Scottish Court of Session Decisions

Pursuer: Hofford QC; Thompsons

First Defenders: Sheldon; McClure Naismith

Second Defenders: Sheldon; Simpson & Marwick, WS

4 March 2011

Introduction

[1] The pursuer was employed as a power loader in the mining industry between about 1976 and 2002, when he was made redundant. He developed Hand Arm Vibration Syndrome ("HAVS") and has been partially compensated for this by the defenders. In particular, he has received payments from the defenders for solatium, disadvantage on the labour market and necessary services. The pursuer accepts that these aspects of his claim have been settled. I heard a proof at which evidence was led in relation to the only remaining issue between the parties. This issue is, in short, whether the pursuer has a valid claim for loss of earnings during the period from 12 August 2003 to 1 May 2007 and, if so, the amount of his loss in that respect. On the latter date, the pursuer was elected as a councillor for Fife Council and he accepts that he has no claim for loss of earnings extending beyond that date.

[2] At the proof, the pursuer gave evidence on his own behalf. He led also the evidence of Mr. Duncan Porterfield. The only witness led on behalf of the defenders was Mr. Frederick Martin, whose evidence was taken on Commission before the proof.

The evidence

[3] The pursuer explained that, as well as being an elected councillor, he holds a paid position as a trustee of the Mineworkers' Pension Scheme. His claim for loss of earnings arose in the following circumstances. In around January 2003, the pursuer was in the habit of attending a working men's club in Tullibody on Monday evenings to see a friend of his, Mr. Thomas Coulter. Mr. Coulter ran a club from the premises for retired miners. The pursuer was at that time in the process of training to qualify as a representative at Medical Appeal Tribunals for former miners. Mr. Coulter was helping the pursuer with this. On a Monday evening in about January 2003, the pursuer was at the club when he met Mr. Martin, who had also previously worked as a miner. Mr. Martin, whom the pursuer knew as a former colleague, ran a small business, cleaning wheelie bins. He asked the pursuer, who was unemployed at the time, if he was looking for work. The pursuer said that he was. According to the pursuer, Mr. Martin then proposed that the pursuer should come to work for him in the wheelie bin cleaning business at a wage of £220 per week. The pursuer was interested in this proposal and the two men agreed to meet again to have further discussions about the details. They arranged that the pursuer would go to Mr. Martin's home in Tullibody on the Thursday evening of that week.

[4] On the Thursday evening, the pursuer again drove to Tullibody from his home in Oakley. He was accompanied on the journey by his friend, Mr. Duncan Porterfield, another former miner. The pursuer dropped off Mr. Porterfield at the working men's club and went on to Mr. Martin's home alone. According to the pursuer's evidence, a discussion took place between him and Mr. Martin in the living room of the latter's home. They talked about what the job would entail. The pursuer testified that Mr. Martin again mentioned the figure of £220. This, according to the pursuer, was to be the gross wage paid to him each week. Mr. Martin explained also to the pursuer that he was hopeful that the pursuer would be able to expand his business and that if he succeeded in doing so, his wages might increase. Then, Mr. Martin took the pursuer outside and showed him the vehicle (a blue van), which he used for his business. The pursuer saw that the van contained a compressor and that this was used to provide power for the power hoses employed in cleaning the wheelie bins. On seeing that air-powered equipment of this type was involved, the pursuer became concerned as to whether he would be able to do the job because of his HAVS. In particular, he was concerned as to whether it would be safe for him to use the power hoses; he thought that he might injure himself or someone else. When he mentioned these concerns to Mr. Martin, he too became wary about taking on the pursuer. He mentioned, according to the pursuer, that there might be insurance problems. The outcome of the discussions on the Thursday evening accordingly was that Mr. Martin felt unable to offer the pursuer employment in his business because of the pursuer's HAVS. The pursuer then left Mr. Martin's house and returned to the working men's club, where he collected Mr. Porterfield and they drove back to Oakley. The pursuer's position in evidence was that he would have accepted the job with Mr. Martin had he been physically able to do it, but his HAVS disabled him from doing so.

[5] As matters turned out, the pursuer managed to obtain part-time employment with Messrs. Thomsons, Solicitors in early July 2003. This was for 16 hours per week; the hours were to be flexible. The job entailed the pursuer going to miners' clubs to explain the various compensation schemes, attending bowling clubs and working men's clubs to put up advertisements for Thomsons, visiting clients and also some office work on Saturday mornings. Most of the work was in the evenings and at weekends. The pursuer was pressed in cross-examination as to whether it would have been possible for him to have done both the job for Mr. Martin as well as the Thomsons' job. He said that this would not have presented him with undue difficulties. The working hours of both jobs were flexible and the pursuer was accustomed to working in the evenings and at weekends. I had no difficulty in accepting this aspect of the pursuer's evidence. He is obviously an energetic and capable man and I find that he would have been able to hold down the two jobs without undue difficulty. Indeed, when it came to the closing submissions, I did not understand counsel for the defenders to invite me to hold otherwise.

