Scottish Court of Session Decisions

Cusick v. Stephen T Campbell [2002] ScotCS 12 (16th January, 2002)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord MacLean Lady Paton	XA161/00 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL From the Sheriffdom of Tayside, Central and Fife at Dunfermline in the cause TERENCE CUSICK Pursuer and Appellant; against STEPHEN T. CAMPBELL Defender and Respondent: _______

 

 

Act: Moynihan, Q.C., Hofford; Digby Brown (Pursuer and Appellant)

Alt: Stacey, Q.C.; HMB Sayers (Defender and Respondent)

16 January 2002

1. The pursuer was awarded damages in an action in the Sheriff Court at Dunfermline in respect of personal injuries sustained by him in a road traffic accident which occurred on 3 December 1993. Liability was not in issue. Both parties have appealed against the sheriff's decision on the amount of damages.
2. At the time of the proof, which was heard on various dates in September and November 1999, the pursuer was 46 years of age. It is not in dispute, as was found by the sheriff, that the accident caused concussion to his spinal cord and temporary paralysis of his limbs. The right side of his body had recovered. The left side had not, although there had been some improvement. Between 1995 and 1999 there had been a moderate improvement in all directions of movement of the pursuer's left arm and leg. Whereas the movement of his neck, left arm and leg had been limited to about 10% of the normal range, at the time of the proof he could move his neck and extend his left arm and leg through 30-40% of that range. There had also been a 20% improvement in the tilting of his head. The sheriff found that improvement in these movements might continue. Finding in fact 23 stated:

"As a result of the accident and the constant pain from which he has suffered, the pursuer has lost his self confidence and suffers from a chronic adjustment disorder which is secondary to his constant pain".

3. The sheriff's assessment of damages resulted in a total of £84,385, which consisted of £54,101 in respect of past loss of earnings; £12,984 in respect of interest thereon; £15,000 in respect of solatium; £1,800 in respect of interest on £7,500 of the figure for solatium; and £500 in respect of the pursuer's claim under section 8 of the Administration of Justice Act 1982. The sheriff made no award in respect of future loss of earnings.
4. The matters in issue in this appeal relate to the pursuer's claims in respect of past and future loss of earnings.
5. We deal first with the claim in respect of past loss of earnings. At the time of his accident the pursuer was a motor mechanic, and, along with his brother James Cusick, a partner, in the firm of T. & J. Cusick t/a Cusick Motors. The pursuer's brother ran the management side of the business.
6. The sheriff's findings in fact included a finding that, as a result of his injuries, the pursuer was no longer fit to carry out his duties in the firm's business. He would be unable to return to work as a motor mechanic. He had lost earnings as a result of his absence from work. In the year prior to his accident his annual personal drawings from the firm amounted to £5,228, or £100 per week. Following the accident, the firm had employed a YTS apprentice to assist with the work which the pursuer would have carried out had he not been injured. In the year to 17 January 1995 the firm granted the pursuer a loan and further loans were granted to him in each of the years that followed. These loans would require to be repaid by the firm. The second finding in fact and in law was that the pursuer had suffered loss of earnings during the preceding six years amounting to £54,101.
7. The figure of £54,101 was based on an assessment which had been spoken to in evidence by a witness for the pursuer, Frank A. McMorrow, C.A., a partner in Alan Malcolm & Co. It was a matter of agreement between the pursuer and his brother prior to the accident that the profits and losses of the business were to be shared between them in the proportion of 40% to the pursuer and 60% to his brother. There was no written partnership agreement. The accounts for the business showed that this arrangement had been followed prior to the accident. The figure of £54,101 was arrived at by taking 40% of the net profit of the business for the six years from 1995 to 2000 (pro-rated to 17 September of that year), after adding back the wages of the YTS apprentice, and deducting for tax and national insurance contributions.
8. Before coming to the arguments which were presented, it is convenient to refer to the evidence relating to the pursuer's financial position in regard to the firm. The pursuer gave evidence that after his accident his "wages" from the firm stopped. This happened perhaps two or three months after it. Thus, while his brother continued to receive his "wages", he (the pursuer) was not doing so because he had not been working. However, since then he had been receiving a loan of £100, later £150, per week from the firm. He said:

"I think it was once we had realised how serious I was hurt and then we decided well, we will give a loan...I think we sorted out the benefits, realised we were struggling financially with the benefits we were getting then we decided on the loan".

