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Strang v. Zulquernain, [2005] ScotSC 60 (15 September 2005) SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

A1244/03

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		GRACE ELIZABETH STRANG
		Pursuer and Respondent
		against
		SYED BABAR ZULQUERNAIN
		Defender and Appellant

Act: Mr Iain Artis, advocate, instructed by Iain Smith & Co, Aberdeen

Alt: Mr Kenneth McBrearty, advocate, instructed by Simpson & Marwick, Edinburgh

Aberdeen: 15^th September 2005

The sheriff principal, having resumed consideration of the cause, sustains the appeal and varies the interlocutor of the sheriff dated 1April 2005 as follows:-

In finding in fact 19 delete the sentence: "It is likely that the pursuer will have the operation as a private patient".

In finding in fact and in law 2 delete "£65,978.35" and substitute therefor "£53,816".

In the final paragraph (which begins "THEREFORE SUSTAINS .......") delete "Sixty five thousand nine hundred and seventy eight pounds 35 (£65,978.35)" and substitute therefor "Fifty three thousand eight hundred and sixteen pounds £53,816".

Quoad ultra adheres to this interlocutor and reserves meantime all questions of expenses and appoints parties to be heard thereon in chambers at Aberdeen Sheriff Court on Thursday 22^nd September 2005 at 9.30 am.

Note

[1] In this case the pursuer and respondent sought decree against the defender and appellant for payment of the sum of £130,000 with interest and expenses to compensate her for the loss, injury and damage said to have been sustained by her as a result of a road accident on 6 April 2000. It was not in dispute that the accident was caused by fault and negligence on the part of the defender. Thus, as the sheriff recorded in paragraph 1 of his note, the case proceeded to proof on quantum only and at the end of the proof there were essentially three areas of contention, namely (1) the cost of facial surgery to the pursuer's right eyebrow, (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.

[2] The sheriff dealt with the first of these issues in paragraph 2 of his note. He there wrote:

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

[3] The sheriff dealt with the second issue at paragraphs 3 to 14 of his note and concluded that he should "deduct 5% from the pursuer's claim to reflect the small overall diminution in function prior to her accident". This conclusion was not challenged in the appeal.

[4] The sheriff dealt with the issue of what sum should be awarded to the pursuer by way of solatium at paragraphs 15 to 38 of his note. At paragraph 16 he explained that in the course of submissions both parties had referred him to the Guidelines for the Assessment of General Damages in Personal Injury Cases (6th edition, 2002) compiled for the Judicial Studies Board in England and Wales and had used the classification for brain injuries contained in these guidelines. In addition, the sheriff recorded that he had been referred to the decision of the Court of Appeal dated 23 March 2000 in Heil v Rankin 2001 QB 272 in which the court had 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 to no increase at all in respect of awards which had previously amounted to £10,000 or less. At the end of paragraph 16 the sheriff noted that it seemed to him 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".

[5] At paragraphs 17 and 18 of his note the sheriff observed that the Judicial Studies Board Guidelines provided four broad headings for brain damage, namely very severe, moderately severe, moderate and minor. Parties were agreed in the present case that the pursuer fell into the category of moderate brain damage which, as the sheriff noted in paragraph 18, is divided into three sub-categories (i), (ii) and (iii). At paragraph 19 of his note the sheriff wrote:

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.

[6] At this point it should be noted that in the Introduction to the 6th edition of the Guidelines it is said that the figures therein "have been revised in the light of decisions and inflation since the last edition which took particular note of Heil v Rankin so far as awards over £10,000 are concerned". It is also said: "The figures in this edition are dated to July 2002". In these Guidelines the figures for the three categories are stated as follows:

Category (i) £77,500 to £115,000

Category (ii) £46,500 to £77,500

Category (iii) £22,250 to £46,500

Although the sheriff did not say so explicitly, it is evident that the figures given in paragraph 19 of his note were arrived at by adding more or less exactly 3.806% to each of the figures in the 6th edition of the Guidelines. It appears that this was done to take account of inflation between May 2002 and December 2003, and no issue was made of this in the appeal.

