Scottish Sheriff Court Decisions

1. This case proceeded to proof on quantum only. There were major areas of agreement between the parties as to the injuries sustained by the pursuer and the consequences of these injuries. There were essentially three areas of contention in the submissions at the end of the proof namely (1) the cost of facial surgery to the pursuer's right brow, (2) the extent, if any, to which the award for solatium should be discounted by reason of pre-accident impaired brain function caused by the pursuer's alcohol consumption and (3) the general level of solatium.

Facial surgery

2. So far as the first of these is concerned the defender's solicitor correctly pointed out at the outset of his submission that there was no direct evidence from the pursuer that she would have this operation, and if she did that she would have it carried out privately. It appears to me that the pursuer has two choices here, either of which will result in a loss being sustained by her. The first is to undergo the operation, which will itself represent a degree of loss. The second is not to undergo the operation in which event she will have a continuing problem with her right eyebrow in respect of her cosmetic appearance, a limited effect on her vision and a psychological effect. That loss, both cosmetic and in respect of the pursuer's confidence would be a very real one to her. If she chooses to have the operation she will then have to choose whether to have it carried out privately or on the NHS. Whatever she decides it appears to me that the pursuer is entitled to an award in respect or this matter. I am satisfied on the balance of probabilities, and although she did not say so herself in terms, that the pursuer will undergo surgery on her brow. It was clear from Mr Kemp's evidence that such surgery is simple with a 98% chance of success and, now that her legal action is out the way and she is able to concentrate on other things in her life, I would expect Miss Strang to decide to have that operation. I also find it established on the balance of probabilities, and notwithstanding the lack of evidence from Miss Strang on this point, that she will have this operation carried out privately. When she decides to have operation she can have it more or less immediately if carried out privately. Although I do not know what the length of the delay would be in the National Health Service it was also clear from Doctor Kemp's evidence that there would be a delay, and there is no reason why the pursuer should wait. It is I think significant that Miss Strang raised both the existence of the operation and the long delays in the NHS in the course of her meeting with Dr Gillham. Accordingly, looking to what could be expected of a normal person in Miss Strang's situation I am satisfied on the evidence on a balance of probabilities that she will have the operation and will have it privately. I accordingly award her the costs of this surgery. Had I acceded to the defender's solicitor's submission that I should make no award because Miss Strang did not give evidence on the matter, I would have awarded her a higher figure of solatium to take into account the continuing disfiguring aspects and the emotional or psychological effects of her current brow deformity and the effect on her vision

The effects of alcohol abuse

3. So far as the second area of dispute is concerned this causes a great deal more difficulty. The defender's case on Record is contained in Answer 4 on page 6 and is in the following terms:-

"The nature and extent of any loss, injury and damage sustained by the pursuer in consequence of the accident condescended upon are not known and not admitted. Explained and averred that when the pursuer was reviewed at Aberdeen Royal Infirmary on 8^th August 2000 no major neurological impairment could be identified and it was noted that she had made a full recovery. Further explained and averred that the pursuer had previously suffered from serious alcohol dependency. The condition had resulted in delirium tremens and severe derangement of liver function. Such a condition would be expected to cause some atrophy of the brain with consequent intellectual impairment. Such generalised atrophy of the brain was noted on a CT scan of the brain carried out on the pursuer's initial admission to hospital following the accident. The dependency had continued until 1999 and had rendered the pursuer unfit for work. Further explained and averred that such brain damage as was sustained by the pursuer was restricted to the right hemisphere. Any consequent lowering of performance is restricted to functions associated with that part of the brain and in particular to visuo-spatial analysis and non-verbal memory. The pursuer did not suffer a severe diffuse brain injury. Any loss of verbal memory is probably a consequence of alcohol induced atrophy of the brain".

