Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 4
	OPINION OF MORAG WISE Q.C. (sitting as a temporary judge) in the cause COLIN LEGGAT Pursuer; against (FIRST) ANTHONY RALPH AND (SECOND) ALLIANZ INSURANCE PLC Defenders: ______________

Pursuer: McAuley, Q.C., B Fitzpatrick ; Digby Brown

Defenders: J Thompson, HBM Sayers

13 January 2010

Introduction

[1] The pursuer ("Mr Leggat") sues for damage for personal injuries sustained in a Road Traffic accident on 30 May 2005. Liability is admitted and no question of contributory negligence arises. The proof was accordingly restricted to the issue of quantum.

[2] In addition to the pursuer himself, evidence was led in his case from his wife, Lesley Leggat, Andrew Crawford, a former colleague of the pursuer, Mr Angus McLean (Consultant Orthopaedic Surgeon), Mr Barral, the pursuer's accountant and from Peter Davis (an Employment and Vocational and Rehabilitation Consultant). On behalf of the defenders evidence was led from one witness, James R Lindsay, (Consultant Orthopaedic Surgeon). There was some reference during the proof to a report by Gordon Cameron, Vocational Consultant (no 7/2 of process) but Mr Cameron did not give evidence.

Circumstances of the accident

[3] On 30 May 2005, Mr Leggat was riding his Kawasaki motor cycle on the A736 near Barrhead. He was riding alone wearing appropriate protective leather clothing, helmet, boots and gloves. As he was travelling he approached a stationery Mercedes vehicle on the opposite side of the road which was indicating to turn right. Mr Leggat slowed down, but when the Mercedes seemed to be giving way to him he accelerated. The other vehicle then turned right into Mr Leggat's path causing a collision. Mr Leggat was thrown from his motorbike and remembered sliding across the road before coming into contact with another vehicle. He was unable to move as a result of pain in his pelvic region.

[4] Mr Leggat was taken by ambulance to the Royal Alexandra Hospital in Paisley. He recalled being seen by an Orthopaedic Surgeon on his arrival at hospital. When he told the attending surgeon that he was an aircraft engineer, the surgeon looked at Mr Leggat's hands and told him he wouldn't be undertaking that occupation again. A tourniquet was placed round Mr Leggat's hips to control the internal bleeding and he was taken to the Intensive Care Unit.

The nature and extent of the injuries sustained in the accident
[5] On admission to hospital Mr Leggat was noted to have multiple injuries. He required a massive blood transfusion. He had an "open book" unstable pelvic fracture, together with multiple fractures and dislocation to both hands, including his thumbs. A pelvic external fixator was applied which was not removed for several weeks. He required to undergo several surgical procedures. On 9 June 2005, he underwent surgery of his pelvic and hand injuries. Internal fixators were fitted to his pelvis and external fixators and metal pins were applied to both right and left hands. Those wires and external fixators were removed on 19 July 2005.

[6] Mr Leggat required to remain in hospital until 25 July 2005. Thereafter he developed a wound infection associated with the surgery to his pelvis. He was treated with antibiotics but required further surgery on 31 August 2005, 14 September and on 16 September 2005. He was finally discharged on 23 September 2005 after the pelvic injury had been stabilized. He had required gutter crutches in order to walk for the two months prior to that. He underwent physiotherapy to his hands for some time.

[7] In summary, the pursuer sustained a number of injuries in the accident, some of which were life threatening. His blood loss was so significant that a massive transfusion was required. While the various surgical procedures were ultimately successful, Mr Leggat has been left with residual disabilities and discomfort all of which were discussed by the medical experts as detailed below.

The nature of the pursuer's employment
[8] Mr Leggat has worked as a Licensed Aircraft Maintenance Engineer for many years. His CV was lodged (no 6/22 of process). In addition to various qualifications in the field of aircraft maintenance, Mr Leggat had, between 1987 and 2005 undertaken about ten courses relevant to avionics systems and electricals and communication systems. Between 1996 and November 2005 he was employed as a shift leader with Monarch Aircraft Engineering Limited. In essence, Mr Leggat's qualification allows him to certify as fit to fly a number of listed aircrafts. As supervisor and shift leader, Mr Leggat was in charge of a group of about five people working on the line maintenance of an aircraft waiting for departure. He would deal with a maximum of seven arrivals and departures in one day although this decreased towards the end of his time at Monarch. He also worked night shift and required to debrief crews who reported defects. He would then rectify any defects that rendered the aircraft unairworthy.

