suicide. Prior to the separation he assisted her with shopping and household tasks. Since his death the pursuer has required to rely on the help of friends and family, particularly for shopping. A close friend, Joan Crawford, assists with shopping, hanging washing, cleaning windows, and, when the pursuer's child was younger, took him to school. The pursuer now has a partner Robert Robertson whom she has known for about five years. He spends evenings and weekends with her when he is free. He does all necessary house improvement work, helps with heavy housework and cleaning, and does some gardening.

[4] The pursuer's claim for damages was divided by her counsel into six heads: (1) solatium, (2) past wage loss, (3) future wage loss, (4) loss of pension rights, (5) aids and appliances, and (6) miscellaneous costs representing extra heating, wear and tear, and extra clothing.

[5] Counsel for the pursuer urged me to award a figure of solatium at the top end of the appropriate scale. She submitted that the pursuer had endured more than two and a half years of suffering between her confinement and the amputation. Such mobility as she had prior to her confinement was especially precious to her. It gave her independence, and enabled her to travel to work and to move about her office. She was able to travel by public transport and had a social life. In contrast, she was now wholly dependent on her wheelchair and could not go out alone. She could not use stairs. She was restricted in her access to buildings. She had great difficulty with her prosthesis and was profoundly embarrassed by its deficiencies even nine years after the amputation.

[6] Counsel the defenders argued that the pursuer's loss was less than that of a person who had had total mobility. Reference was made to Hill v Lovett 1992 S.L.T. 994, Scott v Kelvin Concrete 1993 S.L.T. 935 and Ryan v Trans Manche Link Kemp & Kemp Vol. 3, paragraph 12-201/2 and to guidelines for the Assessment of General Damages in Personal Injury Cases (4^th Ed.) 1998 prepared by a working party of the Civil and Family Committee of the Judicial Studies Board in England. The latter publication is intended to indicate the range of awards which might apply to different classes of injuries based upon past awards and current practice. Among other things it has been described as a convenient check as to what the correct bracket of damages might be. The range of awards given in that publication for a below knee amputation of one leg is £40,000 to £55,000. The awards in the decided cases to which I was referred, with one exception, fell within that range.

[7] In assessing the amount of solatium I am not inclined to make any significant reduction on account of the fact that the pursuer's mobility before her confinement was restricted. The degree of mobility which she had was precious to her and she used it as much as she could to enhance her life. She is now confined to a wheelchair. It seems to me that her loss is no less, but on the contrary rather greater than that of a able-bodied person who suffers a below knee amputation but is able to retain a significant degree of mobility with the use of an artificial leg. During the twenty months between her confinement and the amputation she underwent continual medical treatment and had to live with an extremely offensive discharge and smell emanating from the infected heel. The septicaemia which gave rise to hospitalisation on two occasions was severe, and the effects extremely unpleasant for the pursuer, as well as life threatening. On the other hand, because of the anaesthesia of her lower legs she suffered no pain from the heel. I consider an appropriate award of solatium to be £47,500, one-half of which I attribute to the past for the purposes of interest.

[8] The assessment of loss of earnings in this case presents some difficulty, since at the time the pursuer developed the pressure sore which ultimately led to the amputation, she was at something of a turning point in her life. She had left school at 16 and started work with a Youth Training Scheme in the registrar's office at Lesmahagow. Thereafter she transferred to Strathclyde Regional Council at Lanark, where she worked as an administrative assistant. Her duties included filing, typing, answering the telephone and dealing with insurance claims. She later transferred to Clydesdale District Council Parks and Recreation Department where she did similar work, mainly connected with the letting of council halls and other facilities, and dealt with members of the public face to face. She enjoyed her work, was rarely absent, and regarded it as a job for life. She enjoyed a social life and visited public houses, clubs and cinemas. She had moved out of her parent's home into her own home, and eventually became pregnant by the man who became her husband. It was her intention to go back to work at the end of her maternity leave, leaving the child in the care of her husband, who was unemployed.