4. The pursuer deals with the issue in condescendence 4 where it is averred on her behalf that she suffered a diffuse injury to the entire brain, and that she has suffered intellectual impairment as detailed in the report of Ann Hossack, Chartered Psychologist, the impairment being due to the accident and not to a pre-existing condition of the brain.
5. On this aspect of the case evidence was led from Mr Currie, the Consultant Neurosurgeon who performed the operation on the pursuer, Doctor Durward, a Consultant Neurologist, Mrs Ann Hossack, a Chartered Psychologist and Doctor Ruth Gillham, a Consultant Neuropsychologist who specialises in dealing with patients with head injuries and who has particular expertise in identifying the functional consequences of brain injury. None of Dr Durward, Mrs Hossack and Dr. Gillham was involved in the treatment of the pursuer at the time of her injury but each examined her and prepared a report for the purposes of the litigation

 



 

6. Mr Currie's evidence was of the greatest assistance in setting out the injuries which the pursuer sustained and the operative procedures which she underwent. The other three medical witnesses specialised in the functional consequences of the injuries and surgery. While Mr Currie expressed some opinions of the functional consequences of the pursuers injuries, and indeed had not recorded any functional consequences when he examined the pursuer as an outpatient in August 2000 it is clear that he was looking at the pursuer as someone who was lucky to get out of hospital, and that his examination of her at that time was not an in depth functional assessment.
7. Mrs Hossack carried out a number of psychometric tests on the pursuer. These tests were considered appropriate by Dr. Gillham and Mrs Hossack's assessments were not really disputed and were relied on to a considerable extent by Dr Durward and Dr Gillham. Mrs Hossack's test results, which form the basis for Finding in Fact 7, showed a marked disparity between left and right hemisphere brain function. On all the evidence by far the most probable cause of this was the injuriy sustained in the accident.
8. The principal area of dispute was between Dr. Durward and Dr Gillham on the issue as to whether the pursuer had suffered a diffuse brain injury in the course of the accident or not. If she had, as Dr. Durward opined, then some of her loss of function relating to left hemisphere brain activity might be attributable to the accident. If she had not suffered a diffuse injury, as was Dr. Gillhams opinion, then her loss of left hemisphere function would likely be wholly attributable to a pre-accident cause. There was clear evidence that such a potential cause existed, namely the pursuer's earlier alcohol abuse.
9. Dr Gillham is a Consultant Neuropsychologist with special expertise in identifying the functional consequences of brain injury. This is a regular part of her clinical practice and 50% of her work deals with patients with head injuries. Her expertise seemed to me to be very specific to the nature of the dispute, and she was a most impressive witness in terms of her obviously thorough understanding of her subject and her ability to communicate it. At page 59 of volume 4 of the transcript she quotes from the summary and opinion contained in her report as follows:-

"Ms Strang's history of alcohol abuse is relevant. The records indicate that she has probably had three episodes of delirium tremens and that a CT scan taken before her head injury showed generalised atrophy. Alcohol abuse of this degree may well produce cognitive impairment most likely to be in the domain of learning and memory. I think that considering this history Ms Strang's memory is remarkably good, but it is my opinion that the subtle difficulty in learning new word associates detected on formal testing is most likely to be the result of alcohol abuse and less likely to suggest a diffuse effect of head injury. On the balance of probability I think that Ms Strang has had a relatively focal head injury with damage confined to the right hemisphere sparing frontal lobe functions, speech and verbal memory. I would accept that the clear deficits she has in non-verbal memory are the result of the head injury. I do not think that there is evidence here which would justify a diagnosis of severe diffuse brain injury. In summary Ms Strang received a brain injury affecting functions of the non dominant right hemisphere. There is probably some slight impairment of an aspect of verbal memory that on the balance of probability is related to the previous history of alcohol abuse."

That remained her opinion at the proof.

10. I did not consider that the fact that there had only been one and not three clinically diagnosed episodes of delirium tremens affected her conclusion which was based on the pursuer's pattern of long term alcohol abuse and took into account that there was evidence in the form of the 1999 CT scan to the effect that at that time there were signs of generalised atrophy to the pursuer's brain
11. Doctor Durward, at page 211, having reviewed the delayed complications of the accident in respect of memory and concentration, including stamina and personality change, visual field defects, smell and taste said

"I am happy to accept that this lady's memory would not be unscathed after her adventure with alcohol, even if the head injury had not taken place. I do not want to create the impression of precision but if we were to say "what contribution do you have from the use of alcohol and what contribution from the accident" I think the split is 90 to the accident and 10 to the alcohol".