[9] The pursuer's work is clearly highly skilled. It involves an unusual combination of high manual dexterity together with heavy manual work. For example he will sometimes require to take large panels off an aircraft to get access to certain equipment. Then in contrast he will require to manipulate screws at the corner of small windows, replace sensors on the undercarriage of an aircraft or take pins off terminal blocks. He requires to use a pincer movement to put a new crimp on. Then he might require to lift a battery weighing 60 kilos. In relation to the extent of the manual dexterity required for Mr Leggat's work, a number of pins and applicators had been lodged in process and were spoken to in evidence. (no 6/23 of process). Mr Leggat explained that this selection of pins, connectors and extraction tools were those that he was used to working with. For example he pointed to a selection of tiny pins that he would require to fit into high density plugs. There were also orange connector pins, a spade terminal used for power feeds and a gauge wire for feeding power distribution.

[10] Mr Leggat confirmed that in November 2005 he returned to work and was given a more managerial sedentary role after a previous crew chief had left. Initially he was not able to carry out the same work as he had prior to the accident. He made up rosters, prepared accounts and other undertook other office work. As time went on he did require to help out on the physical side of the job when required.

[11] The pursuer was made redundant from Monarch in December 2007. By that time he had been working for some months in his pre-accident position. He had not enjoyed the period of office work as there was no end product or job satisfaction. During 2008 he became self employed and now works in that capacity as a consultant. He formed a company, Leggat Aviation Limited. Some of his contracts are short term but the work is fairly consistent. It has primarily involved base maintenance of aircraft in hangers, mostly making modifications to aircrafts. In terms of the physical demands, these are possibly even greater than in his previous line maintenance work. He requires to spend twelve hours at a time with tools using his hands for nearly all of that period.

[12] Mr Leggat's company accounts for the year ended January 2009 were produced and he spoke to these (no 6/28 of process). Whilst Mrs Leggat is a director in the company she does not undertake active work within it. The profit earned in the most recent year within the company was £35,779. Mr Leggat said that he would expect to do a little better than that after the current recession is over. His current earnings are comparable with his salary when at Monarch. A number of payslips from that employment had been lodged and these illustrate that, with overtime, Mr Leggat's monthly net payments ranged from about £2,700 per month to £3,300 per month (no 6/5 and 6/6 of process).

[13] Prior to the accident Mr Leggat had undertaken some course work towards an Open University Degree in Information Technology. He had not and has not sought any employment in that area.

The pursuer's current disabilities and medical prognosis
[14] Mr Leggat spoke to those injuries which continue to cause him difficulties. He continues to suffer pain in the pelvic region when he sits or stands for too long. From time to time he requires to work in cramped spaces and that causes him discomfort. If he has to crawl it hurts in the wound area where he has scarring. So far as his hands are concerned he feels the restriction in his thumbs in particular when crimping with pliers. He tries to overcome this by holding the pliers further up the handles or he uses both hands where previously he would have used one. In respect of the "fiddly" jobs, Mr Leggat feels he has lost the ability to hold numerous of the smaller pins. The base of his thumbs are in constant pain and while he tries to disregard that pain when working, he requires to take a break after two and a half hours or so. Thus far he has managed to do that without drawing attention to himself. His thumbs are particularly painful on contact.

[15] Prior to the accident Mr Leggat was a keen cyclist, both push bikes and motor cycles. At one time he cycled on his push bike 11 miles to work and at weekends he would go on a 40 mile round cycle trip. He has less stamina than he did prior to the accident. He no longer rides a motor cycle as he is concerned that he has insufficient strength in his wrists to maintain full control. He has managed some push bike cycling, although much less than before.

[16] Ideally Mr Leggat would wish to continue working until retirement but he is currently concerned that he may not be able to keep up with the work. He was aware that the view expressed by the medical experts was that his hands will not get any better and he is concerned that this, added to the problem with his pelvis will impede his ability to continue in his current occupation in the long term. In terms of the loss of manual dexterity, Mr Leggat considers that his right hand may be more debilitated although as it is his dominant hand he felt he was simply noticing the weakness more when requiring to undertake fine manipulative tasks.