He described the outcome of his discussion with his brother as follows:

"You're struggling with money, we'll give you something out of the business just now".

9. As regards the repayment of these loans the pursuer said that he and his brother talked about this when they realised how seriously he was hurt and that he was going to take legal action. "The discussion was that anything that I had got, the loan off the business, any settlement that I did achieve would pay it back". The pursuer added:

"I mean, I'm not working in the business so I don't see why I should be taking money out of the business and not putting it back".

This was the arrangement that he had made with his brother.

10. The pursuer accepted that he was still in partnership with his brother. He explained that the initial arrangement about the sharing of profits reflected the fact that his brother had put up capital when the business was started, whereas he himself had not done so. The sharing was to be in the proportion of 40:60 until such time as his brother was paid back the money which he had originally put in to the business. Then they would revert to a 50:50 partnership. This stage had been reached. How long he continued to be a partner with his brother depended on the present action:

"I've been getting a loan out of the business and if I don't put it back in, well, I suppose the business will move over to my brother completely then if I can't reimburse the firm".

He accepted that his share in the business was an asset which he could sell to his brother. It may be noted that, according to finding in fact 34 of the sheriff, the pursuer's wife had not been aware of any loss of income since the accident.

11. The making of these loans and the pursuer's indebtedness in respect of them does not appear to have been formally recorded. However, the total amounts for each year were shown in the accounts of the partnership, which were spoken to in evidence by Mr. J. Lynch, C.A., who had prepared them. The balance sheets for each of the years from 1995 onwards showed that no share of the annual profits had been allocated to the pursuer, whereas the share allocated to his brother was 100%. The loans to the pursuer started with a total of £8,540 in 1995 and increased substantially in the succeeding years. It may also be noted that, whereas the pursuer's opening balance remained static, his brother's opening balance steadily increased year by year, by reason of the accumulation of profits which he had not drawn.
12. Mr. Lynch said in evidence that the pursuer's brother's entitlement to the whole of the profits was due to the pursuer's accident. His brother had been taxed on the basis of the whole of the profits being allocated to him. He confirmed that the pursuer had been granted the loans by the partnership in order to allow him to survive financially. This had been discussed at a meeting between the brothers. "My instructions were to record it and that was exactly what we did". He understood that the loans were to be repayable on the settlement of the present action. As regards the pursuer's interest in the business he agreed that he retained an entitlement as he was still a partner. Mr. Lynch referred in particular to the value of the firm's goodwill and the increase in the value of its fixed assets. What happened if the present action did not result in money being repaid to the firm had never been discussed. He took the view that it would only be fair that the pursuer's share in the business, which he referred to as "his equity share", should refer back to the fixed assets that were in place prior to the accident. Since then the current assets had by definition changed.
13. For the defender Mrs. Stacey submitted that the sheriff had not been entitled to find that the pursuer had suffered a past loss of earnings. She particularly founded on the terms of finding in fact 30 which contains not only the statement that the pursuer had suffered a loss of £54,101 but also the following words which precede that statement:

"Between 18 January 1994 to 17 September 1999 (proof date) the pursuer remained entitled to his share of 40% of the profits of the business".

There was, she submitted no evidence that the pursuer had ceased to be entitled to that share of the profits. He had chosen not to make drawings. She pointed out that, in contrast with cases such as Vaughan v. Greater Glasgow Passenger Transport Executive 1984 S.C. 32 and Anthony v. Brabbs 1998 S.C. 894, the pursuer's claim had not been based on his share of a loss of profit of the firm in which he was a partner.

14. The sheriff's note does not contain any discussion on his approach to the pursuer's entitlement to a share of the profits of the business and does not explain the apparent contradiction between the two parts of finding in fact 30 to which we have referred. For the pursuer Mr. Moynihan suggested that the sheriff had meant to say:

"But for the accident, between January 1994 to 17 September 1999 (proof date) the pursuer would have remained entitled to his share of 40% of the profits of the business".

To this Mr. Moynihan proposed the addition of the following words: "During that period he was allocated nil by way of profit share". The remaining sentence of the finding should stand as it did.

