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Cite as: [2005] ScotCS CSOH_87, [2005] CSOH 87

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Lennox v. Bishop [2005] ScotCS CSOH_87 (01 July 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 87

PD1894/04

OPINION OF LORD HODGE

in the cause

JOHN WILLIAM LENNOX

Pursuer;

against

ALFRED WALKER BISHOP

Defender:

________________

Pursuer: McEachran, Q.C.; McKay Norwell, W.S.

Defender: Springham, Advocate; Brechin Tindal Oatts

1 July 2005

[1] This is a motion for interim damages under Rule of Court 43.11.

Circumstances of the Claim
[2] The pursuer, who is now aged 27, suffered severe injuries in an accident in March 2002 when he was driving a motorbike. The accident was the sole fault of the defender. Liability to make reparation is not in issue.

[3] As a result of the accident, the pursuer suffered a fractured skull and a severe diffuse concussional brain injury. He has suffered a change of personality. He suffers recurrent headaches and dizzy spells. He has poor concentration, poor short-term memory and enduring fatigue which significantly affects his ability to obtain paid employment. He suffers from some impairment in his speech, verbal reasoning and vocabulary. He also fractured his pelvis and continues to experience significant and persistent right-sided hip pain requiring strong analgesics. He can walk only short distances and now uses a walking stick. He cannot pursue his hobby of playing football. His lung was punctured but healed. There was also evidence of pain and limitation of movement in his left shoulder for a while. The injuries which have had significant long-term consequences are the brain injury and the fractured pelvis.

[4] Over time he appears to have become depressed as he has realised the extent of his continuing disabilities. He can wash and dress himself and can manage light household chores. He is frustrated by his continuing problems and suffers from low mood and a lack of motivation. His day lacks any structure. As well as analgesics, he requires medication to combat depression and anxiety on a daily basis.

[5] Before the accident the pursuer worked as a motor engineer for several years but, after fracturing his left wrist in December 2001, he developed a condition which was provisionally diagnosed as reflex sympathetic dystrophy. He was then unable to work as a mechanic but his employers, John Paton & Sons Ltd, employed him in their offices. He was earning about £10,484 net per year. He has not worked since the accident. Such are his disabilities that there is little prospect of the pursuer being able to engage in regular paid employment. It is likely that the best he will manage is to engage in voluntary work on a part-time basis under the Permitted Earnings Scheme which could generate a maximum income of £4,035 per year.

[6] The pursuer was supported by his partner, Lynne Murray, who is a staff nurse and who cared for him until their relationship broke down in late 2004 or early 2005. The pursuer now lives alone in a bungalow in Fountainhall near Galashiels which he and Ms Murray purchased with the assistance of a secured loan. The pursuer requires funds to pay off the secured loan of £65,000 which cannot be supported as Ms Murray's income is no longer available to meet the interest payments on the loan.

Pursuer's submissions
[7] Mr McEachran for the pursuer sought payment of £250,000 as interim damages. He referred me to D's Parent and Guardian v Argyll & Clyde Acute Hospitals NHS Trust 2003 SLT 511 and Wallace v Paterson 2002 SLT 563. He also quoted the Judicial Studies Board Guidelines on the Assessment of General Damages (contained in McEwan & Paton on Damages) in relation to injuries to the pelvis and brain injury. He referred me to the pursuer's statement of value which suggested that the claim was worth £1,900,000. For the purposes of this motion, he suggested that I take the following values:

Solatium:	£100,000
Past Wage Loss:	£37,000
Future Wage Loss:	£192,000
Past Services:	£10,000
Future Services:	£100,000
Case Management:	£25,000
Total:	£464,000

[8] On what he submitted was a very conservative basis for the purposes of the interim damages motion, he valued the pursuer's claim at £464,000. The defender's insurers had already paid about £38,000 in interim damages and CRU payments. He accordingly sought a net sum as interim damages.

