Scottish Court of Session Decisions

In about 1995, Miss Watt decided that she would like to undertake formal nursing training with a view to becoming a psychiatric nurse. In a formal appraisal interview in October 1994, Nursing Sister Shirley Mitchell, who was then in charge of the ward where Miss Watt worked, had asked her to consider training as a nurse, as she thought she was bright and very good at her work. Miss Watt applied to the Royal College of Nursing and Ms Mitchell provided a reference at the request of Lothian Health Studies in about February 1995. The reference supported Miss Watt's application. At that stage, Miss Watt was probably capable of satisfactorily completing the three year full time course. However, her application was rejected because she did not have the required number of "O" Grade Examination passes. She required another three O Grade passes for which she could have studied at Night School. Alternatively, she could have embarked upon a one year Access to Nursing course, which if she passed would have enabled her to enrol for the three year full time course. The Access to Nursing Course was grant assisted but did not permit full time working elsewhere. She took neither course of action in 1995, 1996 or 1997. She did not embark on the Access to Nursing Course for financial reasons and because she thought it might be better to gain some further nursing experience. She had also recently formed a relationship with the defender, left home and moved in with him in about August or September 1996. This was more expensive than living with her parents, where she had previously resided. She did not study for the additional O grade passes needed because she felt she could not cope with studying and full time work. She had also completed a Sign Language Course and wished a break from studying. Had she embarked upon such a course of action in 1998 and completed her studies satisfactorily, she would have qualified as a nurse by some point in 2002.

Between about 1995 and August 1997, Miss Watt suffered a number of personal setbacks. She had suspected glandular fever. She had a miscarriage. She suffered from depression for which she was prescribe anti-depressants by her general practitioner. She had long periods of absence from work. In particular, in the twelve month period between April 1995 and April 1996 she was absent from work for a total of 25 days. In the calendar year 1996, she had 54 days of absence through sickness. She was absent from work between November 1996 and May 1997. During that latter period she suffered from depression; Sertraline, an anti-depressant, was prescribed for her by her GP. She also received some form of counselling. Her long absence from work led to her dismissal, in May 1997. By that stage, her condition had improved and she had planned to return to work. According to Doctor Gillespie, who was her GP at the time, the dismissal "knocked her back" (see letter dated 11/6/97 in 7/15 of process at page 60). Miss Watt appealed against her dismissal and was reinstated. She returned to work towards the end of July 1997 on a phased or graded basis. The prognosis for her future health at that stage seemed to be good (see her Occupational Health Records 6/18 page 36) although Miss Watt was finding the work tiring. She was making a slow recovery and getting back on her feet (see GP records 7/15 pages 55 and 58) By this stage, however, she was about twelve weeks pregnant. By mid August, she had decided that she wished to have a termination. This decision was supported by Dr Gillespie. She had made this decision inter alia because in July 1997 a cervical smear report had shown abnormalities which required treatment that could not be given while she was pregnant.

She had an operation on 22^nd August by which the fractured wrist was stabilised with an external fixator. She was then transferred to the Western General Hospital, Edinburgh. She was admitted to the Astley Ainsley Hospital, Edinburgh on 2^nd 2 SSeptember 1997 for in-patient rehabilitation. She was readmitted to the Royal Infirmary for removal of the external fixator and for internal fixation of the right distal radius. Her pregnancy was terminated on 23^rd September 1997 at the Royal Infirmary. She was discharged from the Astley Ainsley on 29^th September and referred for out-patient occupational therapy.. She also received physiotherapy treatment for a few weeks in relation to her left wrist; .

In October 1997, her GP referred Miss Watt to the Plastic Surgery Out-Patients Clinic of St John's Hospital, Livingston; this included an urgent re-referral in relation to the haematoma on her leg which had become ulcerated. The haematoma had to be dressed daily for about a fortnight. She attended the Out-Patient Clinic and Plastic Dressing Clinic on five occasions between October and November 1997. By November, the thigh wound was healing well.