[17] Expert evidence was led in the pursuer's case from Angus McLean MB ChB FRCS Trauma and ORTH(ED) a Consultant Trauma and Orthopaedic Surgeon at Glasgow Royal Infirmary. Mr McLean saw and examined Mr Leggat on three occasions between February 2006 and November 2008. He prepared three reports for the assistance of the court - (6/1, 6/2 and 6/19 of process). Mr McLean has been a lead Clinician and Consultant Trauma and Orthopaedic Surgeon since 2005. His work primarily involves surgery after trauma such as road accidents and industrial accidents and domestic accidents. He also has a referral practice for complex and poly trauma cases. He heads up a team with two others. He also treats routine general orthopaedic conditions. His work requires him to deal with upper and lower limbs. He undertakes about 400 trauma operations per year. When training he undertook a period of 18 months exclusively in hand surgery, which is now an integral part of his day to day work. He routinely deals with pelvic injuries.

[18] Under reference to the pursuer's medical records (no 6/17 of process), Mr McLean listed the various injuries that I have found the pursuer sustained as a result of an accident. So far as the hand injuries were concerned, Mr McLean explained that as the pursuer had been holding onto the handlebars of his motorcycle during a collision at speed, the handlebars were forced into both hands causing devastating injuries. Mr McLean indicated that it was clear from the medical records and operation notes that Mr Leggat's injuries had been particularly severe and that the combination of his injuries were such that it might not have been anticipated that he would return to work at all. In the event, Mr Leggat's recovery had progressed beyond what Mr McLean would have expected. However, when he first saw Mr Leggat on 22 February 2006 the pursuer continued to have pain in the front and back of the pelvis albeit that he had managed to return to general activities. As an avionics engineer, Mr McLean understood that Mr Leggat required to undertake both heavy manual work such as changing tyres and fine dexterous tasks manipulating very small pieces of equipment. Mr McLean's findings on examination of Mr Leggat in 2006 are well recorded in his first report (no 6/1 of process). In summary, the prognosis at that time was that Mr McLean did not share Mr Leggat's optimism about the future function of the right wrist and hand. He considered that the pursuer was at risk of developing arthritis at the base of the thumb which might require future surgery. At that time he estimated the chance of such surgery being required at about 60% in the next 15 years. So far as the left hand was concerned in 2006 Mr McLean considered that it was very stiff which restricted the pursuer's function and ability resulting in a near certainty that he would develop arthritis in the base of the thumb and require surgery. The point was made that even with further surgery, Mr Leggat's hand would never return to normal. So far as the pelvic injury, which had been life threatening, was concerned, Mr McLean considered that Mr Leggat would continue to have ongoing discomfort with intermittent pain from his posterior pelvis long term. Overall, Mr McLean considered that Mr Leggat tended to grossly underestimate the severity of his injuries and to down play his ongoing symptoms.

[19] On the second occasion that Mr McLean examined Mr Leggat he produced a report of 28 March 2007, (no 6/2 of process). At that point Mr McLean formed the view that the pursuer had consolidated in terms of recovery. He continued to have problems in areas where he had been injured. He experienced pain using his thumb and had difficulty in handling money. The movements in his wrist had recovered but the movements in this thumb remained significantly restricted. He had some function but it was painful. His grip strength in the right hand was 90% of normal by that time but there was still a 40% risk of surgery within 15 years. There was permanent stiffness in the left hand with a 70% chance of surgery being required. So far as the pelvic injury was concerned there had been no significant change since examination in February 2006. Analgesia was still required for the pain intermittently.

[20] Mr McLean examined Mr Leggat for a third time in November 2008 and produced his third report (no 6/19 of process). The important account from the pursuer at that time was that he described a feeling of deterioration of his right hand, albeit there was no significant change on examination. His pinch grip was only 70% of normal and clinically he was already developing arthritis. So far as the left hand was concerned, Mr McLean found that the grip strength was reduced from the previous occasion but otherwise the opinion and prognosis for that hand were unchanged. There continued to be moderate ongoing discomfort from the pelvis injury. Mr McLean had taken x-rays. These were produced (no 6/36 of process) and were exhibited during the proof and spoken to by Mr McLean. He explained that the x-ray of the left hand showed a complete loss of the joint space between metacarpal joints two, three and four. The joint at the base of the thumb was irregular showing a little space. The x-ray clearly showed established arthritis at the base of the left thumb. This was secondary arthritis related to the accident. The x-ray of the right hand also showed such secondary arthritis. Mr McLean explained that the treatment for that was tailored to the individual patient and his circumstances. He described Mr Leggat's right hand as being at the severe end stage of arthritis whereas the left hand had gone beyond severe. When that stage is reached you would expect a little less pain other than at the thumb. The pain on contact that Mr Leggat had described was consistent with arthritis. Turning to the x-ray of the pelvis, the metal work inserted during surgery was clearly visible.