Doctor Durward's opinion related, as I understood him, to memory as a whole. Dr. Gillham was more specific when she referred to the probability of there being "some slight impairment of an aspect of verbal memory which on the balance of probability was related to the history of alcohol abuse".

Dr. Durwatd continued:-

"I must observe that those who have a damaged brain for any reason whatsoever are above average vulnerability to subsequent damage. This was not a healthy brain that was attacked, this was a brain that been exposed to alcohol and attacked, but you take your victim as you find her"

and later on the same page:-

"Had I met this lady before her head injury I would have expected to meet someone who wasn't as bright as she had been, or as competent but she still had a lot to lose"

12. In this particular case where all the experts are confident of there being a degree of pre accident impairment I do not think that the question of whether or not the accident had caused a diffuse brain injury has a significant impact on the quantification of damages unless that diffuse damage was severe. As Dr Durward put it at p. 212:-

"The left hemisphere is functioning now as her whole brain would have functioned had she not had the brain injury" and later on the same page "I think the left hemisphere of brain has been relatively undamaged and language function is a pretty good indicator of how it is working."

He considered, on the same page, that the left hemisphere had been damaged as part of the diffuse brain injury on impact, but that that was not relevant to her subsequent management. When asked if he could qualify that diffuse injury between nil severity and great severity he replied, I considered significantly:-

"It is something in between. This is something I would put to a psychologist"

13. In these circumstances I am happy to attach considerable weight to the opinion of Dr Gillham that there was no severe diffuse brain injury. I am satisfied that the injuries which Mrs Strang suffered while of great severity to the right temporal lobe and while possibly involving a degree of diffuse brain injury did not amount to a severe diffuse brain injury. I also find it established on the evidence of both Dr Durward and Dr Gillham that the pursuer's pre-accident alcohol consumption had an adverse effect on the functioning of the pursuers brain prior to the accident, particularly in the field of verbal memory. This is incapable of anything approaching a precise measurement without detailed evidence as to the physical state and functional ability of the pursuer's brain immediately prior to the accident and, ideally, its functional ability prior to alcohol damage. This, unsurprisingly, is not available.

 

 

14. The proper method of assessing the pursuer's damages as a consequence of the injury in a perfect world would be to assess her condition immediately prior to the accident, assess her condition today, subtract the one from the other and attribute the difference, in the absence of any evidence of a competing cause, to the accident. There is no way of assessing precisely what the pursuer's condition was prior to the accident. We know from the medical notes and the evidence that her brain would have suffered a deficit as a result of her alcohol consumption. The nature and extent of that alcohol consumption is not known, and the deficit from the pursuer's "normal" pre alcohol state caused by her alcohol consumption cannot be ascertained. It seems to me in those circumstances that the best approach starts with Doctor Durward's attribution to pre accident alcohol abuse of a loss of 10% of the memory function. This is itself but an unidentified percentage part of the overall function of the brain in the areas with which this case was concerned. This seemed to me to be consistent with Dr Gillham's evidence at page 39 of 22^nd December to the effect that had she examined the pursuer in 1999 she would be surprised if she had not been able to detect "some subtle impairment of learning and memory as a consequence of her alcohol abuse". This opinion was independent of the report concerning the 1999 CT scan. The reference to that scan showing generalised atrophy of the brain in 1999 was however consistent with her opinion. It is clear, even allowing for Dr. Durward's warning about imprecision, that the deficit in the pursuer's overall brain function in the areas which are relevant to this inquiry would be a small single figure percentage. There would, however, both on Dr. Durward's evidence and that of Dr. Gillham be a definite loss of function which, albeit small and incapable of precise measurement, should be taken into account as, on the evidence, she had a pre-existing impairment. The result of that impairment is that not all of her loss of function can be attributable to the accident. Mr Thomson for the defender suggested that I discount the matter on a broad axe basis. Given the view that I take that we are dealing only with a percentage of a percentage of brain function, that axe is quite a small one and I will deduct 5% from the pursuer's claim to reflect the small overall diminution in function prior to her accident.