Defender's submissions
[9] Miss Springham for the defender referred me to Reith v Aberdeen Mineral Water Co Ltd 1987 SCLR 689, Nisbet v Marley Roof Tile Co Ltd 1988 SC 29, Cowie v Atlantic Drilling Co Ltd 1995 SLT 1151 and Brown v Chief Constable, Strathclyde Police 2003 Rep LR 112. She submitted that D's Parent (in which Lord Carloway awarded 75% of his estimate of the likely award of damages) was an unusual case where there was a pressing need for a large sum to fund special accommodation and that the proportion of the likely award which the Court usually awarded as interim damages was in the range of 30% to 60%. While the award of interim damages was not confined to losses to date, the fact that the bulk of the claim related to the future was a relevant factor. In addition, in Cowie the Lord Ordinary awarded a sum which was less that ⅓ of the first defender's estimate of the value of the claim on full liability. She also pointed out the uncertainties in the medical reports to which I refer below and questioned both the extent of the pursuer's disability from his hip injury and the degree of his cognitive impairment.

[10] As regards solatium, she referred me to Wayt v Swansea City Council (Kemp & Kemp H1-026) in relation to a hip injury and to two criminal injuries compensation cases, Re Stoneman and Re Jofar (Kemp & Kemp B4-028 and 4-029), in relation to brain injuries.

[11] Her valuation for the purposes of interim damages was:

Solatium:	£42,500
Past Wage Loss:	£37,000
Future Wage Loss:	£93,500
Services & Care:	£30,000
Total:	£203,000

She invited me to award about forty per cent of that sum (£80,000) under deduction of £38,000 which the defender had already paid in interim damages and recoverable benefits, namely a net sum of £42,000.

Discussion
[12] Rule of Court 43.11 provides:

"The Court may ... ordain the defender to make an interim payment to the pursuer of such amount as it thinks fit, not exceeding a reasonable proportion of the damages which, in the opinion of the Court, are likely to be recovered by the pursuer."

This gives the Court a wide discretion. The only limitation is that the amount which the Court may award must not exceed a reasonable proportion of the damages which the Court considers the pursuer is likely to recover.

[13] In reaching a view on what the pursuer is likely to recover the Court has to act on incomplete knowledge. The Court does not have the benefit of seeing and hearing the differing views of experts tested by cross-examination nor does it know whether and to what extent the pursuer's medical condition and other circumstances may change between the date of the award of interim damages and the date of the proof. The Court may have regard to the totality of the likely final award of damages, and is not constrained to have regard only to past loss. The Court always faces uncertainty in relation to future loss, but the uncertainties at the stage of a motion for interim damages are likely to be greater than they are after a proof. While Rule 43.12 provides for the repayment of sums by a pursuer where an interim payment exceeds the final liability of a defender, it is clearly undesirable for the Court to order the payment of sums which a pursuer might not be able to repay on final decree. It is not surprising therefore that the Rule has the limitation of the "reasonable proportion".

[14] These considerations also justify the "conservative and moderate approach" which the Court adopted in ordering interim payments of damages under the old Rule of Court 89A (Nisbet v Marley Roof Tile Co Ltd 1988 S.C. 29, Lord Clyde at 31) and which the Court adopts under the present Rule (D's Parent and Guardian v Argyll & Clyde Acute Hospitals NHS Trust 2003 S.L.T. 51, Lord Carloway at para. 4).

[15] Other cases provide only limited guidance as both the appropriate sum and the "reasonable proportion" limitation will differ according to the circumstances of each case. There is no requirement that the Court award as interim damages a reasonable proportion of the likely final award. There may be cases where a pursuer seeks an interim award which is less than a reasonable proportion of the likely award. In that and other circumstances the Court may award less than that ceiling. Nonetheless, I see no justification in the words of the Rule for the approach urged on me by Miss Springham that I should take as a starting point the minimum award which the defender's advisers consider likely to be awarded and then apply a conservative percentage (30% or 40%) to that figure. I do not interpret the rule as requiring the Court to make a minimalist assessment of the likely damages and then to apply a low percentage to that figure in every case. It is the resulting award of interim damages which should be moderate and conservative and within the ceiling set by the rule.