[7] At paragraphs 21 to 36 of his note the sheriff carried out a very careful examination of the various authorities to which he had been referred by the parties and considered their submissions on this branch of the case. Among these authorities were Wallace v Paterson 2001 SCLR 521 (also 2002 SLT 563), McDonald v Chambers 2000 SLT 454, O'Connor v Matthews 1996 SLT 408 and Watt v Bridges (Court of Session, 7April 2004).

[8] At paragraph 37 the sheriff considered the effect upon the pursuer of her brain injury, and at paragraph 38 he explained his decision on this branch of the case as follows:

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.

[9] At paragraph 39 of his note the sheriff applied the deduction of 5% in respect of the pursuer's pre-accident impairment of brain function to the figure of £58,000. He wrote:

39. 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.

[10] The sheriff then dealt with the question of interest which he calculated at £7,318.35 to 31March 2005. This produced a total award for solatium and interest of £62,418.35 to which he added the cost of the eye surgery, namely £3,560, to give a total award of damages of £65,978.35 for which he granted decree in favour of the pursuer with interest from 1 April 2005 until payment.

[11] By interlocutor dated 22 April 2005 the sheriff found the defender liable to the pursuer in the taxed expenses of the action. Thereafter, on 28 April 2005, a note of appeal was lodged on behalf of the defender in the following terms:

The Defender appeals to the sheriff principal on the following grounds:-

It is submitted that, having assessed solatium at £50,000, the Sheriff erred in applying an enhancement of a further £8,000 based on the decision of the Court of Appeal in Heil v Rankin. The Sheriff's assessment of solatium is based principally on consideration of the Judicial Studies Board Guidelines. Since the Fifth edition, published in 2000, the guidelines have already been enhanced to take into account the effects of said decision. The application of a further enhancement is accordingly unwarranted. Likewise, the only judicial precedent acknowledged by the Sheriff as having influenced his assessment of solatium was the case of Watt v Bridges. Said case was decided in 2004 and took into account the decision in Heil v Rankin.

It is further submitted that the Sheriff erred in awarding the Pursuer the cost of having facial surgery carried out as a private patient in the absence of evidence that she intends to undergo the procedure or evidence that she will choose to do so privately.

[12] Opening the appeal, counsel for the defender began by presenting submissions in support of the first ground of appeal. Under reference to Macphail's Sheriff Court Practice (2nd Edn) at paragraph 18.116, Purdie v William Allan & Sons 1949 SC 477 at pages 479/80 and Robertson's Curator Bonis v Anderson 1996 SC 217 at pages 219/20 he submitted that the sheriff had made an error of law or applied a wrong principle in that, having assessed solatium in the first instance at £50,000 (which counsel did not challenge), he had then added to this sum a further sum of £8,000 on the basis of the decision in Heil v Rankin. In this situation, said counsel, an appeal court would be entitled to interfere with the decision of the sheriff to correct the error made by him. It was clear that the 6th edition of the Judicial Studies Board Guidelines by reference to which the sheriff had assessed solatium in the sum of £50,000 had taken into account the decision in Heil v Rankin so that, by specifically enhancing the award of £50,000 by a further £8,000, the sheriff had given the pursuer the benefit of the decision in Heil v Rankin twice over. In paragraph 19 of his note the sheriff had quite properly updated the figures in the 6th edition of the Guidelines to take account of inflation between the date of publication of these Guidelines and December 2003. But he had erred in stating that these figures had not been enhanced by the Heil v Rankin scale (and this counsel for the pursuer accepted). Of the four authorities referred to by the sheriff at paragraph 38 of his note, Wallace v Paterson and Watt v Bridges both post-dated the decision Heil v Rankin and so had taken into account the enhancement proposed by the decision in that case. But in point of fact it was clear that the sheriff had selected the sum of £50,000 upon the basis of his conclusion that the pursuer fell around the border between sub-categories (ii) and (iii) of moderate brain damage in terms of the Guidelines.