15. It is plain that, in the absence of any written partnership agreement, the arrangements between the pursuer and his brother in regard to their respective entitlements were highly informal. It is also plain that, whatever may have been the pursuer's entitlement to a share of the profits prior to his accident, it was accepted by the pursuer that he was not entitled to a share of those profits as his "wages" since he was not working for the business. Instead of wages he was paid, by agreement with his brother, a weekly loan, which was intended to be repayable out of damages awarded to him in the present action. No doubt this would have been a great deal clearer if evidence had also been given by the pursuer's brother who, it appears, was much more au fait with the management of the business than was the pursuer. However, the inference that the pursuer was not entitled to a share of the profits of the business is clear. For him to be in receipt of loans from the business points clearly to that conclusion. Moreover, this is wholly consistent with the treatment of the profits in the accounts of the business, in which the loans to the pursuer were shown as one of the assets of the firm. As we have already noted, there was evidence that the pursuer's brother was taxed on 100% of the profits in the period with which we are concerned. It is, of course, true that the pursuer remained a partner in the business. In the light of the evidence of Mr. Lynch it appears that he would, at best, be entitled to a share in the value of the goodwill and the appreciation in the value of the fixed assets of the business. However, this does not bear on his entitlement, if any, to a share in the annual profits of the business. For these reasons we consider that the sheriff was entitled to find that the pursuer suffered a past loss of earnings.
16. On that assumption, Mrs. Stacey went on to submit a further argument. She submitted that, even if the pursuer had suffered a loss of earnings, the sheriff had failed to take into account the benefit which, as she maintained, would accrue to him as a partner when the loans were repaid to the firm.
17. We consider that this argument is misconceived. As Mr. Moynihan submitted, the effect of the loans being repaid to the firm would be that the amount repaid would be changed from one form of asset of the firm, namely the pursuer's indebtedness, to another, namely the benefit to the firm's bank account. One way or another, the payment of the loans would not have an overall effect in the stated net assets of the firm. Furthermore, since the loans were paid out of the profits of the firm to which the pursuer's brother was solely entitled, the effect of any repayment of those loans would be solely in his favour.
18. Having regard to our conclusions so far, we consider that the amendments which Mr. Moynihan proposed to finding in fact 30 were necessary in order to bring the finding into a correct relationship with the evidence. We also approve his proposal that finding in fact 39 should be altered. It presently states:

"The profits in the business have always been shared between the pursuer and his brother in the ratio of 60% to his brother and 40% to the pursuer".

Mr. Moynihan's proposal was that these words should be preceded by the following: "Subject to finding in fact 30".

19. We turn next to the pursuer's claim in respect of future loss of earnings.
20. The sheriff made a number of findings which appeared to be of significance in regard to that claim. Finding in fact 27 stated:

"The pursuer has lost, and continues to lose, earnings as a result of his absence from work".

Finding in fact 26 states:

"As a result of his injuries, the pursuer is no longer able to carry out his duties in the firm's business. He will be unable to return to work as a motor mechanic. He is disadvantaged in the labour market".

The sheriff also made certain findings in regard to the possible future employment of the pursuer. Finding in fact 40 states:

"In recent years the pursuer has attempted to work buying cars at a motor car auction for re-sale but was unable to continue since he found that he could not concentrate on account of the pain from which he suffered".

Finding in fact 41 states:

"More recently he has enrolled in an introductory course on computers, but again required to withdraw owing to his inability to concentrate".

Finding in fact 42 states:

"In September 1999 he enrolled himself in a course of business management at Lauder College, Dunfermline, but was not confident that he would manage to complete it".

21. It is evident from the sheriff's note that he did not consider that the pursuer was entitled to an award in respect of what he referred to as "future wage loss". The sheriff does not set out the line of reasoning by which, despite the findings to which we have referred above, he came to that conclusion. It appears, however, that he took into account a number of factors. Taken in the order in which they are mentioned in his note they are as follows.

First, at page 31 of his Note he referred to the improvement in the movements of the pursuer's neck and his left arm and leg. He states that he accepted the opinion of Mr. J.A. Hamilton, Consultant Orthopaedic Surgeon, that

"an improvement in his movements might continue. This factor is significant in deciding upon the extent to which, if any, the pursuer would be entitled to future wage loss".