[16] In this case I have been shown a considerable number of medical reports which are broadly in agreement on the main features of the pursuer's long-term disabilities. But there appear to be two principal areas of uncertainty. First, the pursuer's condition was initially not considered to be as disabling as it turned out to be and the later onset of depression may be contributing to his disability. Mr Keating, the pursuer's consultant orthopaedic surgeon (in a report dated February 2004) was surprised at the level of pain which the pursuer continued to feel from his injury to his pelvis. He suggested that there might be a psychological element in his disability. But he pointed out that it was not unusual for there to be a psychological component in the disability of persons who sustain injuries of this severity. Secondly, there is the reported suggestion in the report of Dr Zeman (dated November 2003) that the pursuer's gait was "almost certainly elaborated" and Professor McMillan's conclusion (in his report dated May 2005) that the pursuer purposefully exaggerated his cognitive difficulties. These matters may need to be tested at a proof.

[17] At this stage I have to take a broad approach in assessing the damages which are likely to be recovered. It is not disputed that the pursuer suffered a severe traumatic brain injury as well as a serious injury to his pelvis. There is evidence of severe impairment of his ability to process information rapidly and efficiently. His cognitive impairment is likely to persist. It is very unlikely that he will return to remunerated full-time employment.

[18] In my opinion it is likely that the pursuer will receive a substantial award of solatium. I am prepared to accept the pursuer's figure of £100,000 as appropriate for the purpose of this motion. I consider that the cases to which Miss Springham referred me are not a good guide of the likely value of the pursuer's claim under this head. Past wage loss is agreed at £37,000. The pursuer is also likely to be awarded a substantial sum for future wage loss, which is not likely to be less than £180,000. In relation to past care, which was provided by Miss Murray and the pursuer's parents, I take the sum of £10,000. It is not appropriate to take into account a substantial figure for future care at this stage for three reasons. First, I have been shown only a preliminary report by the occupational therapist, Mrs Tania Brown. Secondly, the defenders have not yet produced a similar report. Thirdly, I must take account of the untested suggestions that the pursuer exaggerates certain of his difficulties. I am therefore not able to accede to Mr McEachran's suggestion that the pursuer will require eight hours of care per day at the cost of £33,000 per year. Mr McEachran recognised that it was necessary to discount this element of the claim at this stage and invited me to value it at £125,000 (inclusive of £25,000 for case management). I accept, having regard to his brain damage and continuing disability, that it is likely that the pursuer will require some daily services in the future. I am prepared to assess the likely award for future services at £80,000.

[19] In my opinion, aggregating the sums which I set out in the preceding paragraph, the damages which the pursuer is likely to recover are in excess of £400,000. I consider that an appropriate proportion of that sum at this stage, taking account of the uncertainties, is 50%. From the resulting sum of £200,000 falls to be deducted the £38,000 which the defender has already paid in interim damages and repayable benefits. I therefore award a net sum of £162,000.

[20] I am required by Section 15(2) of the Social Security (Recovery of Benefits) Act 1997 as interpreted in Mitchell v Laing 1998 S.C. 342 to specify the damages due for the relevant statutory heads of compensation during the five years from the date of the accident. The relevant heads in this case are compensation for earnings lost and compensation for cost of care. Compensation for earnings lost in the award of interim damages comprises 50% of the agreed sum for past loss of wages, which is £37,000, and 50% of the sum of £14,000 (£8,000 x 1.75 years) for future wage loss, namely £18,500 and £7,000 respectively. There is no award of interim damages for the past cost of paid care. Of the likely award of £80,000 for future cost of services, I calculate the annual sum as £3,200 and that sum multiplied by 1.75 years is £5,600, of which one half (the figure of interim damages) is £2,800.