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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Eassie
Lord Reed
Sir David Edward, Q.C.
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[2008] CSIH 24
OPINION OF THE COURT
delivered by SIR DAVID
EDWARD, Q.C.
in
APPEAL
From the Sheriffdom of
North Strathclyde at Dumbarton
by
LINDA HENRY
Pursuer and Respondent;
against
RENTOKIL INITIAL PLC, CAPTIVE
Defenders and Appellants:
_______
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Act: G Clarke; HBM Sayers Giusti Martin (Pursuer and
Respondent)
Alt: Weatherston, Solicitor
Advocate; Brechin Tindal Oatts
(Defenders and Appellants)
13 March 2008
[1] This is an
appeal from the Sheriff Court at Dumbarton. It was set down for hearing for four days on the
basis of an estimate provided by the appellants. That estimate was repeated when the appeal
called By Order on 4 January 2008.
Nothing was done before the hearing to inform the Court that the four
days allotted would not be required.
[2] In the event,
the appellants' submissions took not more than three hours and the hearing was
completed by mid-morning on the second day.
In consequence, two and a half days of Court time were wasted and other
litigants were deprived of the opportunity of an earlier hearing of their
case. The explanation - or excuse -
offered was that instructions as to the arguments to be advanced were awaited
from the appellants' insurers.
[3] Lawyers who
conduct litigation before the courts of Scotland owe a duty to the Court as well as
the client. The decision whether an appeal may properly be pursued, the
preparation of Grounds of Appeal and the furnishing of estimates of the time
required are tasks that engage the professional responsibility of the lawyers
concerned. Proper and timeous discharge of that professional
responsibility is not conditional on instructions from clients or
insurers. It is greatly to be
regretted that this was not kept in view by those acting for the appellants in
the present appeal.
Background
[4] On 12 January
2000, the
pursuer and respondent (hereafter "the pursuer") was injured while working as a
nurse in the National Health Service at Canniesburn Hospital.
She had been employed there since 4 October 1999, having previously been employed
both in the NHS and in the private sector.
[5] It is
admitted for the purpose of the present action that the pursuer's injuries were
caused by the negligence of an employee of the defenders and appellants
(hereafter "the defenders") for which they are vicariously liable. The issues at the Proof before the Sheriff
and on appeal in this Court were therefore concerned with quantum only.
[6] At the Proof
eight witnesses were led for the pursuer.
Their evidence was largely unchallenged in cross-examination. No evidence was led for the defenders. After the Proof both parties put in detailed
written submissions which were referred to in the course of the appeal. It appears that there was also a hearing on
those submissions before the Sheriff but no argument was advanced to us on the
basis of what was said there.
[7] The nature
and consequences of the pursuer's injuries are set out in the Sheriff's
Findings in Fact numbers 4 to 12 as follows:
"4. The pursuer's life has been ruined by
the consequences of said accident. Her
family life has been disrupted. Her
social life has been devalued and her chosen career destroyed.
5. Throughout her suffering the pursuer has been uncomplaining,
resolute and determined to make the best of things. She is no malingerer and has always done her
best to mitigate her losses.
6. Inter alia the
pursuer sustained an injury to her hip.
This was painful and treated with analgesics but resolved within six
months.
7. The principal injury suffered by the pursuer was to her
brachial plexus. This is a complex
network of nerves in the area of the neck and shoulder. Injury to it can materially affect the
function of the hand and arm.
8. As a result of the injury described in above the pursuer
suffered severe pain for about two years.
9. The pursuer received medical and occupational health
treatment and guidance from the date of her accident until March 2002 when it
was considered that there could be no further improvement in her
condition. Included in the said
treatment was the application of first a fixed and then an active splint both
designed to arrest degenerative changes in the hand and arm. These were unsightly and caused the pursuer
some embarrassment.
10. As a result of the injury to the brachial
plexus the pursuer has lost the function of her left (non-dominant) hand. She has lost a significant degree of function
in her left arm. These conditions are
likely to be permanent. She will never
again be fit for her previous employment.
