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Cite as: [2008] CSOH 74, [2008] ScotCS CSOH_74

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OUTER HOUSE, COURT OF SESSION

[2008] CSOH 74

OPINION OF LORD MALCOLM

in the cause

BILLY McGHEE

Pursuer;

against

DIAGEO PLC

Defenders:

________________

Pursuer: Smith Q.C., McNaughtan; Digby Brown S.S.C.

Defenders: J.R. Campbell Q.C., Marney; HBM Sayers

16 May 2008

[1] On 20 October 2003 the pursuer was a 20 year old trainee service engineer with Stilcan Industrial Conveyors Ltd. He was told to attend at the defenders' premises at Glen Ord Distillery to carry out maintenance work on scrapers on two conveyor belts. In order to do so he climbed into a hopper and stood on a screw feeder. At the time he believed that the electrical power to the screw feeder had been isolated. However he was mistaken. After a short time the screw feeder started and the pursuer's feet and legs were drawn into it. As a result, he suffered the injuries discussed below.

[2] In this action the pursuer seeks damages for the said injuries. Liability was admitted and I heard a proof limited to the issues of contributory negligence and quantum. For the defenders, Mr Campbell's submission in support of contributory negligence was that the pursuer had been told by the defenders' Mr Stacey Nicholl that the screw feeder was about to start, thus the pursuer was partly to blame for the accident. Mr Campbell suggested that this should be recognised by a reduction in damages of between 20-25%. The only evidence in support of the contributory negligence case came from Mr Nicholl. The pursuer denied that he had been told that the screw feeder was about to start. He understood that the feeder had been isolated and that he was not at risk when standing upon it. Mr Campbell submitted that it was inherently improbable that Mr Nicholl would not have told the pursuer that the feeder was about to become operational. However, given the clear danger of standing on a working screw feeder, to my mind the more obvious improbability is that the pursuer would do this if Mr Nicholl had told him that it was about to start. During the evidence the defenders sought to establish that the pursuer could have carried out the work without climbing into the hopper and so without standing on the screw feeder. To do this he would have had to unscrew a substantial metal plate, something which may have required assistance. This metal plate was referred to by Mr Campbell as "an access hatch". The pursuer denied any knowledge of this possibility. Furthermore it was clear from the photographs produced that this possible means of access to the belt was by no means readily apparent. The defenders' pleadings included a case to the effect that the defenders' representatives understood that the pursuer would use the access hatch in which case he would not be near the screw feeder. Wisely Mr Campbell did not pursue any argument based on the so called access hatch. Nonetheless it stands uneasily with the proposition that Mr Nicholl must have told the pursuer about the imminent operation of the screw feeder. Why should it be concluded that Mr Nicholl must have said this, if he did not expect the pursuer to be close to the screw feeder?

[3] The burden of proving that the pursuer knew that the screw feeder was about to start rests on the defenders. The only evidence in support of it came from Mr Nicholl. His evidence was in somewhat vague and uncertain terms. It was denied by the pursuer and was uncorroborated. Further there remains at least the possibility that Mr Nicholl tried but failed to get this message over to the pursuer. In all the circumstances I have no difficulty in concluding that the defenders have not met the burden of proof resting upon them, therefore I reject the case of contributory negligence.

[4] The bulk of the submissions dealt with quantum. There was substantial agreement between the parties, but they were at odds on the appropriate figure for future wage loss. Before going into that matter, it is appropriate to outline the nature of the injuries sustained by the pursuer and his ongoing disability. Mr David W. Bell, a consultant orthopaedic surgeon, spoke to his medical report dated 14 February 2005. In summary the pursuer sustained a fracture of the right ankle and displaced fractures of the second and third metatarsal bones of the foot, along with associated gross swelling of the foot. A metal plate and various screws were inserted into the ankle. In due course the pursuer received physiotherapy and other treatment designed to overcome swelling and stiffness in the foot and ankle. At the time of the report, some 16 months after the accident, the pursuer continued to experience pain and stiffness in the foot, especially if walking for any distance. He could not run nor pursue his passion for playing football. The right lower leg showed no residual muscle wasting of the calf when compared with the other leg. Movement of the ankle was full and pain free. There was some restriction of movement in the foot with associated discomfort, indicative of activity induced forefoot pain. In the surgeon's view the pursuer could undertake most jobs, but the foot would tire after prolonged standing in one position. Ongoing arch pain in the foot is a permanent legacy of the accident. It is clear that the pursuer's footballing days are over. Mr Bell's evidence was unchallenged and I accept all of it.