[21] Mr McLean's overall final opinion and prognosis was that Mr Leggat had made no significant progress between the second and third reports. He has significant disability in both hands with stiffness and pain which has to some extent deteriorated due to secondary arthritis attributable to his accident. He remains at a 40-70% chance of requiring further surgery to his hands, the purpose of which would be pain relief rather than improving his ability in fine functions, the restriction of which will remain permanent. His pelvic symptoms have stabilised and the mild to moderate discomfort in that region is likely to be permanent.

[22] For the sake of completeness, Mr McLean also noted on each occasion he saw the pursuer that Mr Leggat had sustained other injuries including a soft tissue injury to his cervical spine region and a soft tissue injury to the shoulder at the time of his initial accident. These had healed well and had been masked by the more serious injuries than he had sustained and which resulted in ongoing disability as described above.

[23] Mr McLean remarked that at each of their meetings Mr Leggat had been stoical about the accident and its consequences. Looking ahead, Mr McLean considered that Mr Leggat will increasingly struggle to carry out the work in which he is currently engaged. On balance his opinion was that within 5 years Mr Leggat will be unable to do so. He would be most surprised if Mr Leggat managed to carry on for another 5 years in terms of his current work even taking into account his stoicism. He commented that if Mr Leggat presented tomorrow at Mr McLean's clinic he would be offered surgery and advised to stop the type of work he was presently undertaking. The stiffness he was experiencing results in him having difficulty both with fine tasks and heavy manual labour. Although his left hand appears to have deteriorated more, because his right hand is dominant, the problems are probably equal as between the two. So far as the type of surgery he would recommend is concerned, this would either be arthrodesis which is a fusion to relieve pain or a trapeziectomy where the trapezium (the small bone at the base of the thumb) is removed. The problem with the former is that it can result in the thumb being floppy and never normal. The problem with the latter type of operation is that it is contra indicated for heavy manual workers and those under 50. Mr McLean was very clear that the aim of both types of surgery is to relieve pain only and there is no question of normality being restored thereafter in terms of function.

[24] Mr James R Lindsay MB ChB, FRCS (Ed), FCS Orth (SA) gave evidence for the Defenders. He is a Consultant Orthopaedic Surgeon with Forth Valley Heath Trust and has been a consultant in the UK for the last twelve years. Prior to that he was a consultant orthopaedic surgeon in South Africa. Mr Lindsay's particular area of expertise is hand surgery. He carries out up to 10 operations per week. He had seen and examined the pursuer on one occasion, on 21 February 2009, prepared a report (no 7/1 of process) and a subsequent letter no 7/3 of process. He spoke to these in evidence.

[25] When Mr Lindsay examined the pursuer in February 2009 for the purpose of his report he carried out a number of tests. He found that Mr Leggat was unable to fully oppose his right thumb across the palm of his right hand, being 2 centimetres short of being able to fulfil that manoeuvre. There was also some restriction in the full opposition of the left thumb. So far as extension of the wrist was concerned there was restriction in both hands. The right wrist could be extended to 50 degrees (normal is 70 degrees) and the left wrist was 45 degrees. His grip strength was 70% of expected normal on the right hand and 60% in the left. He found Mr Leggat's pinch strength to be within the expected normal range. Overall Mr Lindsay found that the pursuer's left hand was worse than the right in terms of pain and a little worse in terms of stiffness. He was of the view that pain and stiffness are intimately related and that pain can inhibit the use of the thumb and the hand as a whole. However, he didn't consider that the restrictions he found would prevent Mr Leggat from carrying out his work, which he had understood involved using pliers and crimping tools and picking up pins and screws.

[26] When Mr Lindsay was shown the items that the pursuer requires to use at work (no 6/23 of process) he accepted that these were much smaller and finer than he had envisaged. He had imagined traditional screws and bolts when told of Mr Leggat's work. Having seen the items he agreed that it was unlikely that Mr Leggat could manage his work with the same facility as prior to the accident. He had no reason to doubt the pursuer's word that he now has some problems using the implements.