[9] The pursuer impressed me as person of intelligence and determination who, until her confinement, had met head on the challenges which life had presented and had overcome them to live a substantially normal life. She had coped successfully with her job and with living on her own. She had established a relationship and faced the prospect of motherhood with equanimity. She was positive in her outlook and intended to have at least one other child. She was fortunate in that her employers were understanding and supportive during her short work career. In particular they provided her with transport to and from work, and kept her job open for a considerable time after the end of her maternity leave, when she was unable to return to work. This, argued counsel for the pursuer, indicated that they were conscious of their obligations under the Disability Discrimination legislation. In those circumstances she could expect her favourable conditions of employment to continue. Moreover, the fact that her job provided the necessary financial support for herself and her husband provided an incentive to continue working. The presence of a child or children, argued counsel for the pursuer, would have had little bearing on the likelihood of her continuing to work.

[10] With the birth of her child the pursuer would have encountered a situation that she had not met with before, facing as she would have done, the additional challenges of motherhood. At the time of her confinement her plans for the future involved her husband acting as child minder for as long as necessary. When asked what would happen if her husband were to find a job, the pursuer said she would have to consider a child minder. Counsel for the defender argued that it was questionable as to how long she would have continued working had the amputation not occurred. There was uncertainty surrounding her husband's staying power as a child minder, and no information had been provided as to the availability of alternative child care. It must, he submitted, have been a considerable effort for the pursuer to go out to work at the best of times, and having one or two children would have made it even more difficult. He argued that in any event it was unlikely that the pursuer would now be working nor was it probable that she would have worked until age 65. If he was wrong in that, he suggested that the same range of employment was open to her now as was open to her before the amputation. She had the advantage of the protection of the Disability Discrimination Act 1995 to which local authorities were particularly sensitive. In that situation he argued that there should be no award for future loss of earnings. His alternative position was that any calculation or future loss of earnings should be based on a 3% discount rate applied to table 14 of the Ogden Tables for a woman aged 31. He suggested that Table 14 was more appropriate because it was based on projected mortality rather than historical mortality.

[11] A significant factor in the assessment of an appropriate figure for loss of wages in this case is the uncertainty surrounding the pursuer's ability to continue to cope with her job and travel to and from work, as well as meeting the physical demands which motherhood inevitably brings. The combination of these demands would in my view have led, at best, to her requiring to be absent from work from time to time, and at worst, having to give up work altogether. Nevertheless, her own previous positive outlook, and the attitude of her employers leads me to the view that had she been determined to return to work, as I accept she was, she would have found a way. Her employers' record indicates that they were very conscious of their obligations under the Disability Discrimination Legislation and would have done what they could to help her. I consider that it is likely that, during any periods off work in the time between the end of her maternity leave and the proof, they would have made allowances for her and kept her job open, provided that there was a prospect of her returning to work within a reasonable time. It was only when there was no realistic prospect of her returning to work in the foreseeable future that they terminated her employment in 1990. In all these circumstances, I have come to the view that it was more probable than not that the pursuer would have continued her employment between the end of her maternity leave and the date of the proof. Parties were agreed that her loss of wages during that period was £76,677. To that figure there falls to be added interest at half the judicial rate of £48,505.

[12] I turn to consider whether the pursuer could or should have found employment after the end of her maternity leave despite her present disability. At some time between the birth and the amputation she consulted her general practitioner about going back to work. The fact that she did so in my view serves to confirm her genuine intention to return to work. She was told that it was not possible because her dressings had to be changed every day. In addition to that, she was immobile and coping with the other problems arising from her condition to which I have already referred. I am satisfied that she was wholly unable to work between the birth of the child and the amputation. Since the amputation she has made no further enquiries about the availability of work nor as her capability for work been assessed. She herself feels that she could not manage a job. She cannot walk and her prosthesis becomes loose and causes her discomfort and embarrassment. There is no prospect of improvement in that respect. She cannot use stairs. She cannot work with food because of her incontinence. She would however still be able to carry out secretarial work using a typewriter. In her evidence she accepted she could possibly work a few hours a day. As it is, she receives income support including severe disablement allowance and disability living allowance at the highest rate. While the pursuer might be able to carry out some sedentary work for a few hours, I take the view that the difficulty of obtaining a suitable job and of getting herself to a place of work is such that there is no realistic prospect of her working. In the light of these factors, I accept the pursuer's evidence that she could not manage a job and am satisfied that since the amputation the pursuer has been wholly unable to work and will continue to be unable to work into the foreseeable future as her energies are fully taken up in looking after herself and her son. By the time her son ceases to require her care, she will have been unemployed for a very considerable period and it seems to me, looking at the matter realistically, that the probability is that it will be impossible for her to obtain work even if she were capable of doing it.