Secondly, the sheriff mentions in his note at pages 34-35 an episode when the pursuer had to stay off work on account of a severe strain in the lower spine for about two and a half years from about February 1985. He continues:

"Such a setback would make it less likely that he could work until he was 65. Mr. Iain Mackay, Surgeon, said that it was quite likely that a man who had had such a severe back problem was very likely to have recurrences of the same in the future. According to him it would be 'very unusual' for such a man to be able to work till 65 without a breakdown. This is clearly a significant attack on the pursuer's claim since it relates at least to his entitlement to damages in respect of future wage loss. In relation to the medical evidence available on this point Dr. MacMinn, Mr. Gentleman and Mr. Hamilton who reviewed the medical records concluded that nevertheless despite his many complaints he was quite capable of working until he was 65. On this important matter I prefer the evidence of Mr. Mackay who impressed me with his knowledge of back conditions. Now of course the pursuer is only 46 years of age. The question which arises is whether it is likely that he might be prevented in the future from engaging in work wholly owing to the back condition suffered in the 1980s. The answer is in the affirmative on the basis of the evidence which I accept. His claim for future wage loss must be seriously jeopardised".

Thirdly, the sheriff expressed the opinion that the pursuer was now fit for light work, stating at page 36:

"He has been able to drive a motor car since about 1994. According to Dr. Livingston he is now capable of doing non-physical work where he could determine the hours of input himself. Mr. Mackay said that he should now be able to cope with the buying and selling of cars. It is to his credit that he went on a computer course last year. He also said that he had been enrolled this winter in a business management course at Lauder College, Dunfermline. Accordingly I consider that he is now fit for light work".

Fourthly the sheriff states at pages 36-37:

"I also accept the argument that the pursuer has failed to minimise his loss as in law he was bound to do in several respects. In relation to the physical disability suffered by him he gave up rather easily when he became fed-up with the physiotherapist. In addition he never took up Mr. Hamilton's recommendation in his report of 31 May 1995, No. 5/2 of process at page 4, that 'he might benefit from a further rehabilitation course including traction, etc.". The other valid criticism which can be made is that he failed to persist with the clinical psychologist. Mr. Gentleman considered that he should have returned to the Dunfermline Pain Clinic to see the clinical psychologist."

Fifthly, the sheriff states at page 38 in regard to future wage loss:

"In this connection I am not entirely convinced that the pursuer would, in normal course, retire at 65. I have noted the point made by counsel for the defender, that apart from the evidence of the pursuer, there was no satisfactory evidence from any other source as to his date of retiral. In particular, I would have expected there to have been evidence from his brother James, who could have been expected to cast some light on the normal date of retirement for someone in that type of business. It is well known that the trend nowadays is towards retirement at 60, and I would not have been prepared to hold, in any event, that the pursuer was to retire at 65 years of age".

22. It should be added that the sheriff recorded that, had he been in favour of the pursuer, he would have awarded him a figure for loss of earnings in the future based on a multiplier of 14 years.
23. As regards the prospective medical condition of the pursuer, Mr. Moynihan submitted that the evidence of Mr. Hamilton that there might be a continued improvement in the pursuer's movements, was irrelevant in the light of the overall situation in which there was a "vicious circle" of pain leading to depression, which in turn exacerbated the perception of pain. He referred to the evidence of Mr. Gentleman that there was a physical basis for the pursuer's complaints, that there was no medical treatment which could alleviate it, and that there was a superimposition of psychological symptoms. The sheriff had failed to address this and should have held that it was unlikely that the pursuer would work again. He pointed out that Mr. Gentleman described the "vicious circle" as being exceptionally common in the case of people who have chronic pain and disability. This led to them being easily distracted. People who had not returned to work within a year or two of the onset of these symptoms were most unlikely to do so. This was supported by the literature. It was very hard to treat psychological factors in the case of someone who did not admit that they were part of the problem. Secondary psychological factors made it even less likely that a satisfactory resolution of the pursuer's symptoms would be found. He considered that his current inability to work was likely to prove to be permanent.

"If somebody were to come along and achieve a satisfactory resolution of the psychological symptoms I am prepared to concede that we are in a different game at that stage".

Mr. Moynihan also referred to the evidence of Dr. Livingston. He said in evidence that the symptoms which were important in arriving at a diagnosis of a chronic adjustment disorder were, in the pursuer's case,

"of an anxious and depressive nature, which are manifested by marked distress beyond that which you might expect and/or these manifestations have an impact on social role functioning, occupational function or ability to carry out the status quo. The primary stress was physical status, and there are secondary stresses as a result of the physical and emotional symptoms".

He went on to say:

"Well, I think what I am saying is that his health markedly deteriorated following the experience of the accident and as a result of that and the other secondary factors of being disabled in his employment, he developed a clinically significant range of very serious psychological or emotional symptoms which, broadly speaking, can be classified as an adjustment disorder as defined by DSM IV (a diagnostic classification system produced by the American Psychiatric Association)".

