Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 128
PD1180/11	OPINION OF LORD PENTLAND in the cause RAYMOND WYLIE Pursuer; against OMNIASIG SA Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Thornley, advocate; Digby Brown LLP

Defenders: Thomson, advocate; Andersons Solicitors LLP

7 August 2012

Introduction

[1] In this action the pursuer, who is 53 years of age, sues for damages from the defenders for injuries he suffered in a car crash in Romania in June 2008. The defenders, Omniasig SA, are an insurance company incorporated under Romanian law. They have their principal place of business in Bucharest. At the time of the accident the defenders were the motor vehicle insurers of SC Stingo Somet SA, a Romanian company. In particular, the defenders were the insurers of the car in which the pursuer was travelling at the time of the accident. SC Stingo Somet SA are the owners and operators of a factory in the Romanian town of Buzau, which lies about 110 kilometres north-east of Bucharest. The pursuer had been visiting the factory before the accident.

[2] At the mandatory pre-trial meeting between the parties' lawyers on 18 June 2012, the defenders formally admitted liability for the accident. This is recorded in the minute of the pre-trial meeting (form 43.10).

[3] At the outset of the proof, counsel for the defenders, Mr Thomson, confirmed to me that liability for the accident was accepted by the defenders. That left for determination at the hearing only the amount of damages which should be awarded to the pursuer.

[4] I was informed that the pursuer intended, if necessary, to enforce the judgment of this court in Romania under the provisions of Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation). I understand that the judgement of this court is directly enforceable in Romania on application to the designated court in that member state in terms of Article 39 of the Regulation. Annex II of the Regulation defines the court in Romania as the "Tribunal".

The evidence given at the proof

[5] In addition to his own evidence, the pursuer led evidence from his wife, Mrs Bellann Wylie, from a Romanian lawyer Mr Theodor Pârvu, from a consultant orthopaedic surgeon, Mr John Gibson and from his general medical practitioner, Dr Robert Lamberton. Almost all of the evidence led for the pursuer was unchallenged. The defenders themselves led no evidence. I shall deal with Mr Pârvu's evidence later.

[6] The pursuer gave evidence about the circumstances of the accident. He explained that at the time he was employed as a design engineering manager by a company known as Divex Limited ("Divex") based in Aberdeen. Divex manufactured equipment for subsea diving operations. They needed to find a new supplier of high pressure diving cylinders. The Romanian manufacturing company, SC Stingo Somet SA, was identified as a possible candidate. On 16 June 2008 the pursuer, accompanied by a colleague from Divex, Mr Kevin Smith, travelled to Romania to carry out a technical audit and inspection of SC Stingo Somet SA's factory in Buzau. The manager of the factory was a Romanian citizen, Mr Sorin Castravete. Mr Castravete collected the pursuer and Mr Smith from the airport on their arrival in Bucharest and drove them to Buzau. The pursuer said that he and his colleague noted during the journey that Mr Castravete was a quick driver. The inspection of the factory took place throughout the day on 17 June 2008.

[7] The next day (18 June 2008) between about 12 noon and 1pm Mr Castravete was driving the pursuer and Mr Smith on their return journey to Bucharest Airport from Buzau. The pursuer was the front seat passenger and Mr Smith was sitting in the back. The pursuer was wearing his seatbelt. The car was a Volvo S40 "Summum" saloon owned by SC Stingo Somet SA. In his evidence the pursuer explained that he was dozing and had his eyes closed during the journey. Occasionally he was aware of Mr Castravete applying the brake pedal as he prepared for an overtaking manoeuvre on the single carriageway road. Suddenly the pursuer felt the car braking more severely. He opened his eyes and saw the two rear doors of a transit type van in front of the car looming towards them at an alarming rate. At this point, according to the pursuer, Mr Castravete had three options: either to drive off the road onto an embankment or to drive off the other side of the road into a swamp or to crash into the rear of the van. The pursuer discovered later from his colleague that Mr Castravete had been attempting to overtake the van on a right hand bend and had had to pull in suddenly due to oncoming traffic. Mr Castravete then drove straight into the rear of the van. The pursuer thought that Mr Castravete's speed at the time of the accident would have been about 140kms per hour. As the pursuer put it, Mr Castravete seemed to sit at that speed all the time.