She is unable to perform any task requiring the use of two hands.
11. As a consequence the pursuer's employers
terminated her contract of employment
on 7th October 2001.
12. The pursuer is embarrassed to show or to
be seen to try to use her left hand. She
holds it unnaturally. She has no feeling
in her left hand. She has no grip. In cold weather the hand can cause
discomfort. She is unable to drive an
unadapted motor vehicle. The pursuer is
unable to carry out many domestic tasks.
The quality of her day to day existence has been materially impaired and
she had incurred and will incur costs in respect of modifying a car and
purchasing modified articles for every day use all as more fully explained in
the report by Allison Beattie 5/2.5 of process."
Mr Weatherston, who appeared for the defenders at both the
proof and the hearing of the appeal, did not challenge the terms of any of
those Findings in Fact.
[8] The Sheriff
awarded a total of £315,306.45 made up as follows:
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Head
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Amount £
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Solatium (past inc. interest)
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22146.85
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Solatium (future)
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12500.00
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Loss of Earnings (past inc. interest)
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165131.93
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Loss of Earnings future to 31/08/2009
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76950.00
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Loss of Earnings from 01/09/2002
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23750.00
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Services from others (past inc. interest)
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6327.67
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Services from others (future)
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5000.00
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Additional Expenses
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3500.00
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Total
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315306.45
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[9] The defenders
challenged the award under each and every one of those heads.
Solatium
[10] The Sheriff
assessed solatium at £30,000 of which he attributed £17,500 to the past.
[11] In attacking
the Sheriff's award, Mr Weatherston referred to two cases of injury to the
shoulder: Penny v J Ray McDermott
Diving International Inc, 2004 SLT 253, where the award was £25,000, and Doyle v Strathclyde Regional Council, 1994 SLT 524, where the award was
£6,500. He submitted that the proper award
in the present case would be between those two figures since in Penny there was an element of clinical
depression absent in the present case.
[12] Mr Clarke for
the pursuer referred us to the table for Orthopaedic Injuries prepared by the
Judicial Studies Board (August 2006 edition) which suggests the following range
of possible awards:
(A) NECK INJURIES
...........
(a) Severe
...........
(ii) Injuries
which give rise to disabilities which fall short of those in (a)(i) above but
which are of considerable severity; for
example, permanent damage to the brachial plexus.
£38,175 to £76,350
...........
(C) SHOULDER INJURIES
(a) Severe
Often associated with neck injuries
and involving damage to the brachial plexus (see A)(a)(ii)) resulting in
significant disability.
£11,200 to £28,000
[13] It is not in
dispute that the appropriate test to be applied in this case is whether the sum
awarded by the Sheriff is "out of all proportion to the true sum which ought in
the opinion of the appeal Court to have been awarded" - Purdie v William Allan &
Sons, 1949 SC 477, per Lord
Justice-Clerk Thomson at page 480.
[14] Standing the
range of figures suggested by the Judicial Studies Board for injuries of the
type sustained by the pursuer, the suggestion that the sum awarded by the
Sheriff was "out of all proportion" to the sum that ought to have been awarded
is wholly untenable. The appeal under
this head must fail. Since there is no
cross-appeal on this point, it is unnecessary for us to make any more detailed
assessment of the appropriate award.
Past Loss of Earnings
[15] The Sheriff
found in fact as follows:
"14. The pursuer was, until the accident, a
career nurse with a special interest, training and enjoyment in paediatric
nursing. She entered nursing at 17, was
31 at the date of accident and had every intention of making a lifetime career
of it. She was well respected and
qualified in her chosen career and would almost certainly have advanced further
by way of promotion.
15. The pursuer undertook a course with a
view to qualifying as a counsellor. She
did not enjoy that. It did not suit her
personality and she obtained no job satisfaction from it. She decided not to continue with another two
years training because of this.