[13] In relation to future loss, Mrs Smith for the pursuer invited me to apply Tables 4 and 14 of the Actuarial Tables with Explanatory Notes for use in Personal Injury and Fatal Accident Cases, 3^rd edition, (the Ogden Tables) in order to arrive at the sum of money needed now to provide for the pursuer's future loss of earnings. Tables 4 and 14 set out multipliers for loss of earnings to pension age 65 for females. She invited me when using the tables to arrive at the appropriate multiplier, to depart from the rate of return of 3% fixed upon by the House of Lords in Wells v Wells [1999] 1 A.C. 345 as the appropriate rate of return to be used until the Lord Chancellor and the Secretary of State for Scotland prescribed a rate of return in terms of Section 1 of the Damages Act 1996. She argued that the figure of 2% should be used on the ground that the rate of return on index linked government stocks had fallen sufficiently far in the last year to justify that figure. She relied on the evidence of Mr Findlay Marshall, Consulting Actuary, and on a brief article by Sir Michael Ogden, Q.C. which appeared in the issue of the publication "Quantum" on 21 April 1999.

[14] In my view, the speeches of the judges in the case of Wells v Wells indicate that it was their Lordships' intention that the rate of 3% should be used as a firm guideline with a view to providing an element of certainty which would assist settlement in future cases and avoid the need for actuarial evidence. As Lord Steyn said at page 388D:

Lord Hope of Craighead said at page 393B:

[15] I am not satisfied that there has been a sufficiently marked change in economic circumstances to justify departure from the 3% figure. The kind of fall in the rate of return on index linked Government stocks relied upon by Mr Marshall was in my view within the order of fluctuation envisaged by their Lordships in Wells, and would not justify a departure from the figure arrived at by them. Rates may go up as well as down. Nor is there any feature peculiar to the pursuer's case which would require a rate different from that appropriate to the general run of cases to be used. I shall therefore adopt a rate of 3%.

[16] Because of the lack of certainty to which I have already referred, the assessment of future loss of earnings is not without difficulty. For the reasons I have given however I consider it more likely than not that the pursuer would have continued to work after the date of the proof. In these circumstances I consider it appropriate to make an award for future loss of earnings, but in my calculations to adopt a different approach from that proposed by Mrs Smith. Mr McDonald's submission for the defenders was the probability was that the pursuer would not be able to work until 65 because of the increased difficulty of getting about as indicated by Professor Bone, who spoke to the susceptibility of persons with spina bifida to muscle contraction in the areas of weakness, in the pursuer's case the legs, often accompanied by deterioration in the joints.

[17] I take the view that Mr McDonald's submission on this part of the case is well founded, and that the probability is that the pursuer would not have worked until age 65, but would have been forced through increasing immobility to give up some years before that. The method I propose to adopt is to assume that the pursuer would have had to give up work at age 55. In accordance with paragraph 16 of Section A of the Explanatory Notes the appropriate course in that situation is to use Table 16 (multiplier for loss of earnings to pension age 60 (females)) and to add five years to the pursuer's age to take account of the difference between 60 and 55. I shall take the pursuer's age to be 31 as she was approaching her 31^st birthday at the date of the proof. Applying a rate of 3% to age 36 brings out a multiplier of 16.91. This figure has to be corrected to take account of the pursuer's greater chances of survival by adding to the multiplier one quarter of one per cent for each year by which the assumed retiral age is earlier than 60. The figure of 1.25 is therefore added to 16.91, bringing out a multiplier of 18.16. This is the figure I propose to adopt. The multiplicand was agreed by the parties to be £9,226. I therefore award the sum of £167,544 in respect of future loss of earnings.