[8] The next thing the pursuer knew was that he felt himself being thrown back from the airbag, which had inflated. He had been restrained by his seatbelt, but had been jolted violently forwards on impact. He was coughing violently, having ingested the dust filling the airbag. He felt that his back was in "absolute agony" and his immediate thought was that his spine had been severed. He said that he had never felt anything like it before. He was aware of having experienced a very severe impact. At first he thought that he had no feeling left below the waist and he remembers thinking that he would never work again. Dust from the airbag was swirling around the interior of the car and the pursuer had difficulty in getting out of the vehicle. He was concerned about the car being struck by other vehicles.

[9] After some time, Mr Castravete and Mr Smith managed to extricate the pursuer from the car and helped him onto the verge, where he sat propped up against a tree. The pursuer described being in intense pain at this time, with the pain being centred at his lower back just above the waistline. Gradually he became conscious of his heart rate decreasing and he began to have feeling in his legs again.

[10] The driver of the van, which had been badly damaged in the accident, insisted on taking Mr Castravete to the local police station to report the accident. The factory sent another car for the pursuer and Mr Smith. Although the pursuer was in considerable pain, he decided that the best course, rather than going to a local hospital, was to press on with his return journey to Aberdeen. As planned, he and Mr Smith travelled by air to Schiphol Airport in Amsterdam and then on to Aberdeen. During both flights the pursuer was unable to sit comfortably and had to perch himself in his seat using the armrests as supports. He remembers also having some muscle pain in his left side; he thought this might have been due to the pressure of the seatbelt when he twisted in the accident. The pursuer arrived home in Aberdeen late at night and decided to wait until the following morning before seeking medical advice.

[11] The next morning the pursuer went straight away to his local medical practice where he was seen by Dr Bell and referred to the Accident and Emergency Department at Aberdeen Royal Infirmary. X-rays revealed an anterior wedge fracture of L1 with around 20 per cent loss of the anterior vertebral body height. The posterior vertebral body appeared to be intact, however. There was no evidence of any pedicle widening. The injury was considered to be a stable one and the pursuer was advised to remain in bed for 6 weeks so that his spine was kept straight and the fracture could heal. The pursuer followed this advice and was eventually discharged from hospital care on 7 August 2008. Whilst he was confined to bed, his wife had to look after him, for example by preparing meals for him to have while she was out at work. The pursuer thought that his wife might have had to spend an extra hour per day looking after him during this initial period.

[12] By the time the pursuer was discharged from hospital care, x-rays showed no further collapse of the L1 fracture, which was noted to be stable in nature. The doctor examining the pursuer recorded that the pain in his back was slowly improving and that there was no evidence of any neurological deficit below the fracture site. The pursuer was noted to be walking around and "perching" when sitting.

[13] Thereafter the pursuer's general medical practitioner referred him for nine sessions of physiotherapy treatment. This continued until April 2009 when it was noted by the physiotherapist that the pursuer had made a good recovery; the pursuer reported at that time that although his back did ache most days it was not a painful ache. The pursuer explained in evidence that he continues to do about 45 minutes of stretching exercises after getting out of bed each morning. This was confirmed by Mrs Wylie.

[14] The pursuer returned to work, initially on a part time basis, in early October 2008. He went back to work full-time in January 2009. He did not suffer any loss of earnings during his absence from work.

[15] The pursuer explained that he continues to experience some pain and discomfort in his lower back. When necessary, he takes 400mgs of Ibuprofen to alleviate this. The pursuer accepted as accurate the following description of his condition contained in Mr Gibson's medical report of 23August 2011:

"(The pursuer) told me that he still experiences a constant ache in his lower back, for which he takes occasional analgesia. He has not suffered any weakness or numbness in either leg. In general, his symptoms do not disturb his sleep, but he does find that his back is extremely stiff on wakening. Overall, his condition now, he felt, was stable and his symptoms static in severity".

[16] The pursuer went on to explain that he now has to be careful when lifting or carrying. In addition to his back pain, he occasionally gets muscular pain in his left side. He is unable to dig in his garden. He cannot perform any task which involves working in a bent stance. He said that he cannot lean forward at all. If he does so, the muscles in his back immediately start to seize up. He is fine when standing erect, but if he has to inspect a piece of equipment he sometimes finds it difficult to bend down and lean underneath it as he would have done before the accident.

