[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Young & Ors v McDowall [2000] ScotCS 154 (9 June 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/154.html Cite as: [2000] ScotCS 154

[New search] [Help]

[1] On 12 May 1996 the car in which the first pursuer was travelling as a passenger and which was being driven by his mother, Sheena Young, was in collision with a vehicle travelling in the opposite direction on the A71 road near Breich. That vehicle had been pushed onto the wrong side of the road as a result of being struck from behind by a vehicle driven by the defender. In the accident, Sheena Young was killed and the first pursuer sustained serious injuries. In this action the first pursuer seeks damages both in respect of his personal injuries and in respect of the death of his mother. The second and third pursuers, the parents of Sheena Young, also seek damages in respect of the death of their daughter. For the purpose of this action the defender admitted that the accident was caused by negligence on his part.

[2] In the course of the proof there was lodged a Joint Minute of Agreement (No. 23 of process) setting out various aspects of the case upon which agreement had been reached between the parties. Paragraphs (1) and (2) of the Joint Minute narrate that the claims at the instance of the second and third pursuers have each been settled at the sum of £1500 inclusive of interest to date. I was informed that payment of those sums had already been made, and I was therefore invited to assoilzie the defender from the third and fourth conclusions of the summons. Paragraph (3) of the Joint Minute narrates that the value of the first pursuer's claim in respect of his mother's death is agreed at the sum of £5401 inclusive of interest to date. I was therefore invited to grant decree against the defender for payment to the pursuer of that sum. I was informed that of the total £5000 was principal and £401 was agreed interest to date.

[3] Agreement was also reached on a number of aspects of the claim made by the first pursuer (hereinafter "the pursuer") in respect of his personal injuries. The following paragraphs of the Joint Minute expressed the following agreement on individual heads of loss:

[4] The heads of loss in respect of which there remained a dispute were accordingly (i) the balance of wage loss to date, i.e. in respect of the period from October 1996 to date, (ii) future loss of earnings, and (iii) necessary services likely to be rendered to the pursuer by his father in the future. To some extent the figures upon which the assessment of those items of loss depends are the subject of agreement in the Joint Minute. I shall return to the detail of those elements of agreement in due course. The difference between the parties in respect of the disputed items relates in part to divergent contentions as to the severity of the disabling effects of the injuries suffered by the pursuer. It is therefore necessary to examine the evidence about the injuries which the pursuer suffered and the effects which those injuries have had upon him.

[5] The pursuer was the front seat passenger in the car in which he was travelling when it was in head-on collision with the other vehicle. He suffered head injuries. At the scene of the accident he was found to be in coma (Glasgow Coma Scale 6). He was taken from the scene of the accident to the Accident and Emergency Department of St John's Hospital, Livingston, where he was resuscitated. His Glasgow Coma Scale score rose to 12. He was intubated, ventilated and transferred to the Department of Clinical Neurosciences at the Western General Hospital, Edinburgh. A CT scan of his head showed punctate haematomas in the left lentiform nucleus. He also had right sided maxillary and zygomatic fractures. The fractures did not require treatment. His intracranial pressure was monitored, but there were no problems and he was extubated and woke up on 14 May to a Glasgow Coma Scale score of 14. He has post-traumatic amnesia which extends from the date of the accident until 22 May, a total of some ten days.

[6] It is convenient, by way of preface to a summary of the pursuer's working history, to take note of the terms of various reports of his performance at school which are contained in No.7/2 of process. They relate to his second, third and fourth years of secondary school. They contain repeated references to lack of concentration and lack of effort, and to disruptiveness in class. There are, however, in contrast, also a number of references to his being capable of a better performance, and to his being a pleasant pupil. There are isolated better reports, e.g. "can work hard and with enthusiasm" (Class 2, geography), "a very pleasant pupil who is capable of doing a lot of work in class" (Class 4, German), "contributes well to discussion in class" (Class 4, modern studies).

[7] After leaving school, the pursuer obtained an engineering apprenticeship with Lothian Engineering Co (Whitburn) Limited. That involved his working four days a week for Lothian Engineering, and attending day-release classes at West Lothian College one day a week. Mr Ernest Duncan, the liaison officer of the Skill Seekers Department at West Lothian College, explained that the pursuer was put in touch with the College by the Career Service, and the College organised the placement with Lothian Engineering. The college course was intended to lead to an SVQ Level 3, normally after a total of three years study. Thereafter the apprenticeship would be completed in a further year, at which stage the pursuer would be a qualified tradesman. According to Mr Duncan the pursuer had, by March 1996, completed the second block of SCOTVEC modules out of the three blocks that would lead to an SVQ Level 2. He was making good progress. The college had received satisfactory reports of his progress from Lothian Engineering. Mr Duncan said that there was no reason to suppose that, if the accident had not occurred, the pursuer would not in due course have obtained an SVQ Level 3 and gone on to qualify as a tradesman. That assessment was confirmed by Mr W K Stirling, the managing director of Lothian Engineering. He stated that before the accident the pursuer was a responsible and acceptable apprentice, who seemed to be developing into a competent employee. He expressed the view that he would in due course have obtained an SVQ Level 3 and completed his apprenticeship, although he did not think that he was quite capable of going on to obtain the higher qualification of an HNC (Higher National Certificate).