[6] Returning to the pursuer's evidence, he was cross-examined on the basis that the offer of employment by Mr. Martin was conditional on the business expanding. The point was put to the pursuer in a number of ways. It was suggested firstly that the business did not have the capacity to take him on at all unless it expanded and since, according to the defenders, Mr. Martin's evidence at the Commission was that the business did not expand, the pursuer would not ever have been employed. Then it was put to the pursuer that the basis of any offer of employment was that he himself would have had to expand the business and that any earnings which he might receive would be entirely dependent on his success in so doing. The argument again was that there was no evidence that the business was capable of expansion and that it did not, in fact, expand. Therefore, the defenders contended, the pursuer could not show that he would ever have earned anything from working for Mr. Martin. The pursuer accepted, in response to these points, that Mr. Martin had told him that he would have to expand the business, but he maintained that he had been given a clear and unambiguous offer of employment at the rate of £220 per week. He did not know anything about what had happened to Mr. Martin's business after his job offer fell through.

[7] Mr. Duncan Porterfield, a school janitor, confirmed in evidence that he had accompanied the pursuer to Tullibody on the Thursday evening on which the pursuer had (he understood) gone to Mr. Martin's home. The pursuer told him that Mr. Martin had offered him a job on the Monday of that week, cleaning wheelie bins. According to Mr. Porterfield, the pursuer said to him that Mr. Martin was going to pay him £200 to £220 per week. The pursuer dropped off Mr. Porterfield at the working men's club. Some time later he came back to pick him up. The pursuer informed him that Mr. Martin had had to withdraw the job offer because of the pursuer's HAVS. The pursuer seemed disappointed by this. Mr. Porterfield was not cross-examined.

[8] As I have already explained, the only witness led for the defenders was Mr. Frederick Martin, whose evidence was taken on Commission some months before the proof. I refer to the Report of the Commission, which is number 24 of process, and to a paper apart, recording certain evidence to which exception was taken on behalf of the pursuer in re-examination of the witness. At the proof, Senior Counsel for the pursuer made it clear that he was not insisting in the objection he took at the Commission to the evidence recorded in the paper apart. Accordingly, all the evidence given by Mr. Martin is before me.

[9] In his evidence, Mr. Martin broadly confirmed the pursuer's account of the discussions which took place between them about the offer of employment. This had first come up when he and the pursuer were having a social drink with Mr. Coulter. Later, the pursuer came to his house and it was then that Mr. Martin found out about the pursuer's HAVS. According to Mr. Martin, he told the pursuer that he wouldn't be much use because he would be working with vibrating machinery, namely vibrating power washers. That was the reason he was unable to offer the pursuer a position.

[10] Mr. Martin explained that he had been in partnership with Mr. David Murphy, but the partnership had ended and Mr. Martin continued thereafter to trade under his own name. In his evidence, Mr. Martin was, at first, somewhat vague as to when the partnership had come to an end; he appears to have had difficulty in pinning matters down to particular dates. In examination-in-chief, he said that the partnership had ended in about 2000, but he could not be more precise than that. He said that they had started the business in about 1995 or 1996 and that he was sure he had been in partnership for about five or six years. In re-examination, however, Mr. Martin was rather more specific. He said that Mr. Murphy had left the business shortly after he discussed the job offer with the pursuer, maybe four to six months later, but he was only guessing. That would mean that the partnership subsisted until some time in the summer of 2003. Mr. Martin's evidence was that in order to take on the pursuer, the business would have had to expand by gaining more customers. He said that it would have been up to the pursuer to expand the business. But, as he explained in re-examination, expansion required the purchase of a second vehicle and equipment for it. Mr. Martin was asked in re-examination how this would have been financed. He said that he and Mr. Murphy would have been able to provide the requisite funding between them. He had part of his redundancy money left and he was quite sure that Mr. Murphy had money. A "decent van" would have cost £1,500 to £2,000 and Mr. Martin had a couple of thousand left from his redundancy payment. If Mr. Murphy put the same in, they would have been able to buy the equipment as well. The pursuer would then have been put in charge of the new van and it would have been up to him to find new customers. From all this, it seems to me to be reasonable to conclude that at the time of the discussions between Mr. Martin and the pursuer in January 2003, the intention was for the business to expand and that there was funding available from the two partners to allow it to do so. As matters turned out, the business did not expand because, as Mr. Martin put it, the partnership "bust up" and thereafter he kept the business going on his own.

