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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 55
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PD187/07
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OPINION OF LORD CARLOWAY
in the cause
FRANK WILLIAM
FLETCHER as Guardian of LISA SMART
Pursuer;
against
CHRISTOPHER LUNAN
Defender:
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Pursuer : Mackay QC, RG
Milligan; Bonnar & Co,
Defender : Stephenson; The Anderson Partnership
20 March 2008
(a) General
[1] On 27 October 2002 at about 1 am, Lisa Smart, then aged twenty one, was walking with
a friend along Main Street,
Saline. They had been at a social
function at the local golf club. They had reached a point on the road with no
pavement on the side along which they were walking. As they continued, they
were both hit by a car driven by the defender, who was well over the legal
limit for alcohol when driving. The defender was convicted of a contravention
of section 2 of the Road Traffic Act 1998 (dangerous driving) and sentenced to
two years imprisonment. Miss Smart suffered a serious head injury.
[2] In
May 2007, on the pursuer's motion, a four day proof restricted to liability was
allowed. This was fixed for 15 January 2008. However, not long
before it was due to commence, the defender admitted liability and the parties
agreed that the degree of contributory negligence would be assessed at fifteen
per cent. An eight day proof on quantum
was then requested and this has been allocated in March 2009. The defender has
made two interim payments to the pursuer, one of £150,000 and one of £100,000. The pursuer now seeks interim damages of an
additional £500,000.
[3] The
terms of the Rule of Court (43.11) are familiar. They permit the court to ordain a defender to
make an interim payment of:
"such amount as it thinks
fit, not exceeding a reasonable proportion of the damages which...are likely to
be recovered by the pursuer".
The court must accordingly
determine the amount of damages which are "likely to be recovered" before it
can order the payment of the "reasonable proportion". Although this exercise will, in part, involve
the court estimating what it might award after a proof, the rule instructs a
broader approach. The proportion is to
be of the amount which the pursuer is "likely to recover". Most (but certainly not all) cases, especially
those involving catastrophic injuries such as the present one where liability
is not in dispute, settle in advance (or on the day) of the diet of proof. That settlement will, for a variety of
reasons, be for less (sometimes substantially less) than a pursuer's often
optimistic valuation but more (sometimes substantially more) than a defender's
parsimonious assessment. Settlements tend not to depend upon precise
arithmetical calculation but on broad estimates of the strengths and weaknesses
of each side's figures. The court ought to take a similar broad axe with a
blunt blade approach to its estimate of likely damages recovery, before fixing
the "reasonable proportion" on a relatively conservative basis (see my remarks
in D's Parent & Guardian v Argyll and Clyde Hospitals 2003 SLT 511
para [5]; Lord Hodge in Lennox v Bishop 2005 SCLR 1107 at paras [13-14];
and Lady Dorrian in Taylor v
Sands [2006] CSOH 186).
(b) Miss Smart's Condition and Care
[4] In
support of the application, the pursuer presented a schedule of damages
totalling over six million pounds. The defender countered with one amounting to
less than £450,000. It is not in dispute that Miss Smart is presently resident
in the Bandrum Nursing Home, Saline. She
is functionally tetraplegic, with movement only in her fingers and the toes of
one foot. She is conscious and communicates mainly by using a hand held
buzzer. She has a tracheostomy in
situ and is fed through a tube. There are two major areas of dispute. The first is the level of Miss Smart's
cognitive function, notably her ability to express a desire on where she is to
live. The second is her life expectancy.
[5] The
pursuer referred to a report (6/2 of process) from Dr Alan Carson, consultant
in neuropsychiatry, who examined Miss Smart on 23 December 2006.
This states (p 14):
"I would consider it as
absolutely inevitable given the severity of her initial injuries that a
significant and highly limiting degree of cognitive impairment will be present,
and this will be the major rate limiting step on her future function. This will now have reached a static level and
will not improve further...[E]even allowing for more sophisticated communication
techniques, I do not believe that she has the capacity to make all but the most
basic of choices".