[17] Prior to the accident the pursuer had been particularly keen on home maintenance and improvement and had successfully carried out a great deal of work on his house and garden; this was despite the fact that he lost the lower part of his left leg in an accident in about 1975 and wears a prosthesis. The pursuer explained that he owned and used a range of power tools. With assistance from his wife, he had completely renovated the house and substantially improved their sizeable back garden. For example, the pursuer had lifted flooring and made improvements to the plumbing and heating systems. He had plastered walls and done all the tiling. In the back garden he had dug up a number of trees and put up new fences. He had built an arbour and installed a large bench in it.

[18] Since the accident the pursuer has felt that he cannot manage to do any significant DIY work. Nor has he been fit to work in the garden. He cannot even bend down to pull out weeds. Work that is required in the front garden will have to be done by contractors, whereas before the accident the pursuer would have been able to do all this himself. The pursuer referred to a quotation he had obtained from a local firm, ADR Gardens & Landscapes Limited (6/17 of process). This related to removing the trunk and roots of a cherry tree in the front garden and repairing a wall and the driveway. He has also had to engage contractors to complete some work in the garage.

[19] The pursuer said that since the accident his wife has to do almost all the housework, whereas they had previously shared this. As a rough estimate the pursuer thought that this would involve her in several extra hours of work per week.

[20] The pursuer explained that he and his wife had to cancel a holiday to Majorca and a short break in Castle Douglas due to his injuries.

[21] So far as his employment is concerned, the pursuer chose to leave Divex in about December 2010 at a time when a redundancy programme was underway. He explained that he had become concerned about his future with the company, which was experiencing certain difficulties. He had found a new job with Subsea Technologies Limited without difficulty or delay. He is an engineering manager; this post is at an equivalent level to the job he held with Divex. His current job is mainly sedentary and involves running an engineering department. He has a number of engineers working beneath him. The pursuer does not have any significant problems at work because of his back, although sometimes it can be difficult to inspect a particular component. If he were to lose his present employment, the pursuer would look for a similar type of engineering management job. I did not understand the pursuer to be saying that he expected his prospects of finding other employment to be impaired because of his injuries.

[22] In her evidence Mrs Wylie broadly confirmed her husband's account of the immediate and continuing effects of his injuries. She had looked after him during the time he was confined to bed. She agreed that he was no longer able to do any lifting or bending, with the result that she now has to carry the shopping and his photography equipment; she explained that the pursuer is a keen photographer. She thought that during his initial period in bed she might have spent around 7 or 8 hours extra per week looking after him.

[23] Since the accident Mrs Wylie has had to do almost all the housework, whereas the pursuer had previously helped with this. Mrs Wylie also confirmed that the pursuer had done a great deal of DIY work in the house and garden before the accident. The continuing problems with his back now made this impossible for him. Overall, she considered that since the initial period when the pursuer was bedbound she has probably spent an extra two hours per week on household and other tasks due to her husband's continuing restrictions.

[24] I had no difficulty in accepting the evidence given by the pursuer and his wife as being credible and reliable. They were both straightforward witnesses, who were clearly doing their best to assist the court. Neither seemed to me to be disposed to exaggerate.

[25] Mr John Gibson FRCS examined the pursuer for the purposes of the present litigation on 23 August 2011. Mr Gibson explained that the short initial delay in the pursuer seeking medical treatment would not have made any difference to the final outcome. Mr Gibson described the pursuer's spinal fracture as typical of a flexion injury. He thought that the bone structures would have taken between 6 to 8 weeks to heal. The pursuer has not achieved a full recovery. Continuing pain and stiffness are not unusual with an injury of this type. The pursuer's condition is now permanent. He is unlikely to deteriorate in the future. He will continue to suffer from spinal stiffness and will have problems in flexing his back. About 60 per cent of patients with this type of injury are left with pain which limits heavy physical activity, such as lifting and gardening. The pursuer falls into this category. Mr Gibson's view was that heavier DIY work might cause the pursuer discomfort, although he thought that he should perhaps be able to manage lighter jobs and some reasonable household tasks. For instance, he should be able to carry a single bag of shopping. The more the pursuer bent his back, the easier this would become for him. The feeling of continuing pain following this type of injury tends to come from stiffness and guarding against further injury. The main residual problem, in Mr Gibson's view, was with lifting out in front, for example when taking a suitcase off a luggage carousel. It would also be uncomfortable for the pursuer to sit in an aircraft seat for more than a couple of hours. He would have pain when walking over rough ground or digging in the garden since the latter activity involves repetitive spinal flexing. Sitting for long periods would also produce stiffness in his back. Mr Gibson was not cross-examined.