[27] Mr Lindsay thought that Mr Maclean's estimate of the likelihood of Mr Leggat requiring surgery was reasonable, although he considered that the use of anti inflammatory drugs and cortisone injections could "buy him time" in that regard, perhaps up to several years. He differed from Mr MacLean in relation to the type of surgery that should be carried out and the nature and extent of a successful outcome. In general terms he believed that traditional trapeziectomy carried less risk and that it was difficult where arthrodesis was attempted to make a complete union of the bone with available fixation techniques. He would recommend trapeziectomy for Mr Leggat. He hadn't come across many cases of post traumatic arthritis but he thought that there would be no difference in tissue quality between that condition and osteoarthritis. In terms of outcome he would expect increased mobility of the thumb, but in terms of fine manipulation he would be much the same. But he considered that the relief of pain would mean that the function of the pursuer's hand as a whole would improve. The optimum time for surgery was when pain was interfering with function. Surgery would relieve the pain and if the pursuer was working up until the time of his surgery Mr Lindsay said he would see no reason why he could not return to his current type of work thereafter. He described Mr Leggat as "very straightforward and courageous", making him the ideal candidate for successful surgery.

[28] Mr Lindsay spoke to a paper (Tendon Interposition Arhroplasty Versus Arthrodesis for the treatment of Trapeziometacarpal Arthritis: "A Retrospective Comparative Follow-up Study", no 7/4 of process) that was produced for the Defenders that compared outcomes between excisions of the trapezium and fusions of the trapezium and metacarpal bone. Table 2 at page 4 of the paper indicated that of the 8 patients who had been involved in heavy manual work, 6 had returned to their employment after tendon interposition arthroplasty. Mr Lindsay accepted that the cohort involved did not precisely correlate to Mr Lindsay's occupation but said it was the best comparator available.

[29] Under cross examination Mr Lindsay clarified that the type of procedure he would recommend for the pursuer would be trapeziectomy without tendon interposition. The majority of patients who have such surgery are those with degenerative arthritis, which is particularly common in women. Most candidates are closer to retirement than Mr Leggat. Mr Lindsay was surprised at some of the relatively poor outcomes after surgery recorded in the paper, especially in relation to thumb weakness and the high number of patients continuing to complain of pain. He commented that the study was a retrospective one that had started in 1981. Techniques had improved since then. Ultimately Mr Lindsay indicated he would not maintain that the findings in the study paper coincided with outcomes he saw in practice. He agreed that a study by Conolly and Lanzetta in 1993 (referred to in no 7/5 of process at page 6) had reported a relatively high percentage of complications after both types of procedure. However, he did not accept that a patient such as Mr Leggat would be likely to be left with a floppy thumb after trapeziectomy, although not many men of his age undergo such a procedure. He accepted that the pursuer would still be compromised after surgery in comparison with someone who had normal hand function but he was firmly of the view that his current function would be improved from its his current level.

[30] When he reported Mr Lindsay thought that the pursuer had no arthritis in the right hand but he said that on reflection he thought that Mr Leggat was also developing arthritis between the scaphoid and the trapezium in that hand. He would also suggest a trapeziectomy for that. He had not discussed the pelvic injury with the pursuer in any detail, but he accepted that Mr Leggat was a reliable historian and that if he said that he continues to suffer some pain in that area when working he would believe him. He had not incorporated that factor into his conclusion that Mr Leggat could continue to work.

Evidence of current earnings and future employment prospects

[31] Colin Barral, an accountant who prepares the accounts for Leggat Aviation Limited and assists the pursuer with his annual tax computation gave uncontroversial evidence that Mr Leggat's personal tax computation for the year to 5 April 2008 (no 6/25/16 of process) illustrated that he had net taxable income of £37,600, or £42,825 net income less the deductible personal allowances. For the tax year to 5 April 2009, he had net taxable income of £45,471, or £51,506 net income less the same deductible personal allowances. He confirmed that Mr Leggat was the only employee of the company, but that he tended to take dividends from the company as a shareholder rather than salary as an employee.

[32] On the issue of future employment prospects evidence was led in the pursuer's case from Andrew Crawford and Peter Davies. Mr Crawford is a 55 year old aircraft engineer, who worked for Monarch for 30 years. He and the pursuer were both shift leaders, albeit that Mr Crawford's particular work was as an air frame engineer. He recalled that after the accident Mr Leggat had at first taken a "desk job" in light of his injuries. He considered this to be less attractive work than the stimulation and satisfaction of fixing aircraft. Mr Crawford confirmed that when Mr Leggat was required thereafter to undertake his previous type of work someone required to assist him with the equipment.