16. That decision was entirely reasonable.
17. The salary structure of nurses in the
pursuer's position and the probability of her progress and promotion was such
that a reasonable estimate of her wage loss from the date of the accident to
date is £137992. The pursuer received
statutory sick pay and payment from the defenders amounting to £7508.03."
Other than the figure of £137,992 in Finding in Fact 17, the
defenders' solicitor advocate did not take issue with any of these findings.
[16] In his Note
the Sheriff went on to say that
"The pursuer's employment history
demonstrates a dedication and enthusiasm for her work and is sufficient to
convince me well beyond a balance of probabilities that she could have expected
(a) the normal increments associated with her rank at the date of the accident
and (b) promotion over the years as she claimed."
He then dealt with points that were not insisted upon by the
defenders before us and continued:
"While in principle I can find little
fault with Mr Hennessy's [the pursuer's solicitor's] approach to calculating
this head of damages as explained at pages 12 to 14 of his [written]
submissions it is not an easy exercise to arrive at accurate figures.
As Mr Weatherston submits the
pursuer's average earnings at the time of the accident can be calculated with
some accuracy at £15,800. Applying the
discernible percentage increment of 7.6% one arrives at the following figures
[set out in a table bringing out a total of £137,992]. From that must be deducted the statutory sick
pay and payment made by the defenders.
These amount to £7,508.03, leaving a balance of £130,483.97. Again using the alphalaw calculator the
interest on that sum for 2432 days comes to £34,647.96. Total past wage loss therefore amounts to
£165,131.93."
[17] Mr Clarke for
the pursuer conceded that the calculations put forward by Mr Hennessy were
not correct. It is also clear on a close
reading of Mr Weatherston's written submissions that he did not say that the
pursuer's average earnings at the time of the accident could be calculated at
£15,800 per annum. On the contrary, his figure was £13,365, the
figure of £15,800 being his calculation of the appropriate net figure as at 14 October
2001 when
the pursuer's employment with the NHS was terminated.
[18] In these
circumstances, the Sheriff's calculation of past loss of earnings proceeded on
an erroneous assumption, and we must approach the problem afresh. As became apparent from the rival submissions
before us, it is possible to calculate past loss in such a way as to bring out
a figure lower than that found by the Sheriff but also in such a way as to
bring out a higher figure.
[19] There is no
cross-appeal on this point. Accordingly,
if the correct figure is lower than that found by the Sheriff, the appeal must
be allowed. But if, on the other hand,
the pursuer's past loss was, on the balance of probabilities, at least as high
as the figure found by the Sheriff, then it will be sufficient to dismiss the
appeal, as respects this head of loss, without making a more precise finding as
to what the correct figure would have been.
[20] Mr
Weatherston's approach was to take as a starting point the average of the
pursuer's net earnings for the three months between October 1999, when she
started work at Canniesburn, and January 2000, when the accident occurred. His final submission was that the appropriate
figure for past loss inclusive of interest, after deduction of £7508.03 in
respect of statutory sick pay and the payment to account, was £134,821.63 - i.e. about £30,000 less than the figure awarded
under this head by the Sheriff (after the same deductions and inclusion of
interest).
[21] Mr Clarke, on
the other hand, started from the information given in a letter dated 7 November
2005 from Glasgow NHS Payroll Services which sets out the basic hourly rate and
the monthly gross salary paid to a nurse of a similar grade (Grade F) to the
pursuer over the period from 12 January 2000 to the date of the letter. He applied an uplift of 12% to represent the
enhancements over and above the basic hourly rate which the pursuer could have
expected to earn in respect of overtime, unsocial hours, etc. (The pursuer's expert, Mr Davies had
suggested a figure of 15%.)
[22] On that basis
Mr Clarke brought out a figure of £122,467.10 before deduction of £7508.03 in
respect of statutory sick pay and the payment to account, and before applying
interest - i.e. a figure about £15,000 less than the equivalent figure of £137,992 found by the
Sheriff.