[26] In regard to the factual evidence there was only one area of dispute between the parties. Counsel for the defenders submitted that there was a material difference between Mr Gibson's evidence and that of the pursuer and his wife when it came to the true degree of the pursuer's continuing restrictions. It seems to me, however, that insofar as there might be thought to be any difference, it was highly marginal and of no real significance in the overall scheme of things. In the context of the pursuer's continuing restrictions I understood Mr Gibson merely to be saying that the more the pursuer tries to mobilise his back, the more he may find that he is able to do in the future. For example, he may find that he can carry a single bag of shopping or do some light DIY tasks. There is no doubt, however, that the pursuer suffers from continuing pain and restriction of movement in his spine and that his activities are thereby restricted to a material degree; Mr Gibson had no difficulty in accepting that. Moreover, there is no basis for thinking that the pursuer was trying to exaggerate the continuing effects of his injuries; certainly Mr Gibson was not of that view and it was never put to the pursuer that he was consciously or unconsciously magnifying his problems. The pursuer is clearly a man who enjoyed and was skilled at DIY and I am sure that he would very much like to be able to resume that interest (as well as other activities) if he felt physically able to do so. It may be that there will be some further slight improvement in the fullness of time, but I hold that the pursuer does have genuine and significant continuing restrictions in the flexibility of his spine and that to all intents and purposes these must now be regarded as permanent disabilities.

[27] Finally, the pursuer's GP, Dr Lumsden, confirmed the history and details of the pursuer's medical treatment based on his medical records.

The Private International Law (Miscellaneous Provisions) Act 1995

[28] At the date of the pursuer's accident on 18 June 2008 the question as to which system of law was applicable to his claim fell to be determined by sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 ("the 1995 Act"). The 1995 Act abolished the double actionability rule except for defamation cases (sections 10 and 13). I should perhaps note that the position would now be governed by Regulation (EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), but this did not come into force until 11 January 2009.

[29] Section 11 of the 1995 Act provides inter alia as follows:

"Choice of applicable law: the general rule

(1)  The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict occur.

(2)  Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being -

(a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;

..."

[30] Section 12 of the 1995 Act provides as follows:

"Choice of applicable law: displacement of general rule.

(1) If it appears, in all the circumstances, from a comparison of -.

(a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and

(b) the significance of any factors connecting the tort or delict with another country,

that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.

(2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events."

[31] There was no dispute that, under section 11 of the 1995 Act, the applicable law in the present case would be the law of Romania on the ground that the events constituting the delict (i.e. the road accident in which the pursuer was injured) occurred in that country. Counsel for the pursuer argued, somewhat faintly, that the general rule should be displaced under and in terms of the provisions of section 12 because the pursuer's losses had (almost) all been experienced in Scotland; because all his medical treatment had taken place here; and because liability for the accident had been admitted. Reference was made to Edmunds v Simmonds [2001] 1 WLR 1003; Roerig v Valiant Trawlers [2002] 1 WLR 2304; and Harding v Wealands [2005] 1 WLR 1539 (Court of Appeal) and [2007] 2 AC 1 (House of Lords).

[32] I have no difficulty in rejecting the argument that it would be substantially more appropriate for any of the issues in the present case to be determined by Scots as opposed to Romanian Law. Of course, it is possible to identify a number of factors connecting the circumstances of the present case with Scotland - for instance, the domicile and nationality of the pursuer and the fact that he received medical treatment here. But it is equally possible to identify a number of considerations linking the case with Romania - for example, the domicile of the defenders (and the driver) and the fact that the accident occurred in that country. Section 12 first requires a comparison of the significance of these various factors. I acknowledge that it may perhaps be possible to say that since liability is not in issue, the factors connecting the circumstances of the case with Scotland may be somewhat more significant than those connecting it with Romania. But the analysis does not end there. Section 12 requires as a second stage that one asks whether in the light of that comparison it is "substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues" to be the law of the other country. The test for displacement under section 12 is not an easy one to satisfy; in the words of the statute it has to shown that it would be substantially more appropriate for an issue to be tried under the rules of a legal system different from the law identified as the applicable law under section 11. "Substantially" is the key word and implies that the general rule should not easily be set aside (Roerig per Waller LJ at paragraph 12).