[13] In response, counsel for the pursuer submitted that the defender had been in danger of misrepresenting the task which the sheriff had had to carry out and his resulting judgement. The exercise of assessing the proper amount of solatium to the pursuer had been principally one of fact and an exercise of discretion. Under reference to Purdie v William Allan & Sons, McCusker v Saveheat Cavity Wall Insulation Limited 1987 SLT 24 and Robertson's Curator Bonis v Anderson counsel submitted that a court of first instance must be shown to have gone badly wrong in assessing solatium before an appeal court could interfere. In the present case, said counsel, the sheriff had not erred in law in adding the extra £8,000. In initially arriving at the sum of £50,000 for solatium he had not been mechanically applying the Judicial Studies Board Guidelines but had been wielding a broad axe and in so doing he had not erred. The correct approach was to consider whether the sum of £58,000 was insupportable in light of the evidence. Given that there had been no attack on the evidence, the sum of £58,000 was not open to challenge. It was a misrepresentation to characterise it in the way that the defender had sought to do, namely as £50,000 and a supplement thereto of £8,000. If the sheriff had made an error at all, it was of a type such as had been made in McManus v British Railways Board 1993 SC 557. In other words, he had adopted an unorthodox approach to the matter, but had been entitled to do so and, in the absence of any error of law on his part or an attack upon the evidence and given that it could not be said that an award of £58,000 was outwith the bounds of the sheriff's discretion, there was simply no basis upon which this award could be reviewed on appeal.

[14] In my opinion the submissions for the defender on this branch of the appeal are to be preferred. It was accepted that the sheriff had erred in paragraph 19 of his note in stating that the figures set out there had not been enhanced by the Heil v Rankin scale. The chief question here seems to me to be upon what basis the sheriff arrived at the sum of £50,000 to which he referred in the penultimate sentence of paragraph 38 of his note. In the first sentence of this paragraph he stated his opinion that the pursuer fell around the border between sub-categories (ii) and (iii) of moderate brain damage in terms of the Judicial Studies Board Guidelines. Upon the basis of the figures set out in paragraph 19 of his note one might then have expected the sum awarded to the pursuer by way of solatium to have been of the order of £48,270 before allowing for inflation between December 2003 and the date of the sheriff's judgement.

[15] In paragraph 38 of his note the sheriff then went on to discuss four cases in particular. The first three of these were Wallace v Paterson, McDonald v Chambers and O'Connor v Matthews. Of these McDonald v Chambers and O'Connor v Matthews predated the decision in Heil v Rankin. But it is clear that the sheriff did not rely to any significant extent on these cases in arriving at the figure of £50,000. Thus towards the middle of this paragraph he stated: "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 ...... 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".

[16] The sheriff then considered the decision in Watt v Bridges which post-dated the decision in Heil v Rankin (which itself was taken into account by Temporary Judge Reid QC at paragraph [26] of his opinion). The sheriff was satisfied that the pursuer in the present case had suffered greater injuries than had the pursuer in Watt v Bridges. He then concluded that in "all the circumstances and before taking into account the Heil v Rankin 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". Given what he had just said about the four cases to which he had referred and his opening statement that the pursuer fell around the border between sub-categories (ii) and (iii) of moderate brain damage in terms of the Judicial Studies Board Guidelines, I am driven inexorably to the conclusion that the sum of £50,000 was selected by the sheriff more or less exclusively upon the basis of the figures set out by him in paragraph 19 of his note. These figures were stated by him to be as at December 2003, and it is understandable that they should have been increased to a small extent to reflect inflation between that time and 1 April 2005 when the sheriff issued his judgement. Thus the figure of £48,270 adjusted for inflation to 1 April 2005 would indeed have been of the order of £50,000, and what is I think clear beyond peradventure is that this figure, determined as it must have been by reference to the 6th edition of the Guidelines, took into account the decision in Heil v Rankin with the result that the sheriff erred in having expressly added a further £8,000 to this sum to take account of that decision. Moreover, in my opinion this is precisely the type of error of law or principle which may be corrected on appeal so that I have reduced the sum of £58,000 assessed by the sheriff to £50,000.