[23] In our
opinion, Mr Clarke's approach to the calculation is to be preferred to that proposed
by Mr Weatherston since it is more closely related to the documentary evidence
as to basic rates of pay over the period and to the evidence of Mr Davies as to
the appropriate enhancement percentage.
Mr Davies' evidence on this point was neither contested in
cross-examination nor contradicted by other evidence.
[24] Mr Clarke
submitted that the shortfall of about £15,000 between the Sheriff's figure and
his own calculation could be made up in one or other or both of two ways. First, he pointed to evidence given by Mr
Davies that the pursuer would have been earning £24,000 net in 2004-05 - i.e.
about £5,000 per annum higher than the figure for that tax year which he (Mr
Clarke) had brought out in his calculation.
[25] Second, Mr
Clarke pointed out that his calculation took no account of the possibility
that, had she remained in NHS employment, the pursuer would have been promoted
to a higher grade (Grade G) at some time between the date of the accident and
August 2006. Mr Weatherston's position
at the proof and before us was that the pursuer had failed to prove a specific
time when she would have been promoted and consequently, that no account
whatever should be taken of that possibility.
[26] In our
opinion, that is to ask the pursuer to prove something that it is impossible
for her to prove as a matter of fact, as opposed to reasonable hypothesis. In a case such as this, the question for the
Court is whether, on a balance of probabilities, the pursuer would have been
promoted to Grade G and if so, approximately when that might have happened.
[27] In this
regard, as we have noted above, the Sheriff found as a fact (Finding in Fact
14) that the pursuer would "almost certainly have advanced further by way of
promotion" and said in his Note that he was convinced of this "well beyond a
balance of probabilities". As already mentioned, the Sheriff's Finding in Fact
was not contested before us.
[28] It is not,
unfortunately, clear from the Sheriff's Findings in Fact or his Note whether he
considered that the pursuer would have been promoted between January 2000 and
August 2006, still less when this might have occurred. On the other hand, under the heading of
"Future Loss of Earnings", he held that "it is more than likely that she would
have progressed to a promoted post and that, had the accident not happened, she
would have been earning £27,000 net p.a. at least".
[29] In our
opinion, the evidence shows that the pursuer is a lady of above average
intelligence who was devoted to her work as a nurse and had a rather wide range
of career options open to her. We
consider it more probable than not that she would have been promoted to Grade G
at some time between January 2000 and August 2006.
[30] We take this
into account together with Mr Clarke's first point as to Mr Davies'
evidence that the pursuer would have been earning £24,000 in 2004-05. We take into account also the fact that the
defenders provided the Court with little or no assistance, whether by way of
meaningful cross-examination of the evidence led for the pursuer or by way of
evidence to contradict it.
[31] In that state
of the evidence, we are satisfied that, on the balance of probabilities, the
shortfall of £15,000 between Mr Clarke's calculation and the Sheriff's figure
for past loss would at least be equalled, if not exceeded. That is sufficient to dispose of the appeal
on this point.
Future loss of earnings
[32] The Sheriff found in fact as follows:
"18. The pursuer is presently studying for a
degree at Glasgow University with a view to qualifying as a
primary teacher. She will finally
qualify for remunerative employment as such in September 2009. She will lose earnings from now until then of
£81,000.
19. Once the pursuer qualifies it will take
her approximately ten years before her earnings match those she could
reasonably have expected to receive in her previous career. The likely loss there is £23,750."
Again, other than the figures, neither of these Findings in
Fact was challenged by Mr Weatherston.
[33] The figure of
£81,000 in Finding 18 represents 3 years at £27,000, which is then subject to
an agreed "early settlement discount" of 5%, bringing out the net figure
awarded by the Sheriff of £76,950. The
figure of £23,750 in Finding 19 rather confusingly represents a figure of
£25,000 after deduction of the early
settlement discount.
[34] Mr
Weatherston's challenge to these figures proceeded on the basis that the
pursuer had failed to prove when she would have been promoted to Grade G and
that, therefore, future wage loss should be calculated on the basis that she
would have remained at Grade F. For the
reasons given above, we consider this to be a wrong approach.