[33] Where the applicable law identified by the operation of section 11 of the 1995 Act is the national law of one of the parties to the case (as is the position here), it is bound to be very difficult to envisage circumstances that would render it substantially more appropriate that any issue should be tried by reference to another system of law. That was the clear view expressed by the Court of Appeal in Harding (Waller LJ at paragraph 20; Arden LJ at paragraph 45; Sir William Aldous at paragraph 76). In my respectful opinion, this view is plainly correct. Here there are two possible systems of law that could be said to have legitimate claims to regulate the disputed issues. By section 11 a strong and clear priority is accorded to Romanian law. That choice can only be dislodged where the statutory test laid down in section 12 is met. It seems to me that the circumstances of the present case are not such that one could say it was substantially more appropriate for Scots Law to govern the issue of what damages may be claimed by the pursuer for the injuries he sustained in the accident. It is, in my opinion, just as appropriate for that issue to be addressed by Romanian Law as by Scots Law. Putting the point another way, there is no clear preponderance of factors pointing towards Scotland and accordingly the test for displacement of the general rule cannot, in my opinion, be said to be met.

[34] The position in the present case may be contrasted with the circumstances in Edmunds where both parties to the action were English and the plaintiff was injured while the defendant (who was found to be solely responsible) was driving a hired car during a holiday in Spain. There the general rule was displaced on the basis that the factors connecting the tort with England were overwhelming. The same cannot be said of the circumstances of the present case, in my view.

Quantification of Damages

[35] In Harding the House of Lords decided that questions of the quantification or assessment of damages were procedural rather than substantive in nature and accordingly fell to be decided by the law of the forum. Since I have decided that the applicable law is Romanian, I must therefore consider whether the various heads of claim advanced by the pursuer are recognised under the law of that country. To the extent that they would be so recognised, the amount to be awarded under each head falls to be assessed or quantified by reference to Scots Law. I should mention that there was no dispute between the parties that in the event that I decided that the applicable law was Romanian, this was the correct approach for me to take when it came to quantifying damages.

Heads of damage available under Romanian Law

[36] Mr Pârvu gave evidence about this aspect of matters. He had produced a number of reports. There was no dispute that most of the pursuer's claims would be recognised as legitimate heads of damage under Romanian Law. The only possible exceptions were his claim for loss of employability and for future services under section 9 of the Administration of Justice Act 1982 ("the 1982 Act").

[37] So far as the claim for loss of employability is concerned, I understood Mr Pârvu to give clear evidence that such a head of damage was not recognised under the law of Romania. In any event, I consider that this claim was not made out on the evidence. There was nothing in the evidence to support the view that the pursuer's continuing spinal restrictions would impair his ability to find other employment as a design engineering manager should he find himself thrown onto the labour market. The evidence was to contrary effect, as shown by the fact that subsequent to the accident the pursuer succeeded without difficulty in finding alternative employment with Subsea Technologies Limited at the same level he had been at with Divex. So whatever system of law applied, this head of claim would fail.

[38] That leaves for consideration just the question of whether the pursuer's claim for future losses under section 9 of the 1982 Act would be available under Romanian Law. Mr Pârvu referred to Article 1385(2) of the New Romanian Civil Code. He translated this as providing that:

"Remedies can be granted for a future loss also, if its occurrence is certain"

[39] In the Romanian language the word "certain" means, according to Mr Pârvu, something like "unavoidable". The new code came into effect on 1 October 2011 and would govern the pursuer's claims for future losses brought in the present action. So far, there were no court decisions known to Mr Pârvu on the applicability of the provisions in the new code to claims for future losses.

[40] With regard to the section 9 claim for the future, I understood Mr Pârvu to express the opinion that the pursuer's inability to carry out tasks such as gardening and DIY work in the future would be regarded as a legitimate head of claim by the Romanian courts. I accept his evidence on that issue.

[41] In conclusion on this branch of the case, I hold that, with the exception of the loss of employability claim, all the heads of damage claimed by the pursuer would be recoverable under the law of Romania.

Quantification of Damages

[42] As I have already explained, the various heads of claim recognised under Romanian law fall to be assessed according to Scottish rules.

Solatium

[43] I deal first with the pursuer's claim for solatium. There was very little between the parties on this issue. Counsel for the pursuer submitted that an appropriate figure would be in the region of £20,000. He cited the Judicial Studies Board Guidelines (10th edition, September 2010) - JSB6 (B) Back injuries: (b) Moderate (ii); Munnoch v Tay-Forth Foundries Ltd 2008 SCLR 232; and Leebody v Liddle 2000 Rep LR 59. Counsel for the defenders submitted that the appropriate figure would be around £18,000. He did not refer to any cases.