[17] For the sake of completeness, I should record that counsel for the pursuer submitted that, if I were against him on this branch of the appeal, the appropriate course would be to remit the cause to the sheriff to reassess solatium subject to such directions as I might give. As I understood counsel for the pursuer, the basis of this submission was that some of the cases to which the sheriff had referred had predated the decision Heil v Rankin. This is quite correct but, as already indicated, it is I think perfectly clear that these earlier cases played very little part in the sheriff's initial assessment of solatium in the sum of £50,000. On the contrary this figure was based more or less exclusively on the figures in the 6th edition of Guidelines.

[18] Turning to the second ground of appeal, counsel for the defender accepted the sheriff's finding in fact 6 in which he described the effect of the accident upon the pursuer's eyesight and the fact that she now has a drooping right eyebrow as a result of the accident. He then found: "The drooping eyebrow is cosmetically unsightly and the pursuer is very conscious of it. She will continue to suffer from the physical effects of the drooping eyebrow unless she undergoes surgery".

[19] Counsel for the defender also accepted the sheriff's finding in fact 19 with the exception of one sentence. In this finding the sheriff described a surgical procedure known as a brow suspension procedure which would be available to lift the pursuer's right eyebrow. The sheriff then found: "The cost of this at Ross Hall Hospital in Glasgow would be £3,560. It is likely that the pursuer will choose to undergo this procedure. If she does, the operation would be available immediately at Ross Hall if paid for privately. There would be a significant wait if the pursuer opted to be treated in the National Health Service. It is likely that the pursuer will have the operation as a private patient".

[20] Counsel for the defender accepted that the sheriff had been entitled to find that it was likely that the pursuer would choose to undergo the procedure. But he challenged the sheriff's finding that it was likely that the pursuer would have the operation as a private patient. He pointed out that the pursuer had never been asked about this in her evidence. In this situation, so counsel said, the sheriff had not been entitled to make this particular finding as there had been no evidence to support it.

[21] Referring to paragraph 2 of the sheriff's note, counsel disputed the sheriff's statement that, whatever she decided, the pursuer would be entitled to an award in respect of this matter. And he challenged as illogical the sheriff's conclusion at the end of this paragraph to the effect that, had he acceded to the submission that he should make no award because the pursuer had not given evidence on the matter he 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". Counsel for the defender acknowledged that an additional award would have been appropriate in this context if it had been found that the pursuer would not have the operation at all. In this situation she would indeed have had a continuing brow deformity for which she would have been entitled to compensation. But, given his finding that the pursuer would have the operation, there would be no such continuing deformity and accordingly it would not have been appropriate for the sheriff to make any award to the pursuer in respect of this if he had not in any event awarded her the cost of having the operation carried out privately.

[22] In this context counsel for the defender pointed out that the onus of proof was on the pursuer to prove that she would have the operation carried out privately. He drew attention to the passage in paragraph 2 of the sheriff's note where he had stated that, if she decided to have the operation, the pursuer could have it more or less immediately if carried out privately and that, although he (the sheriff) did not know what the length of the delay would be in the National Health Service, it was "clear from Doctor Kemp's evidence that there would be a delay, and there (was) no reason why the pursuer should wait". After referring to a meeting between the pursuer and Dr Gillham the sheriff continued: "Accordingly, looking to what could be expected of a normal person in (the pursuer's) situation I am satisfied on the evidence on a balance of probabilities that she will have the operation and will have it privately". Counsel submitted that there were a range of options here which a normal person might choose, and it was impossible to say what the pursuer would choose in the absence of any evidence from her on the matter. Thus she might object on grounds of principle to a private operation. She would also have to weigh up the cost of the operation against the length of the wait for it (as to which there had been no evidence).