She becomes tired more easily than before the accident and needs more sleep. She has lost confidence; she is not as assertive or bubbly as she used to be; she has fewer friends and a reduced social life; at times, she has difficulty concentrating; her short term memory is poor and she has to write down important matters; there are residual, but mild, impairments in her working memory, divided attention and verbal fluency. She also suffers from a reduction in her sense of taste and smell. Her wrist and knee are painful from time to time, particularly in damp, cold weather. She cannot stand for too long as her leg becomes sore. She was discharged from the Astley Ainslie Hospital, Occupational Therapy Out-Patient Department in January 1998. She made a good recovery from her wrist injury and was discharged from the Royal Infirmary of Edinburgh Orthopaedic Out-Patient Department in February 1998. Miss Watt suffers aching in the wrist with extremes of temperature and when carrying out repeated heavy work such as lifting. These symptoms are likely to be permanent. There is no restriction of movement and the wrist is not deformed or swollen. Social activities are not affected. She will probably not suffer post traumatic-arthritis. She has a slight risk of developing epilepsy. Her brain injury has not adversely affected her life expectancy.

Miss Watt has also suffered from asthma since she was a teenager. She continues to use an inhaler from time to time. Since the accident Miss Watt's weight has increased as more fully set out in one of the medical reports (6/19 page 4). However, neither counsel made anything of these matters in closing submissions. They do not appear to be material to the issues in dispute in this case and I therefore say no more about them.

When the defender was discharged from hospital, he returned to live with the pursuer. She was his principal carer. This was a considerable burden. He began to drink heavily and became aggressive. This caused numerous arguments and fights. He assaulted her in December 1999. She then terminated the relationship and returned to live with her parents.

In May 1998, Miss Watt changed her GP. She had moved to the Pleasance area of Edinburgh. Between 2000 and 2002 she consulted her GP in relation to a variety of matters. Although her mood fluctuated she did not appear to receive treatment for depression. She did, however, receive some counselling. In March 2003, Miss Watt had an accident in a public house. She fell or tripped and broke her right ankle. She was unfit for work for at least about three months. She again resumed work on a phased basis. She returned to full time work in January 2004.

Miss Watt is pregnant again and due to give birth on 8^th June 2004. She is still working. She has formed a stable relationship with the father and they both look forward to the birth. On the assumption that all goes well (there is no evidence to indicate otherwise), Miss Watt would ideally devote her whole time to the care and upbringing of the child for the first three years of its life. Thereafter, if for financial reasons, she has to go back to work she would return to work part time. However, as she will receive maternity pay, she thinks that she will have to return to work within about three months after the birth. She would prefer to return to work part time. I accept that it is likely that she will return to work in about September 2004.

Mr MMilligan indicated that this issue did not have a great effect on his submissions on solatium. Mr Thomson resisted such a finding. In my view, the evidence is insufficient to make the finding proposed by Mr Milligan and I therefore reject his submission on this point.

I found Miss Watt to be generally credible and reliable. She gave her evidence in a calm, clear manner without exaggeration. I did not detect any significant difficulties in her verbal fluency. She was reasonably articulate. She maintained that, but for her accident, she would have been a qualified nurse by 2002. She attributed her various personal and medical difficulties as the explanation why she did not take further steps between 1995 and 1997 to embark on further training with a view to becoming a qualified nurse. While I am prepared to accept that there is some substance in what she said, it is more difficult to conclude that she almost certainly would or probably would have completed the courses successfully. I discuss this important issue in more detail below.

Ms Mitchell said that Miss Watt worked in her ward from July 1994 until September 1995, when Ms Mitchell moved to another part of the Hospital. She described her as an excellent nursing assistant. She suggested she apply for the three year course. After 1995, Ms Mitchell saw Miss Watt occasionally. She heard about her accident and has seen her a few times since then. The burden of Ms Mitchell's evidence was that Miss Miss Watt has changed since the accident. She is reserved and quiet and less self assured; she used to be bubbly and chatty, and quite confident. Ms Mitchell gave her evidence carefully in a fair and matter of fact manner. I found her credible and reliable.