[44] In summary, the pursuer suffered a terrifying accident resulting in a serious fracture of his lower spine, from which he has not made a complete recovery. He endured substantial pain and has been left with significant continuing restrictions of movement and flexibility. He is likely to continue to have difficulties in bending and lifting in the future. His enjoyment of life has been significantly impaired. In these circumstances, I consider that an appropriate award for solatium is £20,000.

[45] Interest will run on half of that at 4 per cent a year from the date of the accident until the date of decree and thereafter at 8 per cent a year.

Necessary services rendered to the pursuer

[46] As to the claim under section 8 of the 1982 Act, there was clear evidence that Mrs Wylie had to look after the pursuer for the first 6 weeks after the accident. She thought that this took her about an extra hour each day. It seems to me to be reasonable to allow a rate of £6 per hour for her services. That gives the sum of £252. In his final submissions, counsel for the pursuer advanced no claim under section 8 extending beyond the initial 6 week period when the pursuer was bedbound.

[47] Interest will run at 4 per cent a year for the period during which the services were being provided and thereafter at 8 per cent a year.

Loss of the pursuer's personal services

[48] The evidence given by the pursuer and Mrs Wylie shows that the pursuer was a talented and enthusiastic handyman. He had successfully carried out a considerable range of work in their home and garden. Had he not been injured in the accident, he would have continued to do so for as long as he could. He would also have shared the housework and other domestic tasks.

[49] Since the accident the pursuer has been unable to do any significant DIY or gardening work. Taking a broad view, it seems to me to be reasonable to value the personal services which the pursuer has been unable to provide since the accident in the sum of £2,000 per year (Farrelly v Yarrow Shipbuilders Ltd 1994 SLT 1349; Weir v Robertson Construction Group Ltd 2006 RepLR 114; Wolff and others v John Moulds (Kilmarnock) Ltd and others [2011] CSOH 159). I shall award the sum of £8,250 to cover the period since the accident, just over 4 years.

[50] Interest will run on that figure at the rate of 4 per cent from the date of the accident until the date of decree.

[51] As to the future, I think that it is reasonable to proceed on the footing that, as Mr Gibson suggested, the pursuer should be able to do some lighter DIY type work in the future and to do some more household tasks. As I understood Mr Gibson's evidence, he would encourage the pursuer to persevere with his efforts because the more he mobilises his back, the more he will find that he is able to do. Looking ahead, one should also recall the pursuer's evidence that a good deal of improvement work in the house and garden had been completed before the accident. So there would be less that needed to be done in the future. In the whole circumstances, I consider that it would be reasonable to value the loss of the pursuer's future personal services at the somewhat lower rate of £1,500 per year. The appropriate multiplier for calculating pecuniary loss for life for a man of 53 at the date of the proof would be 21.42 (Ogden Tables, 7^th edition: Table 1). It is, however, likely that the pursuer's capacity to carry out certain types of home maintenance and improvement work would have diminished as he grew older. His below-knee amputation might also have made it more difficult for him to perform heavy work in the future. In the whole circumstances, I consider that it is appropriate to discount the Ogden multiplier by about 30 per cent to one of 15 years. The result is that damages for future loss of the pursuer's personal services are £22,500.

Miscellaneous

[52] It was agreed that the pursuer was entitled to recover the deposit he paid for the cancelled holiday to Majorca and for the cottage in Castle Douglas. These come to a total of £166, on which interest will run at 8 per cent per year. This will run from the date of cancellation of the Majorca holiday, which was 9 July 2008.

Conclusion

[53] The following table shows the amounts I have awarded under the various heads of damages and interest calculated to the date of decree.

Heads of Claim	Damages awarded	Interest	Totals
Solatium	£20,000.00	£1,648.08	£21,648.08
Necessary services rendered to the pursuer	£252.00	£89.34	£341.34
Loss of Personal Services (past)	£8,250.00	£1,360.80	£9,610.80
Loss of Personal Services (future)	£22,500.00	N/A	£22,500.00
Miscellaneous (Castle Douglas and Majorca holidays)	£166.00	£59.60	£225.60

TOTAL DAMAGES AWARDED = £54,325.82

[54] I have reserved all questions of expenses.