[23] Counsel for the defender referred here to a report dated 5July 2004 (no. 6/1 of process) by Dr Ruth Gillham to whom the sheriff had referred. Dr Gillham was a consultant neurophsycologist who had assessed the pursuer on 21June 2004. At pages 3/4 of her report she narrated the information given to her by the pursuer during the assessment. At the top of page 4 she recorded that the pursuer had been asked to give a list of any specific problems she had which she believed to be a result of her accident, and towards the middle of page 4 Dr Gillham wrote:

Fifthly, Ms Strang said that she is sensitive about the alteration of her facial appearance. She has virtually no movement of her right brow, and this has produced a degree of facial asymmetry. She has understood that it might be possible to correct this surgically, but that this must be done in the private sector.

Counsel for the defender submitted that this passage in Dr Gillham's report did not support the sheriff's finding that the pursuer would have the operation privately. In particular, the pursuer's understanding as recorded by Dr Gillham that the operation "must be done in the private sector" was neutral on the issue whether the pursuer would have the operation privately.

[24] Referring to the notes of evidence, counsel for the defender drew attention to the evidence of Dr Gillham given on 22 December 2004. At page 44 of these notes Dr Gillham read out without further embellishment the passage from her report which I have just quoted. Counsel indicated that this was the only reference that he had been able to find in the notes of evidence to the question whether the pursuer would have the operation done privately, and this had not justified the sheriff's finding on the point. In short, he had made an assumption which had not been supported by the evidence. This was a simple matter which could have been put at proof to the pursuer, represented as she had been by counsel, and the defender had not been in a position to challenge the assertion that the pursuer would have the operation carried out privately when she had given no evidence on the point.

[25] In response, counsel for the pursuer submitted under reference to Geest plc v Lansiquot 2002 1 WLR 3111 at page 3116 that there was no duty on the pursuer to mitigate her loss. Under reference to Donnelly v William Baird & Co Ltd 1908 SC 536 counsel suggested that a failure to undergo an operation might limit the damages to which a pursuer would be entitled if it was reasonable to have the operation in the first place. In the present case the sheriff had been correct to find that the pursuer would have the operation carried out privately. Counsel referred here to the evidence of Dr Gillham to which counsel for the defender had referred, and also to the evidence of Mr Ewan Kemp, a consultant ophthalmic surgeon who examined the pursuer and who gave evidence on 13 October 2004. At pages 178/9 Mr Kemp was questioned by counsel for the pursuer as follows:

You go on in your report in the last page to note, "She is quite keen to progress with elevation of the right brow to try and improve as much as possible her visual field restriction, but I have made it quite plain to her that this will be of an indeterminate value" - Yes.

This seems in fact to imply to me that on reading that, that "yes there is an impact on her brow but you do not believe that this is a dominant factor". - There may well be an issue on the right-hand side, but not on the left.

You note that the right-hand side was worse than the left. - Yes slightly so, therefore, it would only be evident after surgery if there was an improvement in her visual field and I could not guarantee that it would improve.

But she expressed a keenness? - Yes.

Did you understand that keenness to be associated with some of the social factors you have had experience of? - Like many patients she would want to see the best improvement possible and if you have a slight improvement she would feel that she had achieved something.

Counsel for the pursuer pointed out also a passage at page 180 of the notes where Mr Kemp had confirmed that the cost of having the operation carried out privately at Ross Hall Hospital would be £3,560. Counsel submitted that there was thus every support for the sheriff's finding that surgery would be available to the pursuer and his conclusion that she should be compensated upon the basis that this surgery would be carried out privately.

[26] In this context counsel for the pursuer drew attention to section 2(4) of the Law Reform (Personal Injuries) Act 1948 which provides: "In an action for damages for personal injuries (including any such action arising out of a contract), there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act 1977, or the National Health Service (Scotland) Act 1978, or of any corresponding facilities in Northern Ireland". Counsel for the pursuer suggested that, had the sheriff found that he was required as a matter of law to determine the cost to the pursuer of the operation on the National Health Service, then he would have been in error as he would have been in breach of section 2(4). The sheriff having found that it was reasonable to incur the expense of an operation, the fact that this expense might be avoided by using the facilities available under the National Health Service was not a matter to which he was entitled to have regard in light of section 2(4). Given that the pursuer was going to have the operation, she was, said counsel, entitled to recover the cost of it and it was nothing to the point that she might get it for nothing on the National Health Service. It had not been necessary for the sheriff to consider whether the pursuer would have the operation privately and thus there had been no need to ask her about the point at the proof.