Quantum

15. The final matter on which the parties were in dispute was the quantification of the pursuer's claim.
16. In the course of submissions both parties made a reference to the Judicial Studies Board guidelines for the assessment of general damages and personal injury cases (6^th edition 2002), and both used the classifications for brain injuries contained in those guidelines. In addition, I was referred, in general terms, to the impact on these guidelines of the decision of the Court of Appeal in Heil v Rankin 2001 QB 272 where the Court of Appeal proposed a sliding scale of increases on awards for more serious injury ranging down from increases of one third at the most serious end of the spectrum in accordance with a graph which is appended to the judgement. The range of increase is from 30% in the case of catastrophic injuries previously attracting an award of £150,000 or higher, down to no increase at all in respect of awards for injuries previously attracting awards of £10,000 or less. The increases which the Court of Appeal considered appropriate were in respect of general damages awards for pain, suffering and loss of amenities. In delivering the decision of the Court of Appeal on what was clearly a statement of judicial policy in England in response to recommendations of the Law Commission for significantly higher increases (which the Court of Appeal did not accept) the Court took into account the conclusions of the Commission that awards in England were reasonably "on a par" with those in Scotland (except for jury trials), and concluded that the position in Scotland as well as in Northern Ireland suggested that some increase to awards for non-pecuniary loss would be appropriate in England to reflect what the commission considered to be the public perception, reflected by jury awards in Scotland, in favour of higher awards. In rejecting the Law Commissions recommendations for significant increases, Lord Wolf MR said at paragraph 82 :- "The conclusion to which we have come makes it clear that the result of our decision will not radically alter the court's present approach to the assessment of damages. This is because we do not consider that it would be appropriate to increase the levels of awards to the substantial extent recommended by the commission. We are of the opinion that a modest increase is required to bring some awards up to the standard, on which both sides are agreed, namely to a sum which is fair, reasonable and just". That standard is the standard which is appropriate in Scotland. As it is well established that there is no reason in principle for any significant difference between awards of general damages for pain, suffering and loss of amenity in the one hand and solatium on the other, and as it is a common place now for English authorities to be referred to in determining quantum of damages in Scotland (see Lady Paton's remarks in Wallace v Patterson infra at para21) it seemed to me appropriate that the Heil v Rankin sliding scale should be applied not just to the English awards made before the date of Heil v Rankin but also to Scottish awards made before that date.
17. The Judicial Studies Board guideline provides four broad headings for brain damage namely very severe, moderately severe, moderate and minor. Parties were agreed that the pursuer fell into Category (C) - moderate brain damage, albeit the defender's solicitor did point to some of the factors contained in the description of minor brain damage as being appropriate in the pursuer's case.
18. So far as moderate brain damage is concerned, the Judicial Studies Board firstly state that it is distinguished from moderately severe brain injury (Category (B)) by the fact that the degree of dependence on others is markedly lower. Within the category there are three sub-classes namely (i) cases in which there is moderate to severe intellectual deficit, a personality change, an effect on sight, speech and senses with a significant risk of epilepsy and no prospect of employment. Sub-category (ii) applies to cases in which there is a moderate to modest intellectual deficit, the ability to work is greatly reduced if not removed and there is some risk of epilepsy. Sub-category (iii) supplies to cases in which concentration and memory are effected, the ability to work is reduced, whether there is small risk of epilepsy, and any dependence on others is very limited.
19. The Judicial Studies Board range of damages for each of the three sub-categories, updated to December 2003, but not enhanced by the Heil v Rankin scale, are as follows:-

Category (i) £119,380 to £80,450;

Category (ii) £80,450 to £48,270, and

Category (iii) £48,270 to £23,100.