Dr Carson notes that, nevertheless,
one choice that she has made is to be cared for at home. He continues:
"There is nothing about her
current care needs that could not be done on a home basis, and I cannot detect
any medical reason to contradict home management. In particular, her current
placement is a nursing home without direct medical cover, and indeed for any
medical emergencies it would be the same general practitioner who would deal
with both. It is, however, clear that
she would need input from qualified nursing staff on a 24 hour basis if
homecare were to be attempted".
Having examined various other
aspects of Miss Smart's situation, Dr Carson concludes (p 16):
"Thus,
although there will be a number of practical considerations which will need to
be overcome, I would in this case enthusiastically endorse the idea of home
care, and I felt that her parents had made mature and sensible decisions in
this regard".
[6] The
pursuer also founded upon a report (6/24) from Michael Barnes, Professor of
Neurological Rehabilitation, who saw Miss Smart on 30 August 2007, and writes (p 8):
"...it is very likely...that she will
have significant impairment of cognitive and intellectual functioning. However, it is equally clear that she has a
significant level of awareness of her immediate environment and can interact at
a reasonable, but simple, level with her environment and with her family and
carers".
Dr Carson refers to Miss Smart
having a "slightly reduced life expectancy" (p 17) but Professor Barnes concludes
(p 14) that her life expectancy is reduced by around 50%, that is to say from
61 years to 30.5 years (per the Ogden Tables), on the basis that she continues
to have high quality care, therapy and appropriate equipment.
[7] The
defender relied upon a report (7/5) from Dr WJK Cumming, consultant
neurologist, who saw Miss Smart on 28
July 2004 and 12 April
2006. Dr Cumming did not consider that she was understanding
speech, processing information or replying appropriately to questions (paras
9.11-12). He gained the impression that
her cognitive function was lower than those around her might think. Although he accepted that an independent
(home) care regime might be set up for her (para 9.70), he considered that to
be extremely difficult in practical terms.
He regarded her present environment in the nursing home as "safest" and
the "best" facility for her needs (paras 9.71-79). Dr Cumming originally gave her life
expectancy at between four and seven years (para 9.83), assuming a satisfactory
continuing care program. However, having reviewed certain medical records
dealing with a chest infection suffered by Miss Smart, he reduced this to
between three and five years in December 2006 (7/6).
[8] There
is then a wide discrepancy in the assessment of life expectancy. The defender
suggested that it must now be less than two years, but that is perhaps to
misinterpret the exercise, presumably partly statistically based, which
requires to be carried out from a given date. For present purposes, having
regard to the terms of the medical reports, it appears that Dr Carson is being
very optimistic given Miss Smart's condition.
Perhaps, without wishing to seem callous, Professor Barnes may too be
erring on that side. However, Miss Smart
survived her chest infection and measures are in place to ensure that it will
not readily recur. Dr Cumming's more
recent assessment does seem excessively gloomy in that light. It is appropriate to take a figure well below
the pursuer's experts' estimates but one in line with the higher end of the
defender's expert's original figure; that is to say seven years.
[9] In
relation to Miss Smart's cognitive functioning, I will also proceed upon a
relatively pessimistic view.
Nevertheless, she has been able to express a preference to be cared for
at home. The pursuer has expert advice that she can be cared for at home.