[21]

Mr Robinson's brief evidence seems to have been overtaken by the Joint Minutes of Admissions. Neither counsel referred to it in their closing submissions and I say no more about it.

Mr Watt spoke to the changes to his daughter since the accident. He spoke of the effects on her short term memory; she was self conscious about her scars and chose her clothing accordingly (Miss Watt did not mention this); she was no longer as gregarious as she used to be. He spoke of there being talk of her "doing nursing". Her elder brother had been an electrician but had subsequently trained to be a nurse. Subsequently, there was talk of attending night school. Since her accident, her problem, he said, was tiredness although she appeared to enjoy her work. Mr Watt gave his evidence in a straightforward articulate manner without exaggeration. I found him to be credible and reliable.

Mr Davies interviewed Miss Watt in March 2002 and produced a report dated 30^th 30 May 2002 to which he spoke. He expressed the view, for various reasons, that Miss Miss Watt was at a disadvantage on the labour market. This is not in dispute. In his opinion, her capacity to undertake further training had clearly been compromised. If she moved from her present post, to say working in a Day Centre she would require further SQV qualifications. His views were, in part, based upon a psychiatric report by a Doctor Freeman. While Doctor Freeman's report was lodged as a production, Doctor Freeman did not give evidence and his report was not one of the agreed documents identified in the Joint Minutes of Admissions. Mr Davies is plainly experienced in his particular field, and I do not doubt his credibility or general reliability. However, his views are, in part, affected by his reliance on material which is not in evidence before the court. This is not a criticism of Mr Davies as he could not be aware that Dr Freeman's report would not form part of the pursuer's proof. He interviewed Miss Watt again in December 2003 and produced a supplementary report later that month. He expressed the view that it was unlikely that Miss Watt would be able to complete Nurse training successfully. In evidence, he stated that he thought it would be difficult for her to change jobs. Residual problems with her wrist, her tiredness, her cognitive problems and her reduced earning capacity made her less flexible on the labour market. He thought she was not capable of carrying out Nurse training (ie the three year course mentioned above). Because she had made enquiries before her accident, he considered that there was a reasonable chance that she would have qualified as a nurse and become a psychiatric nurse. He said that since the accident, she had embarked upon some further SVQ training.

David Johnson is a clinical psychologist in private practice. Until December December  2003, he was a consultant paediatric neuropsychologist and senior research Fellow at the Royal Hospital for Sick Children. He has a particular interest in recovery after brain injury in children and adults. He examined Miss Watt on 8^th September 2000 and produced two reports dated September 2000 and 14^th July 2003 (6/4 and 6/13 of process). In his first report, he concluded that the residual congnitive impairments from which Miss Watt was suffering were relatively mild, considering the severity of the brain damage, but they would nonetheless affect her performance in examinations or work situations, particularly when she is placed under pressure of novelty, complexity or multiple demands. His view was that Miss Watt did not have the same capacity or ability as she did before the accident with which to achieve the same levels of success or to pursue further training as she would otherwise have done. He did not anticipate any significant further changes in cognitive functioning. In his later report, he expressed the view that Miss Watt's injuries have increased her vulnerability to the effects of any further psychological and physical trauma. He had not reviewed Miss Watt's personnel records and was unaware of her pre-accident work pattern. I found Mr Johnson to be an impressive witness, particularly in relation to cognitive impairment. I had no difficulty in accepting his opinion as reliable.

Solatium

[28]

I consider that Wilson offers some general guidance in this case. Each case is, of course, different and multiple injuries are always difficult to assess. I agree that the valuation process must not simply be a totting up of the various discrete injuries. This can lead, as Mr Thomson submitted, to what is, in effect, double counting. However, the cumulative effect of two significant injuries can also be greater than the sum of the valuation of each. Thus, a broken arm and a broken leg at the same time might well cause greater pain suffering and inconvenience than if these injuries occurred on separate occasions. Where there are multiple injuries, each case has to be considered on its own and not assessed upon a tariff basis (see Barker v Murdoch 1979 SLT 145 1977 SLT (Notes) 75). Miss Watt was 27 years old when the accident occurred. She was recovering from a difficult period in her life. The accident and its effect on her must have been particularly devastating for her. A defender takes his victim as he finds her. In all the circumstances, I am of the opinion that the sum of £33,000 with one half thereof attributable to the past is the appropriate sum to award as solatium. Interest at 4% a year should be awarded on past solatium.