[18] As a cross check, I approached the matter along the lines proposed by Mrs Smith, namely by using Table 14 (multipliers for loss of earnings to pension age 65(females)). Using the age 31, and a rate of return of 3%, a multiplier of 21.03 is brought out. It was accepted by Mrs Smith for the pursuer that an allowance had to be made for contingencies other than mortality, but her submission was that the percentage deduction from the multiplier should be no more than 5%. Mr McDonald for the defenders submitted that the deduction should be greater. I accept the defenders' submission, but am conscious of the content of Section B of the Explanatory Notes attached to the Ogden Tables, which deal with contingencies other than mortality. In paragraph 27 of that Section it is said that there appears to be no scientific justification in the generality of cases for assuming significantly larger deductions than those given in the Tables in that Section. The author goes on to say that specific factors in individual cases may necessitate a larger deduction. I would have been disposed to make a deduction of 10% from the multiplier to take account of contingencies other than mortality, thus bringing out a multiplier of under 19. While for my purposes it is satisfactory that this approach brings out a multiplier which is reasonably close to the one arrived at by the application of Table 16, I prefer to use the Table 16 method in order to avoid the risk of making a deduction which has no scientific justification. I should add that I used Tables 14 and 16, which are based on projected rather than historical mortality rates, thus giving a more accurate picture of present day life expectancy, rather than Tables 4 and 6, because there was no clear evidence that the pursuer's life would be shortened by her spina bifida.

[19] The pursuer based her claim for loss of pension rights on the evidence of Mr Findlay Marshall, consulting actuary, who based his calculations on the assumption that the pursuer would have worked to age 65 and would consequently have accumulated 45 years service. He calculated that her pensionable salary would be £39,040 per annum. He declined to apply the rate of return of 3% arrived at in Wells but used a figure based on the more recent performance of index linked Government stocks. I have rejected the proposition that the pursuer would work to age 65 and have based my calculation of future loss of earnings on the assumption that she would not be likely to work beyond the age of 55. The assumption is of course that she would have been paying insurance contributions until that time. I have also rejected the departure from the 3% rate of return. In these circumstances I shall put the case out By Order to enable parties to make submissions as to how the calculation of loss of pension rights should be approached on the basis of the findings I have made. The factors upon which it may be thought appropriate to provide further guidance are (I) the appropriate pensionable salary, and (ii) the date at which the payment of pension would have begun.

[20] Parties were agreed that as at the date of the proof the pursuer had purchased aids and appliances made necessary by her increased disability to the value of £350. It was further agreed that for the future the annual cost to her of aids and appliances required because of her amputation is £333.24. In order to arrive at the capital sum required to provide that level of expenditure for the rest of the pursuer's life, I use Table 12 of the Ogden Tables for a woman aged 31 assuming a rate of return of 3%. The figure brought out using a multiplier of 36.2 is £8,730. I shall therefore award £9,080 in respect of aids and appliances.

[21] The pursuer claims the sums of £200 and £150 per annum respectively for the future for wear and tear and extra clothing occasioned by the amputation. I did not understand these claims to be disputed. Accordingly I shall again apply Table 12 using age 31 and a 3% rate of return to arrive at a figure of £9,170, which I shall award for these heads of claim.

[22] It was further agreed that a reasonable estimate of the cost of extra domestic heating required because of the pursuer's increased immobility would be £227.50 per annum, the equivalent of the Supplementary Benefit annual additional hearing allowance. The defenders agreed that this sum should only be awarded in respect of the years during which the pursuer would otherwise have been working. I think there is some force in that argument, since, on my view of the matter, the pursuer would in any event have required to give up work before 65 because of increased immobility and so would have been likely to require the extra hearing from the point at which she stopped work. In these circumstances I propose to award a sum which would compensate her for the extra cost between the ages of 31 and 55. I shall give parties an opportunity to address me on how this sum should be arrived at at the By Order hearing to be arranged.