Whether the defender has to pay for that care depends upon the application of
common law principles of damages. The
pursuer is entitled to such damages as will put Miss Smart into the same
position, or as near to it as practically possible, as if she had not been
injured. If a pursuer proposes a
particular care regime, which seeks to achieve that result, then the defender
will have to pay for it in damages unless that regime is unreasonable. In that regard, the pursuer is under no
obligation to mitigate loss by keeping Miss Smart in a nursing home just
because it is funded by central or local government and is regarded as adequate
for her needs. If it is reasonable to have her cared for in her own home, where
she would have been but for the accident, then the cost of that will be a
legitimate head of damage even if it involves additional or exclusive private
cost. However, if all that is required to put Miss Smart into that same pre
accident position is already, or may be, provided for from a publicly funded
source, it may be unreasonable to instruct a more expensive and unnecessary
private scheme. Equally, if a pursuer can secure public funding, in whole or in
part, for her care, he might reasonably be expected to apply for it so as to
reduce his expenditure. But it is not
for the Court to decide what is "best" for Miss Smart or to stipulate an
acceptable minimum level of care. It is
for the pursuer to put forward a regime and the defender will require to fund
that, unless that regime is an unreasonable or impractical one. Quantum
valeat, that appears to have been the conclusion reached by the English
Court of Appeal in Sowden v Lodge [2005] 1 WLR 2129 (see also Crofton v NHS Litigation Authority [2007] 1WLR 923), to which both parties
made reference (see eg Pill LJ at paras [10]-[14], [38]-[41]; cf medical expenses in terms of Law
Reform (Personal Injuries) Act 1948 (c 41) section 2(4)).
[10] There is no material at present upon which it could be
concluded that attempting to achieve home care is an unreasonable course for
the pursuer to adopt. It may ultimately
fail, but there can be little criticism of the pursuer for trying to achieve
such a regime in the near future (if funds are in place). There also is a great deal to be said for
attempting this in advance of any proof date, so that the court can be in a far
better position to assess its ultimate reasonableness and practicability at
that time.
(c) Solatium
[11] The pursuer suggested that solatium
was reasonably estimated at £230,000, with half attributable to the past and on
which annual interest at 4% would run.
He referred to the English Judicial Studies Board Guidelines for "Very
Severe Brain Damage" which gave a range of £165,500 to £235,000. The defender, founding on the same Guidelines
("Moderately Severe Brain Injury"), proposed £150,000 because of the reduced
life expectancy. The defender's original
statement of valuation proposed £180,000 as solatium, with £80,000 of
that attributable to the future. That is
a reasonable estimate for present purposes and produces just over £200,000,
once interest is added.
(d) Loss of Earnings
[12] At the time of the accident, Miss Smart was earning about £250
net week as a bank clerk. There was no
substantial dispute that lost earnings to date, inclusive of interest, are
about £85,000. So far as the future is
concerned, the defender suggested a multiplicand of £14,500 on the assumption
that there must have been some increase in wages paid by the Bank of Scotland
over the last five years. Miss Smart
is now aged 27. There was a dispute
about exactly what initial multiplier should be used. The pursuer proposed 24.28, which applies to
a 27 year old using Ogden Table 10 (Multipliers for loss of earnings to pension
age 65 (females)). The defender proposed
21.40 which, presumably in error, is for a 29 year old using Table 8 (pension
age 60). For present purposes 22.32
(Table 8 for a 27 year old) will be taken as a starting point. Both parties
accepted that there would have to be some small reduction (Table C) to take
into account illness and unemployment.
It will be sufficient in these circumstances to take a multiplier of 20. On that basis, loss of future earnings would
normally be £290,000.
[13] However, the defender submitted that, first, account ought to
be taken of the likelihood that the pursuer would take a "career break" in
order to have a family. Secondly, he
submitted that, in terms of section 9 of the Damages (Scotland) Act 1976 (c
13), the Court had to deduct the proportion of earnings which the pursuer would
have used in living expenses for the period after her predicted early date of
death.
[14] Since I am already making a broad estimate of the pursuer's
life expectancy and setting it at a conservative figure, I will take that
figure (seven) for loss of earnings while in life, rather than attempt to apply
any further discount to it (as may be required after proof). This produces an
initial £101,500. In the absence of any
statistical information, there will be no deduction for a "career break". Miss Smart was in a relatively stable
occupation with a major corporate employer and there is no basis for assuming
that she would require or desire to leave her employment were she to have a
family.
[15] For the years from her predicted date of death to her otherwise
retirement age of, say, sixty, her notional earnings require, in terms of
section 9, to be discounted by the amount of her likely personal living
expenses. It is difficult to make an
assessment of this where a young employed woman is concerned. No doubt, when single, even when living with
her parents, perhaps two thirds of her earnings might go on her own living
expenses. This level would be likely to
drop with marriage and even further with the arrival of children. Taking a very
conservative approach, and assuming that sixty per cent were to be spent on her
own living expenses, there would be £5,800 per annum left subject to the
balance of the multiplier (ie thirteen years) to produce £75,400. Total loss of earnings recoverable will
therefore be around £261,900.