[11] With regard to the amount of earnings which the pursuer could have expected to make from involvement in the business, Mr. Martin said that this would have depended on how successful the pursuer was in finding new customers. At the time he himself was making about £115 to £120 per week (he later qualified this by saying that this was the figure he was taking home in the mid 1990s). He was referred to a letter he had written to the pursuer's solicitor on 11 December 2004 in which he said that the pursuer's wages would have been £220 per week if his application had been successful. Mr. Martin said that this figure was an estimate of or an assumption as to what the pursuer could have been making at that time before tax. He acknowledged, however, that the earnings would have depended on the number of customers the pursuer was able to obtain and that the level of his income might accordingly fluctuate. In re-examination, it was pointed out to Mr. Martin that if he paid the pursuer £220 per week for a year, that would have amounted to more than the whole income of the business for the year to 5 April 2003, according to the accounts (7/14 of process). In response, Mr. Martin again explained that the amount of the pursuer's earnings would have depended on the level of new business he was able to generate. Later, he encapsulated his position by saying that what he offered the pursuer was an opportunity to earn and that if he worked at it correctly there was an opportunity to earn the kind of money that he and his partner were earning.

Conclusions from the evidence

[12] On the basis of the evidence, I consider that the following factual findings fall to be made. Firstly, the pursuer was offered the opportunity to work in the wheelie bin cleaning business in about January 2003. Secondly, the pursuer was unable to take up the offer because of his HAVS. Thirdly, had the pursuer taken up the offer, the partnership would have gone ahead with its plans to purchase a new van and the requisite equipment; there were funds available to enable this to happen; the pursuer would then have been put in charge of the new van. Fourthly, the pursuer's income would have depended entirely on the number of new customers he could obtain from operating the new van. It will be evident from this last finding that I have been unable to accept that the pursuer would have been paid at the rate of £220 per week. Whilst I accept that this figure was mentioned to the pursuer by Mr. Martin, in my view it can only have been a rough indication of potential earnings as opposed to a guaranteed wage. That was Mr. Martin's clear explanation in evidence and he must, I think, be taken to be in the best position to express a view on the matter; after all, he was one of the principals of the business and was familiar with its operations and finances. Accordingly, I find that what the pursuer has lost is the opportunity to work in and to expand the business. He has also lost the opportunity to earn an income in the form of the wages that would have been paid to him in the event that the expansion was successful.

[13] I should mention that Mr. Martin explained that after the partnership came to an end, he continued to operate as sole trader until he retired in about February 2009. He said in evidence that there was no reason (from his perspective) why the pursuer should not still have been with him at the date of his retirement. I see no reason not to accept this evidence. Indeed, counsel for the defenders did not submit that there was any reason for rejecting it. For the reasons mentioned in the last paragraph, it seems to me that Mr. Martin was well-qualified to express a view on the matter, having regard to his experience and knowledge of the business. As I have already explained, however, the pursuer's claim for lost earnings does not extend beyond 1 May 2007, at which time he took up full-time office as an elected councillor.

The parties' competing positions

[14] It was argued on behalf of the defenders that, since there was no evidence that the business ever expanded, the pursuer's claim must fail. I reject that argument. In my opinion, the pursuer has proved that he was offered the opportunity to work for and to expand the business. He has proved also that the necessary capital was available from the partners to provide the means for him to expand the business by developing its customer base. If he succeeded, he would have been rewarded by the payment of wages; no doubt there would have had to be some return paid to the partners and, in due course, to Mr. Martin alone as well. But the exact amount of the wages would depend on the level of new business which the pursuer succeeded in generating. As matters turned out, the business did not, in fact, ever expand. This was because the partnership came to an end after the pursuer had had to turn down the job. Mr. Martin then decided to continue running the business on his own. As I have mentioned already, he testified that the pursuer would have been able to continue working for him after the partnership ended. It seems to me that, in these circumstances, the pursuer's claim falls to be assessed on the footing that, but for his HAVS he would have taken up the chance to expand the business. The claim is not, in my view, defeated by the fact that the business did not, as matters eventuated, ever expand. That was a turn of events which occurred after the pursuer had declined the opportunity of employment.

[15] I reject also an argument advanced on behalf of the defenders to the effect that the discussions between the pursuer and Mr. Martin were only of a preliminary nature and that there was no agreement between them as to the basis on which the pursuer was being offered the opportunity of employment. In my view, the facts do not support either aspect of this analysis. I consider that the evidence clearly showed that Mr. Martin was agreeable to engaging the pursuer and that the pursuer was keen to find work. The pursuer is obviously an industrious and determined man and I, therefore, have no difficulty in holding that he would have seized the chance to expand the business in the way then envisaged by its partners. On the balance of probabilities, I have no difficulty in holding that the pursuer would have taken up the offer on the terms explained in Mr. Martin's evidence. The pursuer, in my judgment, would have seen the obvious commercial sense in his level of earnings being dependent on the success of the expansion project.