[5] For the defenders Dr C.R. Rodger, a consultant psychiatrist, gave evidence relating to certain psychological difficulties suffered by the pursuer. However, in so far as they persist, they are responsive to appropriate treatment, and it is not envisaged that they will have any substantial impact on the pursuer's employment prospects or earning capacity. This matter did not figure to any material extent in the pursuer's calculation of future loss of earnings.

[6] The pursuer said that he has a limp; cannot walk any distance nor carry a hoover up stairs; and suffers pain and stiffness in the ankle and foot. He certainly cannot play football. When younger he had the opportunity to sign a pre-contract agreement with Dundee United Football Club. However he delayed and the offer was never repeated. The pursuer enjoyed a spell as an amateur with Queens Park Football Club, but until the accident in the main he played for a team called Busby Amateurs. At the time of the accident he still had ambitions of professional football. In cross-examination he accepted that after the Dundee United episode he was never offered a professional contract. He had been in continuous employment after leaving school, albeit he had only recently begun his work with Stilcan. However he was confident that he would have progressed with that company. In the result Stilcan ceased trading in 2004. After the accident the pursuer had attempted to complete an HGV licence training course, but he was not fit for the work involved. He also attempted to work in a call centre. This was at a time when he had psychological problems and he did not cope with the particular challenges of that form of employment. The pursuer is very keen to obtain employment and would be willing to undertake appropriate retraining. The pursuer impressed me as an honest and straightforward person who will do all that is necessary to obtain employment in the future.

[7] Employment reports were spoken to by Mr Peter Davies on behalf of the pursuer and by Mr Gordon Cameron on behalf of the defenders. There was little between them on the material issues and figures. Mr Davies' assessment of the pursuer's earning capacity, had there been no accident, was higher than that of Mr Cameron. This was because he assumed that on Stilcan's demise the pursuer would have obtained similar employment with a company specialising in the repair and maintenance of conveyor belts. The work carried out by Stilcan would still have to be done, and by 2004 the pursuer would have been trained for this specialist activity. Mr Cameron considered that this was too much of a "niche market", however on this issue I consider that it would be both fair and reasonable to quantify the pursuer's claim on the basis put forward by Mr Davies. As Mr Davies commented, the pursuer was in the niche market. Mr Davies said that the pursuer has good potential for retraining. This would open up more sedentary forms of employment which would nonetheless establish his earning capacity at a level similar to that of his pre-accident employment. The pursuer would require to obtain the necessary treatment for his psychological problems and then retrain, all as part of a vocational rehabilitation plan. An HND course would take about three years. The pursuer was happy to attend college for this purpose and was more than capable of completing such a course.

[8] The only issue in dispute regarding quantum was the appropriate figure for future loss of earnings. For the pursuer Mr Smith produced various schedules based on either Mr Davies' or Mr Cameron's figures under reference to the relevant tables in the sixth edition of the Ogden Tables and dependent upon whether the pursuer did or did not fulfil the criteria for disability at the time of the proof. I have no difficulty in finding that the pursuer is disabled in terms of the criteria in the Ogden Tables. In his introduction to the sixth edition Robin de Wilde, Q.C. states that the range of disabilities covered by the term "disabled" in the tables is very wide. Kemp & Kemp vol. 1 10-015 speaks of the relatively low threshold required in this regard, and of the need for potentially significant adjustment of the tables depending on the extent of a particular claimant's disability. It is acknowledged that this matter requires to be assessed on a "case by case basis". Reference can also be made to paragraphs 31 and 32 of the explanatory notes to the tables which stress the need to consider the particular circumstances of the case rather than simply apply the tables. However it is not clear to me that sufficient information is provided as to the assumptions underlying the tables to allow this adjustment to be made on any reasonably accurate basis, nor to identify when the nature of a particular claimant's disability makes it appropriate to apply the tables without any adjustment. In addition paragraph 44 of the explanatory notes states that the relevant tables assume that there will be no change in educational achievement after the accident. In the present case the evidence of the pursuer, Mr Davies and Mr Cameron demonstrates that it is likely that the pursuer will take the opportunity to obtain additional qualifications which will open up a wide range of work to him, notwithstanding his residual disability.

[9] Given my findings it is appropriate to focus on Mr Smith's schedule headed "Peter Davies' evidence and the pursuer disabled at the time of the proof". This schedule shows a value for the pursuer's pre-accident earning capacity of £402, 500, and a value post-accident of £72,500 (rounded), suggesting a claim in the region of £330,000. While Mr Smith submitted that I must simply apply the tables, in my view it is clear that an award of that size would be excessive, presumably because the tables are based on some average disability of greater severity than that which afflicts the pursuer. Both employment consultants accepted that after appropriate retraining the pursuer would be fit for work which would provide an earning capacity broadly equivalent to that arising from his pre-accident employment. It follows that I am not prepared to accept Mr Smith's submission based upon that schedule.