[27] Answering the submissions of counsel for the pursuer in relation to section 2(4), counsel for the defender submitted that, in order for the section to apply at all, it was a pre-requisite that the pursuer should have incurred expense, or would do so. The effect of the section was that, if (and only if) the pursuer had medical treatment carried out privately, then the defender could not argue that she should have mitigated her loss by having the treatment carried out on the National Health Service. In other words, the pursuer could choose whether to have the operation carried out privately or on the National Health Service and, if she chose to have it done privately, then the cost of this was a permissible head of claim. But to get to this stage the sheriff had first to consider whether it had been proved on a balance of probabilities that the pursuer would indeed have the private treatment. Section 2(4) would only have applied if this had been proved. So the critical question remained whether on the evidence it had been proved that the pursuer would have the operation privately.

[28] In my opinion the submissions for the defender in support of this second ground of appeal are also to be preferred. Dr Gillham's statement at page 4 of her report to the effect that the pursuer had understood that it might be possible to correct her facial asymmetry surgically, but that this had to be done in the private sector, is, as counsel for the defender indicated, neutral on the question whether the pursuer would in fact have the operation carried out privately. And her keenness as expressed to Mr Kemp (at page 179 of the notes of evidence) was a keenness for surgery (perhaps sooner rather than later), not to have the operation carried out privately.

[29] In paragraph 2 of his note the sheriff acknowledged that the pursuer had not herself given evidence on the question whether she would have the operation carried out privately. Apart from the two passages in the evidence of Dr Gillham and Mr Kemp respectively to which counsel drew attention, I was not referred to any other passage in the evidence where this issue was canvassed. The sheriff suggested that it was significant that the pursuer had raised both the existence of the operation and the long delays in the National Health Service in the course of her meeting with Dr Gillham. It is correct that the pursuer referred to the operation and her understanding that it had to be done privately. But I was not referred to any passage in the evidence to vouch the proposition that she had raised the long delays in the National Health Service in the course of her meeting with Dr Gillham. It may be, as the sheriff stated, that there would be a delay in the National Health Service, but the length of this was not stated. The sheriff also speaks in this context of what could be expected of a normal person in the pursuer's position. Here in particular it respectfully seems to me that he was engaging in speculation and, in the absence of any evidence from the pursuer herself or from others to indicate what her thinking on this aspect of the matter might be, I think that the sheriff went too far in concluding that the pursuer would have the operation carried out privately. In short, this particular finding was in my opinion not supported by the evidence, and the sheriff therefore erred in law in making it. But of course, as counsel for the defender rightly pointed out (and as the sheriff acknowledged at paragraph 39 of his note), it does not follow that the pursuer should be awarded an additional sum by way of solatium to compensate her for continuing loss given the undisputed finding that she will have the operation.

[30] Turning briefly to section 2(4) of the 1948 Act, I think that counsel for the defender was correct to say that this provision would only have been relevant if it had been proved that the pursuer was going to have the operation carried out privately. If this had been proved, then section 2(4) would have been an answer to a submission that the pursuer was not entitled to recover the cost of the operation upon the basis that she could have it carried out at no expense to herself on the National Health Service. The section begs the question whether the expense of a private operation would otherwise be incurred in the first place. Since this has not been proved, the section does not come into play at all.

[31] Counsel for the defender proposed, and counsel for the pursuer did not dispute, that if I sustained the appeal on both grounds, then the pursuer should be awarded a total sum of £53,816 made up of £50,000 less 5%, namely £47,500, plus interest at 4% on two thirds on this amount from the date of the accident to 31 March 2005, namely £6,316. I have varied the interlocutor of the sheriff dated 1April 2005 accordingly.

[32] It was agreed that expenses should be reserved in the event that the appeal was successful in whole or in part.