20. Mr Artis. for the pursuer submitted that an appropriate level of damage would be to the bottom end of category (i). He referred me to a number of cases including:-
21. Watt v Bridges - Butterworths Direct 7^th April 2004 - J Gordon Reid QC. In this case the pursuer was awarded £33,000 solatium (including an element for a fractured wrist and facial injuries). So far as her brain injuries were concerned these included a fracture of the skull, contusions of the occipital and frontal lobes leading to cognitive impairment on admission, Glasgow Coma Scale 14 with post-traumatic amnesia indicative of severe brain injury. Mr Artis characterised Miss Watt as being a "very much less brain damaged person" and said that her award was far too low for the present case.
22. Wallace v Paterson 2001 SCLR 521. The pursuer, a 20 year old student, suffered a severe head injury, comprising a fractured skull, diffuse brain damage, intra-ventricular haemorrhage, damage to hearing. The Lord Ordinary (Lady Paton) was satisfied that her head injury had severally impaired her physical, mental and emotional functioning. Her life had been significantly restricted and altered. She had a degree of insight into her condition which made her situation all the more frustrating. She had suffered from depression and had suicidal thoughts. The Lord Ordinary (Lady Paton) awarded £95,000 for solatium, which included a small element in respect of other injuries including a fractured clavicle. In today's figures the award would be worth £104,000. Mr Artis accepted that this might be too high but there was a good deal of similarity between Miss Wallace's case and the present case. It is worth noting that in the Wallace case Lady Paton, at paragraph 64, found the decision of the Court of Appeal in Heil v Rankin highly persuasive, and considered that Scottish Courts, both can and should, find assistance in the guidelines set out in Heil.
23. O'Connor v Matthew 1996 SLT 408. A 12 year old boy suffered a very severe brain injury with bilateral hemispheric damage and loss of brain tissue. He was in a coma for 8 weeks and suffered from retrograde amnesia. He had a 4 to 5% increase risk of developing epilepsy. He was left with a gross bilateral involuntary tremor of all four limbs. He had little, if any, control over the rate, range, force or direction of his limb movements, particularly when agitated or anxious. He required his meat to be cut up. He could not drink without using a straw. His IQ in respect of verbal skills was above average but was markedly less than average in respect of problem solving skills and ability to absorb new information. He had lost the prospects of a professional sporting career. The Lord Ordinary (Lord Marnoch) awarded £70,000 which Mr Artis said was the equivalent, updating for inflation, of about £87,000. Applying the Heil sliding scale would increase that award by 20 -25%. Mr Artis accepted that this was at a higher level of disability than the present case.
24. McDonald v Chambers 2000 SLT 454. In this case the pursuer, having been in a coma for 4 weeks, was left permanently brain damaged. Her personality had been very adversely affected and was unlikely to improve, and she had been rendered unemployable in any commercial or professional undertaking. She suffered from generalised intellectual impairment with severe impairment of memory, impaired psychological function due to poor temper control and rigidity in thinking and behaviour and slight disinhibition; she suffered a mild degree of anxiety and depressive symptoms along with specific anxieties relating to her speech patterns and walking in open spaces; she had adopted a widened gate, obesity had become a problem, she had a residual high level word finding deficit and a reduced ability to perform advanced activities of daily living due to anxiety and cognitive impairments She was awarded £115,000 for solatium which, applying the Heil sliding scale would, by my reading of the scale, have resulted in a figure of approximately £135,000 before applying any factor for inflation since January 2000. Mr Artis accepted that this was of a higher level of disability than suffered by the pursuer in the present case. There were, however, similarities and in particular the insight into her problem which was a persuasive factor for the Lord Ordinary (Lord McCluskey).
25. Mr Thomson for the defender made the preliminary point that the pursuer's history of alcohol abuse was important. Solatium was he said crude estimate of an impairment on life in financial terms and therefore the pre-existing impairment from which the pursuer started required to be reflected in the reward, as part of her current deficit was already there. He accepted that the only approach to this could be, as I have referred to earlier, a broad axe approach. In addition to the cases referred to by Mr Artis, Mr Thomson referred to the following cases.
