Scottish Court of Session Decisions

Pursuer: C. Smith; Allan McDougall

Defender: Watson, Solicitor Advocate; Simpson & Marwick

20 March 2009

[1] This is a motion for interim damages.

Circumstances of the Claim

[2] The pursuer, whose date of birth is 6 February 1978 was injured in a road traffic accident on 13 March 2004. He was driving a car in which three of his children were passengers, including his daughter aged three who was in a booster seat in the front. An employee of the defenders, driving in course of his work, collided with the back of the pursuer's car while it was stationary. The pursuer saw that the collision was about to happen and attempted to brace himself and protect this daughter.

[3] Immediately after the collision the pursuer wanted to get out of the car and speak to the other driver. He attempted to do so. He felt pain in his back, and lost his balance, falling into a puddle in the road. He could not get up, as his back seemed to have locked. He was very worried about his children, fearing that they might get out of the car. He was taken to hospital by ambulance, on a spinal board. He was examined and discharged. He was still in pain but was able to move.

[4] On the night of the accident the pursuer felt a tremor in his hand, for which medication was prescribed. About two weeks later, when he was considering return to work, he suffered a period of loss of consciousness when in his garden. He was admitted to hospital and advised to discontinue the medication, but understood his GP's advice to be that he should continue it, which he did. The next day he collapsed while out shopping. He was again admitted to hospital and ultimately discharged having been told that he might have epilepsy. He found this diagnosis emotionally crushing and also very difficult to cope with practically, as he lived with his wife and young family (then five children, now six) in an isolated house in the country. His wife did not drive.

[5] The pursuer continued to suffer seizures frequently and was treated and investigated in hospital. He was prescribed anti epileptic drugs, but was advised by treating consultants that he may not have epilepsy. He found this confusing. A consultant neurologist in Glasgow carried out video telemetry and a diagnosis of pseudo seizures was made, in or around 2006. There was a period of confusion in which the pursuer thought that his GP disagreed with the diagnosis. The seizures continued, sometimes as often as three or four times in a week. The reason for the seizures was and is not clear. The pursuer may suffer post traumatic stress disorder. The seizures were very debilitating for the pursuer. Further, he suffered nightmares in which he seemed to relive the accident and in which his children were injured. The pursuer's condition was caused by the accident. He was unfit for work throughout the period from the date of the accident to the hearing. He found that stressful. He found it difficult to support his family on benefits. The pursuer was treated after the diagnosis of pseudo seizures by a clinical psychologist. That treatment was continuing at the date of the hearing. The prognosis was uncertain but there was at least a probability that a full recovery might be achieved. Two diets of proof fixed for 2008 had been discharged due to uncertainty of prognosis and a new diet had been fixed for March 2010.

[6] The pursuer and his family lived on benefits in the sum of about £2,000 per month. The pursuer's wife had started a business in dog breeding but it was in its early days and was not yet profitable. Debts had been incurred to family members. The defenders had paid the pursuer an interim payment of £30,000 in January 2008 much of which had been used to repay those debts. The pursuer had prior to the accident worked in various different jobs, latterly as a roofer and driver.

Pursuer's submissions

[7] Counsel for the pursuer sought payment of £30,000 as interim damages. She submitted that for the purposes of the motion she would assume that a full recovery would take place by the date of the proof. In respect of solatium Counsel referred me to the case of Hancock, [1998] C.L.Y. 1505, a case of criminal injuries compensation. She explained that she and Mr Watson had agreed for the purposes of the motion the sum for past wage loss at £58,700, but that figure included nothing in respect of the possibility that the pursuer might have obtained better employment. She therefore sought the higher figure of £70,000.

[8] She suggested that the following values be taken for the purposes of the motion

Solatium £60,000

Past wage loss £70,000

Total £130,000

[9] She submitted that a payment of £30,000 would take the total paid in interim damages to less than half of the total value of the claim. This she submitted was clearly a reasonable proportion of the damages which the pursuer was likely to recover, and thus within the range which the court may order the defenders to pay. Counsel did not refer to any sums paid in respect of benefits.