He said that in the case of the pursuer the psychological factors were secondary to pain and disability. He did not regard the emotional symptoms as the primary reason for his pain and disability. In his judgment the major issues in terms of his pain and disability were not psychological but were probably physical. Mr. Moynihan also pointed out that Mr. Mackay did not disagree with the suggestion that there were some psychological factors affecting the pursuer, and that these symptoms along with physical pain created a vicious circle. He agreed that there was no surgical procedure which could assist the pursuer.

24. As regards the prospects of the pursuer returning to work, we have already referred to the evidence of Mr. Gentleman to which we were referred by Mr. Moynihan. Dr. Livingston said in evidence that the pursuer should be strongly encouraged to consider finding an alternative role, preferably within his own family business. However, Dr. MacMinn said that chronic, persistent pain which was present all the time would be a distraction in whatever work the sufferer was engaged. In view of his poor concentration it was not likely that the pursuer would be fit for light work. As we have already noted, the sheriff recorded in finding in fact 40 that the pursuer had been unable to continue working in the buying of cars since he could not concentrate on account of the pain from which he was suffering. The pursuer himself said that he did not know whether he would be able to carry out a management role as his brother had done. He said in answer to one question:

"Sitting here today my future is bleak, I would say. I would really like to think that there was role I could do whether it was a few hours a week or whatever, but I'm going to have to do something because life - I mean, it's just terrible. I'm going to have to do something. I don't know what it's going to be whether it's in the family business or outside it or wherever. I mean, I really, really don't know".

Mr. Moynihan pointed out that the evidence showed that the pursuer's brother was not mechanically minded, whereas the pursuer had never done any other work than as a motor mechanic. He had never done paperwork. He said:-

"and that's why I've said I'm a bit apprehensive about going and doing it at college because I know I had a hard time at school, I struggled through school and I would never like to be in that situation again".

In the light of that evidence Mr. Moynihan submitted that the prospects of the pursuer being fit to undertake light work were particularly low. On the other hand Mrs. Stacey for the defender submitted that the evidence showed that there was a basis for cautious optimism.

25. As regards any other factors which might have affected the pursuer's ability to work in the future, Mr. Moynihan pointed to the pursuer's expectation of working until he was 65 years of age (finding in fact 38). He submitted that there was no evidence of any tendency among those who were engaged in similar work to retire earlier than the age of 65. He pointed out that the pursuer had not been cross-examined on this point.
26. As regards the risk of the pursuer being disabled in any event as a result of a recurrence of the back trouble which had led to him being off work for about two and a half years from February 1985, Mr. Moynihan submitted that the evidence did not support the view that the pursuer would have been disabled in any event. This was a case in which the medical evidence indicated that there was a pre-existing condition which would render the pursuer susceptible to illness at some future indeterminate date. The evidence of Mr. Mackay, at its highest for the defender, was that it was unlikely that the pursuer would work until the age of 65. He did not give any support for the view that the pursuer would not have continued working as a motor mechanic into the future. Mr. Mackay had given evidence that the kind of history in the present case indicated a pretty significant problem. He was sceptical about relying on the fact that the pursuer had had no further trouble

"because I think it's unlikely that after 2 years 9 months off work then going back to a very physical job, it's very unlikely that you are not going to have spinal problems".

He added later in his evidence:

"I think it means to me that it's very, very likely he is going to have further back problems with or without an accident and at an unpredictable time...I think it would be markedly unusual if someone is off work for 2 years 9 months with back problems in their 30s that they are going to work anywhere near 65 bearing in mind that his work, as I understand it, has always been very physical".

Mr. Gentleman said that his feeling was that while it was always very difficult to predict the future, there was nothing in the pursuer's health to make him think that he would not have been able to continue work until the retiral age "or very close to it". Dr. MacMinn said:

"I can't be 100% sure but there wouldn't really have been anything there that I would have thought was a long-term problem".

He agreed that the past tended to predict the future with people who had a recurring back pain, and thought that it would be more likely than not that the back trouble would recur. It was "possibly the case" that the pursuer might suffer back pain again in the future. In the light of this evidence Mr. Moynihan submitted that the picture had not been as black and white as the sheriff had represented in his note. Mrs. Stacey, on the other hand submitted that the sheriff was well entitled to accept the opinion of Mr. Mackay as to the age to which the pursuer might work. It was for the sheriff to decide the implications of the pursuer's previous back trouble.