26. Gillingham v Battle; Kemp & Kemp unreported May 2002, page 53113. A 70 year old woman, 78 at trial sustained a contusion of the left temporal lobe with acute left sided sub-durial haemotobia. She suffered from disfacia, a generalised disruption of intellectual functioning and a 25-30% risk of developing epilepsy. She was unable to name a number of common objects, to recall the names of members of her close family and had difficulties in verbal comprehension and expression. She experienced dizziness and nervousness and had lost all interest in her pre-accident pursuits and was unable to look after herself in dealings with third parties. The award for general damages was £45,000, £48,000 allowing for inflation. Mr Thomson submitted that the injuries sustained by the plaintive in Gillingham were more serious than those sustained by the pursuer in the present case.
27. James v Starbuck, December 2001. Kemp & Kemp page 53118. A 17 year old female, 22 at the time of trial, sustained a left periorbital heomotobia and two or three minor haemorrhages in the left parieto-occipital region of her brain. The injury, coupled as it was with post-traumatic amnesia, was classified as severe. The plaintive had made a remarkable recovery and could live independently, although she suffered chronic fatigue, unpredictable temper control, concentration difficulty and memory problems. She had been able to undertake a part time job but would not be able to fulfil her ambition of running her own business. She was considered to be towards the top of the lowest category (iii) in the JSB Guidelines for moderate brain damage. The general damages were £42,500.
28. Cameron v Cable & Roberts April 1995, Kemp & Kemp 53121. A 21 year old plaintive suffered a very serious head injury with impairment of memory and concentration, bouts of bad temper, significant personality change, fatigue and lack of drive, language deficit, lack of confidence and a reduced interest in life. He had a high IQ and was physically fit and general damages were assessed at £35,000 which, in today's money would be £43 - £44,000.
29. Re Potter October 1996, Kemp & Kemp 53124. The pursuer was assaulted while playing football and suffered a "devastating" brain injury from which he nearly died. By the time of the award, 7 years after the incident, his residual symptoms were mild hemiparesis, reduction in general interest in life, lack of motivation, impaired concentration, mood swings and depressive phases. His voice power was quiet. He had developed a psychotic illness, caused by the head injury. In general damages were assessed at £35,000, being £42,500 in December 2004 (excluding the operation of Heil).
30. Re Rigden August 2001, Kemp v Kemp 53125. A 21 year old claimant, 28 at the date of the hearing, suffered an assault resulting in an occipital fracture to the head, contusion to the frontal area of the brain. No surgery was necessary but he suffered post-traumatic amnesia and spent 14 days in hospital. He suffered severe headache and found it difficult to concentrate. He suffered a loss of taste and smell. He experienced a change in personality, becoming irritable and bad tempered as well as finding it increasingly difficult to concentrate yet he suffered severe headaches. He was awarded £37,500 from the Criminal Injuries Compensation Board.
31. Mr Thomson reviewed the cases referred to by Mr Artis. So far as Watt v Bridges was concerned he considered that the present pursuer's case was worse, but not much worse than Miss Watts. That case, he submitted, would be consistent with an award in the present case of approximately £40,000.
32. He submitted that O'Connor v Matthews disclosed marked physical disabilities on the part of the pursuer, putting him in a different league altogether from the present pursuer. It was seen as being in the same league as paraplegia (see Lord Marnoch at page 410). In addition, the condition of the pursuer in O'Connor was such as to require ongoing care, assessed for the future at £13,100 per annum.
33. He submitted that Wallace v Paterson was also in a different league with the constant requirement for a companion helper and personal trainer.
34. In McDonald v Chambers there was an ongoing requirement for 24 hour care at £50,000 per year. This case too was in a different league, both having regard to the need for care and the injuries sustained.
35. He submitted that none of the three last mentioned cases were of practicable assistance.
36. Reviewing the injuries which the pursuer had in fact sustained and the lasting effects on her of these injuries as spoken to by the pursuer herself and the various experts who had seen her he submitted that the case was sub-category (iii) of the moderate brain damage category of the Judicial Studies Board. In particular he pointed out that even sub-category (iii) could comprehend very limited dependence on others. Mrs Strang, the pursuer, had effectively no dependence on others. He submitted that there was no evidence of diffuse brain injury having been caused by the accident, and the pursuer had the generalised atrophy of the brain prior to the accident, probably as a result of her alcohol abuse. Mr Thomson submitted that single issue aside there was very little dispute between the party relating to the consequences of the accident for the pursuer. She had sustained a life threatening injury from which she had, on any view, made an excellent recovery. He submitted that an appropriate award would be in the region of £40,000,