[35] Mr Clarke
produced calculations based on the Ogden Tables (6th edition) which
showed that a figure considerably higher than that awarded by the Sheriff would
have been well within the bounds of possibility. There is, however, no cross-appeal on this
point.
[36] Assessment of
future loss, where there are as many imponderables as there are here, is not an
exact science. In our opinion, it is
sufficient to hold that the sums awarded by the Sheriff are well within the
range of any reasonable assessment. The
appeal therefore fails on this point also.
Past and future
services (Sections 8 and 9 of the Administration of Justice Act 1982)
[37] The Sheriff
made a single Finding in Fact and a single award without distinguishing between
the sums to be awarded under Sections 8 and 9 respectively:
"20. The pursuer has been unable to perform the
normal domestic chores a wife and mother would normally carry out. As a result members of her family have had to
render services to her and will require to do so in the future. Past and future services can reasonably be
assessed at a total of £10,000."
The Sheriff attributed £5,000 to the past and £5,000 to the
future.
[38] Mr Weatherston
challenged this award, not only on the ground that the Sheriff had failed
properly to apply Sections 8 and 9, but also on the ground that the pursuer had
failed to prove who had provided what services and when. Again, there was no cross-appeal.
[39] Evidence as to
the pursuer's need for assistance in many respects was led from the pursuer
herself and from her husband, her aunt and Mrs Alison Beattie, an occupational
therapist. Their evidence was not
challenged in any significant respect in cross-examination.
[40] Mr Clarke
accepted that the Sheriff should have made separate awards under Sections 8 and
9 and that in the case of the Section 8 services it was necessary to identify
the individuals who had provided the services and the amount attributable to
each of them. He submitted that Finding
in Fact 20 should be amended by adding at the end the following words:
"[a total of £10,000] which sum can
be attributed half to the past and half to the future with, in respect of the
past award, £500 respectively to the pursuer's mother, Agnes Graham, and
mother-in-law, Maureen Henry, and £1,000 to her husband, Richard Henry, all in
terms of Section 8 of the Administration of Justice Act 1982, the remainder of
the award being in respect of Section 9 of the Act."
In our opinion, when the award is so distributed, it can be
seen to be very modest. We see no reason whatever to disturb it, but we will
allow the appeal to the extent of amending Finding in Fact 20 as proposed by Mr
Clarke and apportioning the figure allowed by the Sheriff in respect of
interest for past services. These are
£132.76 for Agnes Graham and Maureen Henry and £265.52 for Richard Henry, to
whom the pursuer must of course account for the Section 8 award.
Additional expenditure
[41] The Sheriff
awarded £3,500 in respect of additional expenditure incurred and likely to be
incurred by the pursuer in respect of adaptations to a car and various
household items. It appears that this
figure was based, at least in part, on a report by Mrs Alison Beattie. That report was not produced before us. Mrs Beattie was examined and cross-examined
on the contents of her report but the transcript does not reveal the figures to
which she spoke.
[42] In his closing
submissions, we understood Mr Weatherston to suggest that the appropriate
figure under this head would be £3,163.84, but he offered no good reason to
disturb the Sheriff's figure of £3,500.
Decision on the appeal
[43] In the result,
the appeal fails on all points except as regards apportionment of the sum
awarded under the head of past and future services.
Cross-appeal
[44] The pursuer
marked a cross-appeal in the following terms:
The Learned Sheriff having erred in
failing to award the sum agreed by the parties in the sum of £24,191 as damages
for loss of pension, damages should be increased by that sum together with
interest at 8% per annum from 28 June 2006 until payment.
In their written submissions to the Sheriff, the defenders
stated:
"As an agreed aspect of the case, the
defenders concede that in the event that the pursuer had remained a nurse at
grade 'F' level but for the accident and in the event that she proceeds with
her current planned career path of primary school teaching that [sic] there would be a potential loss of
pension as between these two alternatives in the sum of £24,191 at the date of
proof. The defenders, however, submit
that in the light of the inadequacy of the pursuer's evidence about pension contributions
and in the light of the appropriate approach towards quantification suggested
by the defenders that [sic] the issue
of pension loss does not arise."