[33] In relation to the work currently carried out by the pursuer as a contractor, Mr Crawford described the industry as "ruthless" and said that contractors like Mr Leggat are treated less favourably than permanent employees. While there had been a shortage of qualified personnel and thus ample work in the past for such contractors, the last two years had seen a decline in the aviation industry and it was becoming more difficult for contractors to get work. Permanent jobs with an airline, for example as a maintenance controller, now tended to be filled by those already employed by that airline.

[34] Peter Davies is a well known employment and disability expert who has worked in that area since 1983 and has been involved in expert witness work on a regular basis since about 1993. He prepared a report no 6/20 of process to which he spoke in evidence. He explained that people with disabilities generally tend to drop out of the labour market earlier than those who are not disabled. He had seen the opinion of Mr Maclean and had approached the issue of Mr Leggat's future employment prospects on the basis that he was not going to be able to carry out his current work for much longer, certainly for no more than five years. He had considered what other types of work might be open to the pursuer. Were he to change from being a technician to being an engineer he would require to retrain over a three year period and his future earnings could not easily be predicted. While securing employment as an aircraft maintenance controller was not something Mr Leggat was keen to do, this was an option that would require little or no retraining, but the salary would be lower, perhaps about £22,000 - £22,400 net. Mr Davies had seen such jobs advertised as carrying salaries " ...from £19,000". Under cross-examination Mr Davies indicated that there did appear to be work available in aircraft maintenance, although he had no reason to dispute Mr Crawford's evidence that permanent jobs may be few and far between.

Assessment of Damages

[35] A number of the smaller heads of this damages claim were agreed in a Joint Minute (No 21 of Process) and I narrate these below. The issues of solatium and the level of award for loss of employability or future wage loss remained contentious.

Solatium

[36] There was no dispute that the pursuer had suffered polytraumatic injuries in the accident and that some of his injuries had been life threatening. He had required massive blood transfusions and his open book pelvic fracture and devastating hand injuries had required periods of over three months in hospital for surgery, post operative treatment and rehabilitation. Both medical experts agreed that given the gravity of the injuries sustained they would not have expected Mr Leggat to return to his previous employment. That he has done so is illustrative of the very strong work ethic and stoical attitude that all those coming into contact with the pursuer noted.

[37] I found Mr Leggat impressive as a witness and accept his account of how his ongoing disabilities affect his life currently without hesitation. While I will address the conflicting medical evidence in relation to the likelihood of him requiring hand surgery and the prospects of success of that in looking at future wage loss, it is appropriate at this stage to record that Mr Leggat continues to suffer pain and disability in function in both hands that makes his working life difficult. While he made little of his pelvic pain, it is clear that he tended to underplay the extent of his suffering and there is no doubt that his pelvis causes him regular ongoing discomfort. The pursuer is a highly skilled worker who was and is committed to his chosen vocation. He dislikes office work and a change to that from his current duties as a result of his disabilities is likely to be a disappointment to him.

[38] Mr Macauley invited me to award £60,000 by way of solatium, with interest at 4% on two thirds of that as attributable to the past. Mr Thomson suggested a sum of £35,000 with interest at 4% on one half of that. Both referred me to the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injuries Cases (Ninth edition). Reference was also made to a number of authorities, including Stanyer v Marks (Kemp & Kemp, H1-008) and Towers v Jack 2004 G.W.D. 459.

[39] There is no doubt that the hand injuries sustained by the pursuer were severe and for that the guidelines suggest a range between £18,500 and £39,500. So far as the pelvis is concerned, there was some discussion as to whether the pursuer's injury fell within the moderate bracket, where the range indicated is between £17,000 - £25,000, or at the lower end of the severe category, where it ranges from £25,000 to £33,500. Mr Thomson suggested that the pelvic injury could even be regarded as in the category of "lesser injuries", where awards in the region of £2,500 to £8,000 are suggested.

[40] In a case like this, where the pursuer has sustained multiple injuries a broad view requires to be taken, rather than any attempt to achieve a total of individual awards for each injury. This was a horrific accident with long term consequences for Mr Leggat. His commendable stoicism and determination ought not, in my view to result in a lower award than reflects his extensive pain and suffering. I consider an appropriate award of solatium to be £55,000. I shall attribute two thirds of the award to the past and add interest at 4 % to that portion.

Past Loss of Earnings, Recoupable sick pay, services and miscellaneous claims

[41] These heads of claim were agreed by way of Joint Minute and I shall simply narrate them.