[10] For the defenders Mr Campbell put forward an Ogden Tables calculation on the basis of Mr Cameron's figures with the pursuer not being disabled at the time of the proof. This indicated a claim of £88,250 for future wage loss. Given the above conclusions the assumptions made in this calculation are inappropriate. However on the same sheet Mr Campbell put forward an alternative approach which was based upon the pursuer undertaking appropriate treatment for his psychological difficulties and then retraining, during which four year period he would earn nothing, but thereafter he would enjoy a potential earning capacity in excess of Mr Cameron's figures for the likely no accident scenario. That calculation indicated a claim of £60,000.

[11] I consider it reasonable and realistic in the circumstances of this case to proceed on the basis that after a rehabilitation period of about one year and with appropriate retraining thereafter the pursuer can restore his pre-accident earning capacity, albeit he will still remain disadvantaged in the labour market because of his continuing disability. In order to reach that rehabilitated and retrained position it would be appropriate to allow a total of four years future wage loss using Mr Davies' multiplicand of £18,500, giving a loss of £74,000 for that period. Thereafter the pursuer's earning capacity would be much the same as the likely outcome if there had been no accident. Nonetheless I consider that it would be appropriate to recognise some further loss based on his continuing disability which, on a broad brush basis, I assess at a further lump sum figure of £74,000, giving a total award in this regard of £148,000. This also acknowledges that the sixth edition of the Ogden Tables demonstrates that disabled persons suffer in the labour market to a greater extent than was previously understood. If authority is required for the use of a lump sum to calculate this element of the claim, given all the uncertainties and imponderables I find it in the judgment of Lord Justice Steyn (as he then was) in Blamire v South Cumbria Health Authority [1993] P.I.Q.R. 1. I have given consideration to whether the relevant Ogden Tables should be applied in the manner urged upon me by Mr Smith. However the tables are not well designed for the particular circumstances of this case, and in particular the retraining opportunity and the enhanced employment prospects thereafter. In addition there are considerable uncertainties and imponderables in respect of the impact of the pursuer's residual disability once he is trained for relatively well paid but sedentary employment which militate against the use of the tables. I have already commented that a simple application of the tables would produce a clearly excessive award, and the approach which I have adopted has avoided the need for an essentially arbitrary adjustment of the tables in an attempt to reflect the particular level of disability suffered by the pursuer. My attention was drawn to a passage in the speech of Lord Lloyd of Berwick in Wells v Wells [1999] 1 A.C. 345 at 379 in which his Lordship advised that while there may well be special factors in particular cases, the tables should now be regarded as "the starting point rather than a check". However in its context it is clear that this comment was directed to earlier cases where application of the tables was entirely appropriate but the judge wrongly decided to interfere with them on "impressionistic grounds" and the like. For example, in the case of a whole life multiplier with an agreed expectation of life there is no room for a judicial discount on the figure given in the tables. In addition the explanatory notes to the tables expressly recognise that there will be cases where a Blamire approach is applicable (paragraph 31). In any event, the above discussion indicates that I have started from a consideration of the tables, albeit in the result I have not applied them. Mr Campbell recognised that it would be appropriate to allow for the cost of treatment for the psychological problems, and so I increase the final sum to £149,000.

[12] As to the potential loss of a professional footballing career, Mr Smith asked for an award of £30,000. However I agree with Mr Campbell's submission that this claim is too speculative. Some four years had passed since the Dundee United approach without any offer or even suggestion of a possible offer of professional football. There is no evidence to indicate that at the time of the accident the pursuer had a material prospect of a career in the professional ranks. If there had been evidence that he was attracting the interest of a professional club then the position might have been different.

[13] In terms of the Joint Minute I shall

(a) award solatium at a sum of £30,000, with interest thereon to the date of the joint minute (12 March 2008) of £3,519 and thereafter interest at 4% per annum on £30,000 to the date of this decree, and thereafter interest on the entire sum at 8% per annum until payment;

(b) award past wage loss at the sum of £50,000, inclusive of interest, with interest from the date of decree at 8% per annum until payment; and

[14] Finally, I shall award the sum of £149,000 by way of future loss, with interest at the rate of 8% per annum from the date of decree until payment. I shall also reserve the question of expenses.

[15] An issue arises as to whether the court is obliged to apply the terms of section 15 of the Social Security (Recovery of Benefits) Act 1997, and if so in what terms. The matter may be complicated by the fact that the award which I have made in respect of part of the relevant five year period flows from the terms of the parties' agreement. I shall put the case out By Order to allow parties to address this issue and also, if necessary, that of expenses.