[45] We were told
that the agreement referred to by the defenders was to avoid the necessity of
leading the evidence of an actuary who had produced a report and was certified
as a skilled witness in the Sheriff's interlocutor of 30 November
2006.
[46] After the
Sheriff issued his Interlocutor and Note of 31 August 2006, the pursuer's agents wrote to the
Sheriff Clerk, asking why the award did not include the agreed figure of
£24,191. The Sheriff Clerk replied by
letter dated 13 September 2006 as follows:
"I refer to your letter dated 11
September in relation to the above case and confirm that this was passed to
Sheriff Dunlop for his perusal. The
Sheriff has made the following comments:
'While he did not mention pension
loss specifically, he had not entirely overlooked it. This was agreed in a Joint Minute as to the
amount only. There was an argument about
whether it was a loss at all it could only be in certain circumstances, if it
was then the quantum was agreed, however the Sheriff can recollect no argument
was Mr Hennessy on that specific point [sic]. Mr Weatherstone
touched upon it briefly pointing out the difficulty in comparing one pension
with another. In the absence of
compelling argument and the light of substantial award being made under other
heads [sic] he did not feel able to
include it'."
In so far as that letter can be treated as having any value
in explaining why the Sheriff did not make an award in respect of loss of
pension rights, it is both incoherent and illogical. In these circumstances, it is for us to
determine de novo whether an award of
the agreed amount should be made under this head.
[47] The defenders'
grounds set out in their written submissions for contending that no award
should be made under this head were (a) "the inadequacy of the pursuer's
evidence about pension contributions" and (b) "the appropriate approach to
quantification suggested by the defenders".
[48] The pursuer
was cross-examined as to an "anomaly" in her evidence about pension
contributions. In so far as we are able to understand the purport of the
questions put to her, the alleged anomaly appears to consist in the fact that
the pursuer had, at an earlier time, stopped making pension contributions but
had resumed doing so when she was employed at Canniesburn in October 1999.
[49] In our
opinion, the pursuer's evidence on this matter was neither anomalous nor
inadequate. It is not in dispute that,
as at the date of the accident, she was making pension contributions. No reason was put to her as to why she might
have ceased to do so at some time in the future.
[50] The defenders
have failed comprehensively in their approach to quantification, both before
the Sheriff and before us.
[51] In these
circumstances, we find no reason to deny the pursuer an award of the agreed sum
for pension loss. We will therefore
allow the cross-appeal, make an appropriate Finding in Fact and award the
additional sum of £24,191.
Disposal
[52] We will therefore
dismiss the appeal subject to amendment of Finding in Fact 20 and allow the
cross-appeal with the addition of a further Finding in Fact 21. These Findings will therefore to read as
follows:
"20.
The Pursuer has been unable to perform the normal domestic chores a wife
and mother would normally carry out. As
a result members of her family have had to render services to her and will
require to do so in the future. Past and
future services can reasonably be assessed at a total of £10,000, which sum can
be attributed half to the past and half to the future with, in respect of the
past award, £632.76 (inclusive of interest) to each of the pursuer's mother,
Agnes Graham, and mother-in-law, Maureen Henry, and £1,265.52 (inclusive of
interest) to her husband, Richard Henry, all in terms of Section 8 of the
Administration of Justice Act 1982, the remainder of the award being in respect
of Section 9 of the Act.
"21.
The pursuer has lost pension rights valued at £24,191."
[53] Since the adjustments to the services awards do not
affect the defenders' ultimate liability under those heads, effect can be given
to our decision by increasing the principal sum allowed by the Sheriff by the
amount of the agreed pension loss figure, producing a total of £339,497.45, with
interest from the date of his interlocutor.