Lastly, Mr. Moynihan submitted that the sheriff's view that the pursuer had failed to minimise his loss conflicted with his findings as to the pursuer's condition and the steps which the pursuer had taken in order to see whether he could pursue an alternative type of work.

27. In the light of these considerations Mr. Moynihan submitted that the sheriff should have found that the pursuer was entitled to an award of damages in respect of future loss of earnings, and that on the basis of applying an appropriate multiplier to an annual loss of earnings of £10,710. The multiplier should be modified in respect of, first, the potential for the pursuer to obtain alternative work, and, secondly, the risk of the recurrence of the pursuer's pre-existing back trouble. Without modification the appropriate multiplier, on the basis of a 3% gross discount rate, was between 12.75 and 13. In the circumstances, after taking into account the need to modify, a multiplicand between 7 and 9 would be appropriate. Mr. Moynihan submitted that the multiplier which he suggested was conservative, bearing in mind the evidence which the pursuer had given about the prospects of obtaining an equal share of the profits of the business, and the fact that the acquisition by the firm of the business of M & D. Motors held out the prospect, on the strength of the evidence given by Mr. Lynch, of an increase in net profits, which he estimated to be in the region of £8,000 to £10,000 per annum.
28. Mrs. Stacey submitted that, reading the findings of the sheriff together with his note, it could be seen that he came to the conclusion that the pursuer was fit for light work by the date of the proof. If the sheriff was incorrect in not making an award in respect of future loss of earnings, any award under this head should be a lump sum, say one year's loss of earnings, in respect of the pursuer's disadvantage in the labour market. If, on the other hand, it was appropriate the pursuer should be awarded a sum based on a multiplier of an annual loss of earnings, the figure of 2 or 3 would perhaps be correct. She did not disagree with the use for this purpose of a multiplicand of £10,710, although she did not accept that this should be regarded as a conservative figure.
29. In the light of the sheriff's findings that the pursuer was unable to return to work as a motor mechanic, was disadvantaged in the labour market, and was continuing to lose earnings as a result of his absence from work, we do not consider that the sheriff was justified in reaching the view that the pursuer was not entitled to an award in respect of future loss of earnings. As we have already indicated, while there were a number of factors which he regarded as significant, he does not explain in his note how he reached that conclusion. Standing the fact that the pursuer was losing earnings at a substantial rate at the time of the proof, and that his prospects of obtaining light work were uncertain, we consider that the correct approach for the sheriff to have adopted was to award damages on the basis of the multiplier of an annual loss of £10,710. In the light of the evidence we are satisfied that the multiplier to be adopted would require to take into account the prospect, such as it was, of the pursuer obtaining light work which would mitigate his loss of earnings, and the risk of the recurrence of back trouble prior to his reaching his retiral. There was, as Mr. Moynihan pointed out, no other evidence which would suggest that the pursuer might in any event have ceased to work before reaching retiral age. We are unimpressed with what the sheriff says in regard to any alleged failure on the part of the pursuer to minimise his loss. In the whole circumstances we consider that future loss of earnings should be assessed by applying a multiplier of 7, so yielding a figure of £74,970. We also accede to Mr. Moynihan's submission that this sum should bear interest at 8 per centum per annum from 30 November 1999.
30. Having regard to the foregoing we will alter finding in fact 30 by substituting in place of the first sentence the words:

"But for the accident, between 18 January 1994 and 17 September 1999 (proof date) the pursuer would have remained entitled to his share of 40% of the profits of the business. During that period he was allocated nil by way of profit share".

We also alter finding in fact 39 by deleting the first word of that finding "The" and substituting the words "Subject to finding in fact 30, the". We will also add a new finding in fact 49 in the following terms:

"As at the date of the proof the continuing net loss of earnings sustained by the pursuer was £10,710 per annum".

We will also add a heading 9 to the sheriff's findings in fact and in law namely:

"The pursuer will suffer a future loss of earnings, assessed at the sum of £74,970, on which he is entitled to interest at 8 per centum per annum from 30 November 1999".

Accordingly we will sustain the pursuer's appeal to the extent of adding to the award of damages in his favour the sum of £74,970 in respect of future loss of earnings, together with interest thereon at 8 per centum per annum from 30 November 1999: and refuse the defender's cross appeal.