[42] It was agreed that past loss of earnings amounted to £6,758.22, with interest at 8% per annum from 2 November 2005. In addition, Mr Leggat required to repay to Monarch the sum of £11,348.04 received in sick pay.

[43] So far as services are concerned, it was not disputed that these were provided by Mrs Leggat. A sum of £5,000 was agreed for past services, with interest at 4% from 30 May 2005. A sum of £1,000 was agreed for future services. The parties were agreed that in addition Mr Leggat should receive the sum of £2,000, inclusive of interest, in respect of other miscellaneous claims, including, inter alia, the loss of enjoyment of a holiday and the loss of the pursuer's motorcycle helmet and leathers.

Loss of employability/ Future Wage Loss

[44] This was the most contentious area between the parties. Mr Macaulay submitted that the correct approach to this area would be to find that Mr Leggat will no longer be able to work in his current employment after the period suggested by Mr Maclean (five years) and that he will thereafter have to seek alternative employment. He invited me to prefer the conclusions of Mr Maclean over those of Mr Lindsay. Mr Maclean had made himself more fully aware of the nature and demands of Mr Leggat's employment and had correctly predicted that he would develop arthritis in both hands. Mr Lindsay had wrongly initially wrongly assessed that only the left had showed signs of arthritis, but accepted "on reflection" that it was present in both. Mr Lindsay had clearly been surprised when shown the pursuer's work tools in evidence. He had accepted that there would come a time when an operation would be necessary. So far as the difference between the experts on the type of surgical procedure that would be carried was concerned, Mr Macaulay submitted that the study no 7/5 of process did not assist the defenders' case that trapeziectomy would give a better result. The paper simply highlighted the problems with the procedures under discussion and it did not address the problem of someone like the pursuer who had post traumatic arthritis in both hands. Mr Maclean had more knowledge of post traumatic arthritis, whereas Mr Lindsay's experience was in operating on those with general degenerative arthritis.

[45] It was further submitted for the pursuer that if it was accepted that the pursuer will succumb to his injuries within the timescale estimated by Mr Maclean, then the approach to future wage loss should be on a traditional multiplier/ multiplicand basis. On the basis of Mr Barral's evidence, current earnings are £43,899. From that one would require to deduct a figure for annual residual earning capacity as a maintenance controller of £22,388, leaving an earnings differential o f £21,511.63. The appropriate multiplier would be 6.01 (7.81 at age 56, adjusted for contingencies other than mortality) resulting in a figure of £129,284.89. To that one should add a year's earnings (£43,899) to reflect the fact that the pursuer will be out of work for 3-6 months each time he has hand surgery. As it seemed likely that that surgery would take place after the end of the five year period during which the pursuer will continue to work, the age of 56 was used in fixing the multiplier. This approach would result in a total of £173,183.89, which would require to be discounted to allow for receipt now (Table 27, 0.8623) resulting in a total award under this head of £ 149,366.46. As a fall back position, if all that was established was that as a result of his injuries the pursuer is at a considerable disadvantage in a difficult labour market, a lump sum equivalent to two years net salary would be appropriate, but again a year's salary should be added to reflect the risk of the pursuer being out of work for up to a year for surgery to both hands. The total lump sum due on this alternative basis would be £131,697. Reference was made to McGhee v Diageo plc [2008] CSOH 74, where a lump sum based on a number of year's earnings was awarded. Mr Macaulay suggested that case was easily distinguishable and that a multiplier and multiplicand approach should be adopted.

[46] Mr Thomson submitted that what should be considered is the risk of surgery being required, the risk of there being complications of that surgery and the risk of being unemployed generally. He emphasised that the pursuer has a good and unbroken work record, with an impressively strong work ethic both prior to and since the accident. It was accordingly likely that he would survive in a tight market. He should not be rewarded for having minimised his loss.

[47] As between the two experts, Mr Thomson invited me to prefer the evidence of Mr Lindsay where his views differed from those of Mr Maclean. He submitted that Mr Lindsay had greater expertise in hand surgery. While he acknowledged that both experts had agreed that at least the pursuer's left hand would require surgery, he suggested that Mr Lindsay was correct to conclude that a trapeziectomy would result in the recovery of function and allow Mr Leggat to work until retirement age. Mr Thomson contended that Mr Lindsay's view was reinforced by the study reported at no 7/5 of process. The pursuer had excellent tissue and was likely to have a better outcome from surgery than those with rheumatoid arthritis. The thrust of Mr Lindsay's evidence was that pain and function co-exist, such that if pain is eliminated function improves. Assuming a good outcome from surgery, Mr Leggat will be able to return to his present employment.