[8] In the event the pursuer returned to work in about August 1996. He continued at work and at college until 29 October 1996, when he was involved in an accident in the course of his work. He was working at a pyramid rolling machine, the purpose of which was to impart a curve to sheet metal. The machine was capable of bending metal up to 15 mm thick and exerting a force of 200 tonnes. The pursuer's (non-dominant) right hand was drawn into the machine and crushed. According to the pursuer, the accident happened because the operator of the machine set it in motion without warning him, at a time when he was attempting to remove a sheet of metal from it. On that narrative, the pursuer has pending in Linlithgow Sheriff Court an action of damages against Lothian Engineering. According to the evidence given by Mr Stirling, his investigation made after the accident revealed that it had resulted from inattention or a lapse of concentration on the part of the pursuer. It appears, however, that his sole source of information to that effect was the operator of the machine. The immediate effect of that accident was to render the pursuer again unfit for work.

[9] Following the industrial accident, the pursuer's placement with Lothian Engineering and his course at West Lothian College were both brought to an end. They have never been resumed. It seems reasonably clear from the evidence of Mr Duncan that the initial termination came about for the formal reason, in accordance with the scheme under which the placement was being provided, that the accident rendered the pursuer unfit for work for more than three weeks. Both Mr Duncan and Mr Stirling indicated that there was discussion as to whether it would be appropriate for the pursuer to resume the course. The consideration which appears to have driven the discussion was an apprehension that because of the effects of the head injury suffered in the road accident the pursuer would constitute a danger to himself and others if he continued to work in an engineering workshop using heavy and potentially dangerous machinery. Mr Duncan said in evidence that he had noticed, when the pursuer was back at work after the road accident but before the industrial accident, that his level of concentration was reduced, although it had not occurred to him before the industrial accident that he could not carry on safely in engineering employment. After the industrial accident, he received a report about it from Mr Stirling, and it seems clear that that report affected Mr Duncan's thinking on the matter. Mr Stirling's evidence was that, from his own observation of the pursuer after his return to work after the road accident, he appeared to be quite capable of resuming work. He felt no reservations or worries before the industrial accident. After that accident, however, he got feedback from the shop floor to the effect that the pursuer's powers of concentration were not what they ought to be; he had not been paying attention at the time of the accident. There was also anecdotal reference to the pursuer's memory being affected - he could not be relied on to be accurate in fetching snacks for his fellow employees. Although there appears to have been no real investigation of the matter, and little, if any, discussion of it with the pursuer, the view appears to have been accepted that the pursuer's concentration and memory had been affected by the road accident to such an extent that he could not safely continue in engineering employment. Mr Stirling said that he received advice to that effect from Mr Duncan. Mr Duncan did not think that he gave such advice, although he accepted that his superior, Mr Johnston, might have expressed that view. According to Mr Duncan matters were left with the pursuer on the basis that he might return to discuss an alternative course with the college in January 1997, but he did not do so. In the event it appears to me that it may not matter for the purposes of this case whether the termination of the pursuer's apprenticeship and college course proceeded on a satisfactory appraisal of the situation, if there is evidence from other sources that the effects of the road accident did indeed render the pursuer unsuitable for engineering employment. I shall return in due course to consider whether there is such evidence.

[10] The only formal employment that the pursuer has undertaken since the industrial accident was with Keebles Bakery in May and June 1998, but he gave that work up because of panic attacks. The work involved (i) working at a machine with a conveyor belt at which products were wrapped and (ii) some delivery work. I shall return, in due course, to the evidence about the panic attacks from which the pursuer is said to suffer.

[11] More recently, the pursuer has been involved in the business which his father conducts. That business involves washing out wheeled refuse bins for householders for a fee. The work is done by means of a power hose from a van with a water reservoir. The pursuer drives the van and calls on customers to collect money from them. He does not undertake the washing operation. The pursuer receives no remuneration for his part in the business, but is supported financially by his father. The pursuer's own evidence was he would not be able to do the work on his own. His father expressed the same view. Although sometimes a help, the pursuer was also at times a hindrance to the work. If he were not his son, he would not have him on the job.