(e) Services
[16] The pursuer produced a report (6/25) from Maggie Sargent RGN
relative to the care regime for Miss Smart.
This outlined Miss Smart's history to date. She was initially taken to Queen
Margaret Hospital,
Dunfermline, and from there to the Western General
Infirmary, Edinburgh, for three weeks.
She returned to hospital in Dunfermline for a
year before being in long term care in Glenrothes. She moved to her present residence at the
Barnum Nursery Home in December 2005.
Miss Smart's parents have now sold their own house and have bought a two
storey dwelling intended to be suitable, at ground floor level, for Miss
Smart. This house was purchased for
£310,000, being funded in part from the first interim damages payment of
£150,000.
[17] After the accident, Mrs Smart (now aged 57) took a year off her
work with the Bank of Scotland in order to look after her daughter. Mr Smart (61) did the same from his
employment as a senior community health officer. He has now retired, although he had not
planned to do that before the accident. Ms Sargent has produced schedules of
the value of services to date using 70 hours for the initial days in hospital
and 21 hours per week (three hours per day) thereafter, the latter figure being
the actual time Mr and Mrs Smart spent and now spend with their daughter. This could
produce just under £50,000 (and more than that if interest is added), based on
hourly rates ranging from £7.49 at first to £8.43 at present. However, the pursuer originally sought a
round figure of £5,000 per annum in his valuation for services to date together
with £14,000 in travelling expenses.
This is, for present purposes, not unreasonable and produces about
£40,000, inclusive of interest. If it
were continued into the future for the next seven years, as again is not
unreasonable, it would have a value of in excess of £35,000.
(f) Care
[18] At present, Miss Smart's care needs are met in the nursery
home, which is a locally authority funded eight bed unit for young disabled
people. She requires two carers for all
transfers and when re-positioned in her wheel chair every three to four
hours. She is turned every two hours at
night. She is bathed every other day. She is fed every three hours. She receives very little therapy at present
other than passive exercises and chest physiotherapy from members of her
family. All of her care is funded by Fife Council. If she were to be cared for
at home, this would not be the case.
[19] Ms Sargent assesses her needs as involving two carers for 14
hours each per day (including a team leader), plus one "waking night" and one
"sleep in" carer. Once other
contingencies are catered for, including a case manager at £10-12,000 per
annum, the annual cost is estimated as approaching £250,000. However, it is
simply not known at this stage just what the net cost of the care regime might
be (i.e. the part not publicly funded).
Ms Sargent records that the local Health Board and Social Services will
fund one 24 hour carer, but just exactly what else will be needed, how it might
interlink with the services claim, and at what cost, is uncertain on the
present material. For present purposes,
I will proceed only on the basis that case management and guardianship will be
needed for the next seven years at a total cost of at least £15,000 per annum
(i.e. £105,000). The cost of future care will require greater specification and
costing in due course. It may form the
basis for a further motion for interim damages.
(g) Accommodation and Equipment
[20] There are, of course, many other potential expenses which may
require to be taken into account. The pursuer has mentioned some of these
specifically. First there is £50,000 for
the adaptation of accommodation. This does not seem too unreasonable. Then
there is the adaptation of a vehicle at £33,503. There is also a specially designed computer
system to be bought at a cost of £32,000.
There will be recurring elements to these but, again for present
purposes, taking a round figure of £100,000 under this head seems relatively
modest.
(h) Conclusion
[21] On the above assessment, damages on the basis of full liability
will comfortably exceed £750,000. Once the
15 per cent is deducted, there will be a minimum of £637,500. In this case, a reasonable proportion of that
would be £478,125 (three quarters), of which the pursuer has had £250,000,
leaving a balance for present purposes of just under £230,000. I will grant the motion for interim damages
in that sum.