Defenders' submissions

[10] The solicitor advocate for the defenders submitted that the sum of £30,000 was an excessive figure in light of the value of the claim and sums already paid. He proceeded also on the basis that the pursuer would achieve a full recovery by the date of the proof. He submitted that the correct figure for solatium was £25,000. He distinguished Hancock on the basis that the applicant had suffered epilepsy and there was always a chance of breakthrough of that condition even if it were controlled; that the applicant had also suffered loss of vision; and that he had needed to use a wheelchair from time to time. In his submission the Judicial Studies Board Guidelines in respect of petit mal gave a range between £35,000 and £83,000, and on any view the pursuer should be entitled to less than £40,000. However, as he suffered not epilepsy but pseudo seizures connected to post traumatic stress disorder the Judicial Studies Board Guidelines for that condition were relevant. They gave a range of £20,000 to £25,000 for a moderate case of post traumatic stress disorder. The defenders had made payment to the pursuer of £30,000 in 2008 and in so doing were obliged to make payment of recoverable benefits in terms of the Social Security (Recovery of Benefits) Act 1997. I shall refer to such payments as 'sums due to be paid under CRU'. The sum paid in 2008 was approximately £35,000. If a further payment was made to the pursuer now, a further sum would be paid under the act, of approximately £8,400. Thus the value of the claim should be seen in this way

[11] The solicitor advocate argued that  an offer had been made and rejected of payment of £10,000 in interim damages. If such a sum were to be paid together with the sum due in respect of benefits, then the figure reached, £83,400, was very close to the full value of the claim.

[12] The figures already paid to the pursuer and as sums due under CRU were agreed, and there was no dispute that the figure given for the sum due under CRU was accurate and would increase as time went by.

Discussion
[13] Rule of Court 43.11 provides that the court may ordain the defender to make an interim payment to the pursuer of such sum 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. Thus the court has a wide discretion.

[14] In making any such award the court does not have all the knowledge which will be available at the date of proof. While rule 43.12 provides for repayment by the pursuer of sums paid by way of interim damages which exceed the sums ultimately recovered by the pursuer it is plainly undesirable that any such sums should be paid and then repaid. Hence the provisions of Rule 43.11 that only a reasonable proportion of the sums likely to be recovered should be paid in interim damages.

[15] In my opinion the figure appropriate for solatium for the purposes of the motion is £40,000. That proceeds on the basis adopted by both parties, that the pursuer achieves a full recovery by the date of proof and that his condition since the accident is as described in the medical records and reports lodged. I agree with the solicitor advocate for the defenders that the claimant in Hancock appeared to suffer more permanently disabling problems than the pursuer. I do not accept however that the pseudo seizures from which the pursuer suffers should not be compared to cases in which epilepsy is diagnosed, given that the effects of the seizures are similar.

[16] As parties agreed past wage loss at £58,700 I regard that as the appropriate figure and am not prepared at this stage to accept that a higher figure should be taken to reflect the possibility of the pursuer having obtained better paid employment.

[17] Thus the total valuation for the purposes of the motion is £98,700. I am prepared to round that up to £100,000. If the sum offered by the defenders of £10,000 together with the sum due under CRU is paid, the total paid will be a little over £80,000. I do not regard any more than that as a reasonable proportion of the sum likely to be recovered taking into account the uncertainties in valuing the claim.

[18] I am required by section 15 (2) of the Social Security (Recovery of Benefits) Act 1997 to specify the damages due for the relevant statutory heads of compensation during the five years from the date of the accident.

[19] I had this case put out by order so that parties might address me on the question of attribution of any sum. Further, the pursuer was given an opportunity to lodge a schedule of damages as required by Practice Note No 3 of 1997. In the event counsel for the pursuer sought to argue a higher valuation in the decision than that first argued by her. I did not regard that as appropriate. She then submitted that any payment ordered to be made by the defenders to the pursuer should be attributed 50% to solatium and 50% to wage loss. The solicitor advocate for the defenders submitted that the sum of £10,000 should be the limit of any award and that it should be attributed to solatium.

[20] In all the circumstances I award a sum of £19,475 as interim damages, of which £10,000 is attributable to solatium and £9,475 is attributable to past wage loss.