Decision

37. There is no doubt that the pursuer suffered a life threatening brain injury in a road accident with the very severe consequences outlined in the Findings in fact. There also seems to be no doubt that she has made a remarkable recovery, and that much of this must be down to her own strength of character and personality. Nonetheless there is no doubt that she has long-term permanent deficits as detailed in the findings in fact. Throughout her life, probably because of her childhood heart illness, she lived a quiet life with simple and non-physically demanding pleasures such as knitting, sewing, cooking, baking and associating with friends. As a consequence of the accident she can no longer knit and sew, and has lost the incentive to cook or bake. She has retained her ability to socialise with friends, but has completely lost the ability to make new friends. She has no confidence in forming any form of partnership relationship although she has been married and has had such relationships in the past. Having gone though a difficult period with alcohol abuse she had, by her own willpower, overcome that problem. Immediately before her accident she had obtained her former employer's agreement that she should be entitled to take her pension early on the grounds of her inability to work brought about by her arthritis. Her life was stable and she had a lot to look forward to. As a consequence of the accident she has lost a lot. It does not seem tome to matter that one's pleasures in life are simple, as the pursuer's were. She has still lost them and her life must be significantly more empty and less rewarding and enjoyable than it was immediately prior to the accident.
38. Applying the language of the Judicial Studies Board in assessing, as they did, the whole range of consequences that can come from brain injuries, in my opinion, and without in anyway minimising what she has suffered, Mrs Strang falls around the border between sub-categories (ii) and (iii) of moderate brain damage in terms of the Judicial Studies Board evaluation. She displays aspects or symptoms from each. The severity of the injuries suffered by the pursuer in Wallace v Paterson, McDonald v Chambers and O'Connor v Matthews, coupled as they each were with the need for long-term personal care of the pursuer in my mind takes the cases, in Mr Thomson's words, into a different league from the pursuer and their use in assessing a figure of damages for the pursuer is really only to indicate that it will require to be significantly less than the present day value of each of these awards. So far as the Watt v Bridges case is concerned I am satisfied that Miss Strang has suffered greater injuries than Miss Watt did. In particular, Miss Strang has suffered a complete loss of her sense of smell and a loss of her sense of taste other than at the extremes. Miss Watt was capable of making new and meaningful relationships, she had been able to return to work in the nursing profession, albeit she had found it physically demanding. Miss Strang has to concentrate so much on herself that she cannot accommodate new relationships with the opposite sex or even make new friends and, even it had not been for her arthritis, would have been unable to engage in meaningful employment by virtue of her brain injuries. In all the circumstances and before taking into account the Heil enhancement factor it seems to me that an appropriate award of damages for solatium in this case, had the pursuer not suffered from the consequences of alcohol abuse, would have been £50,000. Applying the Heil factor on an approximate basis enhances this to £58000.
39. As I have indicated earlier I consider that an appropriate deduction having regard to Dr Gillham's and Doctor Durward's evidence as to loss of function would be 5%. This reduces the award of solatium to £55100. In reaching that figure I have taken into account the problems with her right eyebrow which the pursuer has suffered to date but have assumed that she will now proceed to have her operation. There is therefore no element of future loss arising from the problems with the eyebrow. .
40. So far as interest was concerned Mr Artis submitted that I should split the award of solatium into three parts. Having regard to the immediate "front loading" of the consequences of the pursuer's injuries he submitted that I should award interest at the full judicial rate from the date of the accident on one third of the award, interest at one half of the judicial rate on another third, on each case to the date of decree and attribute one third to the future.
41. The defender submitted that it was appropriate to allocate two thirds of the solatium to the past and award interest at one half of the judicial rate on that two thirds.
42. Mr Artis's approach seems to me to be a novel one. I was not referred to any authority where any court, far less an appellant court, had found favour with that approach. I consider that the correct approach for me to take is the traditional one, namely to divide solatium into past and future and award interest at one half of the judicial rate for the past.
43. As parties both submitted that past solatium should be two thirds I will award interest on £36733 at four per cent per annum from the date of accident, 6^th April 2000, until 31^st March 2005. This produces an annual figure for interest of £1469.32. and a total award of interest on past solatium to 31^st March 2005 of £7318.35. The total award for solatium and interest of £62,418.35, to which should be added the cost of the eye surgery of £3,560, giving a total award of damages of £65978.35.
44. I was asked to reserve the questions of expenses and have done so. I have also certified Mr Curry, Mr Kemp, Dr Durward, Mrs Hossack and Dr Gillham as expert witnesses. There was some dispute as to whether Mr Curry should be considered a witness as to fact. There is no doubt that he was this but he was also of considerable benefit to both sides in the opinions he was able to give.