[31] These are agreed at £500 inclusive of interest.

Disadvantage on the Labour Market.

[33]

Mr Thomson submitted that £10,000 was appropriate. He referred to McEwan & Paton Chapter 6 paragraph 6.01. He submitted that the pursuer had expressed no desire to seek alternative employment and there was no evidence to suggest her present position was precarious. There was no evidence that prospects on the labour market would be poor although it was accepted that she would be looked on less favourably.

[34]

In my opinion, the appropriate sum to award is £10,000. There appears, according to counsel, to be a convention that at least one year's net earnings should be awarded if this head of claim is established or conceded. It is plain that it is difficult precisely to assess the appropriate sum (see e.g. Robertson's CB at page 224D-E). I agree with Mr Thomson's submissions. There was little or no discussion in the evidence as to whether Miss Watt's current job was at risk. It seems plain, however, that if the pursuer were thrown on to the labour market, she might well be at a disadvantage through her short term memory deficit. If extensive retraining were required, she might now find this difficult to carry out. On the other hand, there was no evidence that there is or is likely to be an over supply of nursing assistants in the future. In my view, therefore, the sum proposed by Mr Thomson is reasonable for this agreed head of claim.

[36]

[39]

The first stage is to consider what the maximum sum recoverable would have been had it been established as a practical certainty or virtually 100 % chance (see Paul at 2001 SLT page 181C-E) that Miss Watt would, but for the accident, have qualified as a nurse. In my opinion, Mr Milligan's approach in this respect is correct. Mr Thomson's multiplier takes account of matters which are not relevant if one is attempting to ascertain the maximum recoverable in the circumstances postulated. The maximum recoverable sum is therefore £91,256. The next stage is to evaluate the chance or prospect.

[41]

On the evidence, therefore, I am not satisfied that there was virtually a 100% chance that Miss Watt would have qualified as a nurse but for the accident. I consider that there was a small but nevertheless real chance or low probability that she would have pursued such a course of action and would have succeeded in earning the maximum sum recoverable, referred to above. Her prospect of doing so was not speculative or remote or de minimis, but was not great. I assess it at about 25%. In making this assessment, I take into account her potential in her younger days, her determination to return to work after the accident, and the fact that she appears to have embarked upon some additional training under the SVQ schemes since the accident (see Davies Report 6/9 of process paragraph 3.3 and 4.2). On the other hand, prior to the accident she had a somewhat difficult medical and social past which led to long periods of absence from work and might have made sustained academic and practical training problematic. It seems to me therefore that there was about a 25% chance that but for her accident in August 1997 she would have become a duly qualified nurse and earned a salary commensurate with that status. With her experience, I consider that she would have had no difficulty finding work as a qualified nurse. Whether she might have done so by 2002 or at some later stage in her life is impossible to predict.

[42]

In these circumstances, I therefore value Miss Watt's loss of the chance to become a qualified nurse at about 25% of £91,256 which I round up to £23,000. The above approach is, perhaps, not significantly different from broadly assessing what Miss Watt's full earning capacity could have been, but for her injuries, and thereafter, adopting the more traditional method of discounting for the vicissitudes or contingencies of life.

Solatium £33,000

(with interest on one half from 21/8/97

Past Wage Loss £2,000

(with interest at 8% per year from decree

1982 Act Services £1,000

(with interest at 8% per year from

Out of Pocket Expenses £500

(with interest at 8% per year from

(a) Disadvantage on the Labour Market £10,000

year from decree until payment)

(b) Loss of chance to become Qualified Nurse £23,000

year from decree until payment)

Total Damages £69,500