[48] Mr Thomson accepted that the pursuer is disadvantaged in the labour market as a result of the accident, but submitted that a lump sum award was appropriate. The pre-requisites for such an award are (i) that there must be a substantial risk that at some point in the claimant's working life he will find himself on the labour market for some reason and (ii) that his disability places him at a disadvantage by comparison with an able bodied contemporary. Reference was made in this context to Smith v Manchester
[1974] 17 K.I.R. 1 and McGhee v Diageo (cited supra). Mr Thomson submitted that an award under this head of about £30,000 - £35,000 would be appropriate.

[49] Both of the medical experts who gave evidence in this case were highly qualified and experienced orthopaedic surgeons who reported in a helpful and responsible manner. On balance, however, where their views differed, I have decided that the opinions of Mr Maclean about this particular pursuer are to be preferred. My reasons for that are as follows. First, Mr Maclean took a more comprehensive view of Mr Leggat's injuries and their ongoing impact for his future employment, where Mr Lindsay focused almost exclusively on his hands. Secondly and perhaps most importantly, Mr Lindsay had clearly not appreciated the very fine nature of the tools used by Mr Leggat until they were shown to him during the proof and he immediately accepted that he had not appreciated that when the pursuer spoke of working with "tools" he was referring to such fine instruments that require an extremely high level of manual dexterity for their use. I am unable to accept his conclusion about Mr Leggat's ability to continue to work in light of his lack of a complete understanding of what that work involves. Thirdly, Mr Lindsay required to change his view about whether or not the pursuer now has post traumatic arthritis in his right hand. Finally, the medical evidence as a whole was to the effect that whether one attempted fusion surgery (arthrodesis) or a trapeziectomy there was a real risk of a poor outcome and that even a satisfactory outcome from either procedure was unlikely to restore function to the extent required for Mr Leggat's employment. I agree with Mr Macaulay's submission that the literature (no 7/5 of process) does not support the views expressed by Mr Lindsay. For all these reasons I accept Mr Maclean's opinion that this pursuer will be unable to continue in his current employment for more than five years, that he will require surgery to his left hand thereafter and that there is a material risk that he will require such surgery to his right hand. It is likely that arthrodesis will be attempted. This will alleviate pain but will not restore function to anything approaching its pre-accident level. After surgery it seems likely that Mr Leggat will obtain employment as a maintenance controller or similar. On that basis I accept the future wage loss calculation suggested by Mr Macaulay with one exception. I consider that it would be excessive to allow a full year's loss for the hand surgery. While I have found that surgery will be required to the left hand, the risk of surgery to the right hand, while material, is at present still less than 50%. I do accept Mr Thomson's suggestion to the extent that Mr Leggat's determination and excellent work record make it likely that he will minimise his recuperation period and find work, albeit in a less well paid position, within a short period. Taking a broad view, I will award the sum of £15,000 to account for an absence from work related to surgical treatment.. Thereafter, I will award future wage loss of £129,285 on the first approach suggested by Mr Macaulay, using the multiplier and multiplicand approach. I am of the view that such an approach is justified in this case on the basis of the medical opinion that I have accepted, together with the unchallenged evidence of the rates of pay for a maintenance controller. Thus the total future wage loss amounts to £144,285, which must be reduced to allow for receipt now (Ogden Tables, Table 27, 0.8623), resulting in an award of £124,416.

Summary of Damages

(i) Solatium

[50] £55,000, with interest at 4% on two thirds of that, resulting in an award inclusive of interest to date of £61,819..

(ii) Past Loss of Earnings

[51] £6,758.22, with interest at 8% per annum from 2 November 2005 to date, resulting in an award inclusive of interest of £9,026..

(iii) Recoupable sick pay

[52] £11,348

(iv) Services

[53] £5,000 for past services, with interest at 4% per annum, resulting in an award inclusive of interest to date of £5,930..

[54] £1,000 for future services

(v) Loss of Enjoyment of holiday and other miscellaneous expenses

[55] £2,000, inclusive of interest.

(vi) Future Wage Loss

[56] £124,416.

Total Damages

[57] The total award accordingly amounts to £215,539, inclusive of interest to date.

[58] I shall pronounce an interlocutor accordingly. I shall reserve meantime all questions of expenses.