[16] The pursuer's principal argument was to the effect that damages should be calculated on the basis that he would have earned £220 per week from about mid-August 2003 until 1 May 2007. For the reasons I have already given, I reject this approach.

[17] The pursuer's secondary argument was that the court should take a broad approach to the assessment of loss of earnings in the whole circumstances. The evidence clearly showed, it was submitted, that the pursuer would have been likely to take up the job on the basis explained by Mr. Martin. The pursuer would probably have made a success of it. There was, at least, a reasonable chance that he would have done so. It would accordingly be reasonable to award the pursuer a proportion of what the loss would have been if based on a wage of £220 per week; this should be assessed on a broad basis. I shall give my view on this argument in the final section of this Opinion.

[18] Finally, the defenders argued that the type of broad approach reflected in the pursuer's secondary argument was not open to the court in the present case because, according to paragraph 2 of the Joint Minute, the pursuer's claim for disadvantage on the labour market had been fully and finally settled. In my opinion, this line of argument is untenable. The provisions of the Joint Minute must be read as a whole. Paragraph 3 makes it clear that the only unresolved issue between the parties is whether there is a valid claim for wage loss during the period from 12 August 2003 to 1 May 2007 and, if so, the value of that claim. In my view, this clearly leaves it open to the court to value that particular claim on any basis which the court is satisfied is appropriate, having regard to the evidence and the court's conclusions on it. The clear import of the Joint Minute is that the court is to adjudicate on and reach a determination in respect of the wage loss claim referred to in paragraph 3 of the Joint Minute. I cannot see that it would be reasonable to read the Joint Minute as allowing the court only to value that wage loss claim on the basis of the pursuer's primary position and on no other basis. The court's hands are not, I consider, tied in that way.

Conclusion

[19] My conclusion, in short, is that the pursuer has proved that because of his HAVS he lost the job opportunity offered to him by Mr. Martin. I am satisfied that the pursuer would have taken up that offer on the terms explained in Mr. Martin's evidence. As to how much he would have been likely to earn from it, Mr. Martin referred to the fact that he himself was making about £115 to £120 per week as a "take home" figure; this was over the period between about the 1990s and 2003. That equates to about £6,000 per year. The period of the pursuer's loss is 44.5 months. So the loss would be £22,500 on that basis. I consider, however, that to award the pursuer that amount would be going too far because such an approach takes insufficient account of the risks and uncertainties inherent in the circumstances. While I consider that the pursuer would have devoted his best efforts to the expansion project and would probably have made a success of it, there is little in the way of hard evidence to show how much he would have earned from it. He might have earned less than Mr. Martin, at least to begin with. As Mr. Martin acknowledged, it is likely that the pursuer's earnings would have fluctuated. In my view, the right course for me to take, in the whole circumstances, is to adopt the type of broad approach advocated by senior counsel for the pursuer. I shall, therefore, award the pursuer approximately one third of the figure of £22,500 viz £7,500 in round terms, to cover the sole head of claim still in contention. I do not agree with the defenders' argument that to take such an approach would be unduly speculative. In my view, the court often has to take a fairly broad approach to quantifying damages, particularly in circumstances involving claims based on a lost employment opportunity. As is observed in McGregor on Damages (18^th edition, paragraph 8-072)), there seems no reason why a claimant should be debarred from all recovery on the grounds of uncertainty once it is recognised that such damages are not, in principle, too remote. So, in Mulvaine v Joseph (1968) 112 S.J. 927, a professional golfer who injured his hand was awarded damages "for loss of opportunity of competing in tournaments, the ensuing loss of experience and prestige which might have resulted in him becoming a tournament professional in America and loss of a chance of winning prize money." After referring to that case, McGregor then observes that, in quantifying loss in personal injury cases, the courts "have now gone much further down the loss of a chance road" (ibid).

[20] Interest will run at 4 per cent per annum on the figure of £7,500 for the period of the loss (12 August 2003 to 1 May 2007) and thereafter at 8 per cent per annum.

[21] I should record finally that, at the stage of closing submissions, I was referred to Moeliker v Reyrolle & Co Ltd [1977] 1 WLR 132; Obagi v Stanborough (Developments) Ltd and Others (Times Law Reports, 15 December 1993) and Kemp & Kemp paragraphs 10-033 to 10-039. I did not find any of these to be of assistance in the particular circumstances of the present case.

[22] I shall reserve all questions of expenses.