Scottish Court of Session Decisions

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Cite as: [2006] ScotCS CSOH_7, [2006] CSOH 7

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 7

PD1051/04

OPINION OF LORD MACPHAIL

in the cause

GRAEME CARLING

Pursuer;

against

W P BRUCE LIMITED

Defenders:

___________

Pursuer: Ivey, Q.C.; Lindsays, W.S.

Defenders: Peoples, Q.C.; Brechin Tindal Oatts

20 January 2006

[1] This is an application for an interim payment of damages in terms of rule 43.11 of the Rules of the Court of Session 1994 as substituted and amended. The pursuer was injured in a road accident on 25 September 2002 when the car he was driving collided with a tractor driven by an employee of the defenders. The defenders admit liability. The pursuer sues for damages of £900,000. He now seeks an interim payment of £300,000. The proof commenced on 8 November 2005. I heard evidence on 8, 9, 10 and 11 November 2005, including the evidence of the pursuer. On 11 November 2005 the proof was adjourned part-heard. The continued proof has been set down for eight days from 25 April to 5 May 2006. The motion was enrolled on 4 January 2006. It was opposed by the defenders on two grounds: (1) that the motion was incompetent as it sought interim damages while the proof was part-heard; and (2) that the sum sought was excessive.

[2] In order to determine these issues it is necessary to examine the terms of rule 43.11, so far as material. The rule provides:

"(1) A pursuer may, at any time after defences have been lodged, apply by motion for an order for interim payment of damages to him by the defender ...

(3) On a motion under paragraph (1), the court may, if satisfied that -

(a) the defender ... has admitted liability to the pursuer in the action; or

(b) if the action proceeded to proof, the pursuer would succeed in the action on the question of liability without any substantial finding of contributory negligence on his part ... and would obtain decree for damages against any defender,

ordain that 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."

[3] Counsel for the defenders submitted that the motion was incompetent. A fair construction of rule 43.11 suggested that the rule contemplated that the motion would be enrolled at the pre-proof stage, either where defences had been lodged and liability had been admitted, or where liability had not been admitted and the court had to consider what would happen if the action proceeded to proof. There was no reported case in which a motion had been made once the proof had commenced. If a motion were competent at that stage, the court would have to form a provisional view, while hearing the evidence, as to the amount of damages likely to be recovered. That was unattractive in principle. In the present case, there were conflicts of medical opinion, differing views had been expressed as to the prognosis, and there was an issue as to whether videos of the pursuer in various situations indicated that he had been exaggerating the gravity of his complaints. The latter issue had already been raised by the defenders in their cross-examination of the pursuer. Even if the motion were competent, it would not be appropriate to entertain it in the circumstances of this case.

[4] Counsel for the pursuer argued that the rule did not provide that a motion for interim damages was competent only before the commencement of the proof. If it had been intended that no motion could be made thereafter, it would have been easy so to provide.

[5] In my opinion the motion is competent. Rule 43.11(1) provides that a motion may be enrolled "at any time after defences have been lodged." The rule does not anywhere prescribe a time after which a motion may not be enrolled. The present case falls under rule 43.11(3)(a), since this is a case where the defender has admitted liability. It is therefore unnecessary to consider the opening words of rule 43.11(3)(b): "if the action proceeded to proof." Read as a whole, rule 43.11(3)(b) appears to require the court to envisage a situation in which the action proceeds to final judgment, and not to forbid the enrolment of a motion after the commencement of the proof in a case in which liability has not been admitted. Be that as it may, rule 43.11(3)(b) does not apply to the present case.

[6] I therefore consider that I may exercise the discretion conferred by the rule to order payment of an amount "not exceeding a reasonable proportion of the damages which, in the opinion of the court, are likely to be recovered by the pursuer." I begin by noting that certain figures have been agreed by joint minute. The parties have so agreed that if the pursuer had remained in his former job, he would have received £156,000 net in such employment in respect of his combined salary, pension payments, discretionary bonuses and car and fuel benefits, inclusive of interest, from the date of the accident to the date of the commencement of the proof; that if he had remained in employment he would currently be receiving £51,410 net per annum in respect of his combined salary, pension payments, discretionary bonuses and car and fuel benefits; and that the value of his claim under section 8 of the Administration of Justice Act 1982 in respect of past and future care (inclusive of interest) is £25,000. Counsel advised me that the defenders' insurers had already made voluntary payments to the pursuer amounting to £116,500.

[7] While the parties are in agreement as to the quantum of the pursuer's claims for past loss of earnings and past and future services, they are at variance as to the amounts likely to be awarded in name of future loss of earnings and in name of solatium. Counsel for the pursuer addressed me carefully and in detail on the terms of the medical reports lodged in process, and invited me to reach the view that the pursuer's total claim was worth in excess of £650,000. Counsel for the defenders submitted that the pursuer's medical witnesses still had to be cross-examined on the contents of the videos and the issue of whether the pursuer was exaggerating his symptoms. In my opinion it is clear from the reports and from the evidence led so far from the pursuer and members of his family that the condition he presents is unusual. I find it difficult to say any more with confidence at this stage. I have considered the parties' competing submissions with care and I have concluded that without having had the advantage of hearing the oral evidence of the medical witnesses for both sides, I am unable to reach even a provisional conclusion as to the amount of the damages which are likely to be recovered by the pursuer. While I consider that the motion is competent, in the circumstances of this case I find it impossible to make any useful prediction of my own likely award when the court is in the midst of hearing the evidence and issues of credibility remain unresolved.

[8] It is, however, clear that the damages likely to be recovered will include the agreed sums in name of past loss of earnings (£156,000) and past and future services (£25,000), a total of £181,000, less the amount of the sums already voluntarily paid (£116,500), that is, £64,500. The latter sum cannot exceed a reasonable proportion of whatever damages might ultimately be awarded. I shall therefore order the defenders to make an interim payment to the pursuer of £64,500.