[12] I heard evidence from three expert witnesses bearing on the effect that the pursuer's injuries suffered in the road accident had on his working capacity. Those witnesses were (i) Mr Tom Russell, FRCS, a consultant neurosurgeon, (ii) Mr David Johnston, a consultant neuropsychologist and (iii) Dr Ruth Gillham, also a consultant neuropsychologist. Mr Russell and Mr Johnston were led as witnesses for the pursuer, while Dr Gillham was led as a witness for the defender.

[13] Mr Russell examined the pursuer on two occasions, namely on 12 December 1996 (i.e. some seven months after the road accident and some six weeks after the industrial accident), and on 19 August 1999 (i.e. some three and a quarter years after the road accident). In his report on the earlier of the two examinations (No. 6/3 of process) Mr Russell expressed the view that the presence of the small intracerebral haematomas and the length of the post-traumatic amnesia justified the conclusion that the pursuer had suffered a severe head injury. At that stage the pursuer complained of feeling "different" after the accident, but was unable to articulate the nature of the change in his personality. The account offered at that stage to Mr Russell by the pursuer's father (who accompanied him to the consultation) was that the pursuer was more excitable; on occasion talked nonsense "like a younger child"; occasionally swore at his father, which was said to be unlike him; and exhibited a very poor memory, even for everyday things like making breakfast. At that stage Mr Russell expressed the view that most of the pursuer's complaints might settle in time, with improvement continuing for up to a year and a half after the accident. He thought that the pursuer would probably be able to continue as a trainee engineer, but might find the later parts of the course more difficult. That matter remained uncertain, and Mr Russell recommended psychological assessment.

[14] The pursuer attended the second consultation with Mr Russell alone. In the report of that consultation (No. 6/4 of process) Mr Russell recorded finding the pursuer's recollection of events "extremely vague". He was unclear as to whether he had undergone a change in character. He volunteered that he had a poor memory, and Mr Russell found that obvious. In his opinion, Mr Russell recorded that the long term sequellae of the small intracerebral haematomas were now evident. The narrative of complaints which Mr Russell obtained from the pursuer included reference to panic attacks, and in his opinion he said:

In evidence, Mr Russell reiterated that he found the pursuer's poor memory "very obvious", that the pursuer's problem with memory was "huge", and that it constituted a "severe disability". He was asked a number of questions designed to separate the effect of the memory defect from the effect of the panic attacks. He said that the major problem with work was that the pursuer could not be trusted to remember to do anything. Someone with the pursuer's level of memory deficit was "more or less unemployable". The memory loss was, in Mr Russell's opinion, a direct sequella of the injury sustained in the road accident. That loss rendered the pursuer unemployable, even without the panic attacks.

[15] Mr Johnston has been qualified as a clinical psychologist since 1981. He is currently (a) a Consultant Clinical Psychologist and Head of Neuropsychology at the Astley Ainslie Hospital, Edinburgh, (b) Consultant Paediatric Neuropsychologist and Senior Researcher at the Royal Hospital for Sick Children, Edinburgh, and (c) Honorary Fellow to (i) the Department of Psychology, Edinburgh University, (ii) the Rehabilitation Studies Unit, Edinburgh University and (iii) the Psychology Department, University of East London. He examined the pursuer once, on 20 March 2000. His report is No. 6/19 of process. Mr Johnston records his understanding of the information available from the medical records as being to the effect that the pursuer suffered widespread and very severe brain damage in the road accident; that the CT scan findings reflected not only an area of localised brain damage, but also the likely extent of diffuse injury; that damage to such a deeply placed area as the lentiform nucleus could only occur in the presence of corresponding injury to higher-placed areas of the brain; and that post-traumatic neuropsychological (cognitive and behavioural) impairments would arise from the combination of structural damage and abnormal functioning of the brain. In evidence he added that given the CT scan findings he would expect to find a slowing of information processing, and problems with memory and self control. He expressed the view that the younger the brain, the more vulnerable it is to injury. After an injury of this severity, development would tend to be abnormal or limited. What would be impaired was not the memory of pre-accident events, but the ability to learn new things. It was primarily a matter of memory efficiency. Mr Johnston records that the pursuer complained to him of problems in memory, specifically the consistent recall of information, and of changes in his speech, for example becoming muddled if he tried to speak quickly. He commented that that would lead to embarrassment and a tendency to "shut up". So far as behaviour was concerned, the complaints made by the pursuer to Mr Johnston were of boredom, extreme responses in arguing with his girlfriend, and panic attacks. Mr Johnston commented that those around the pursuer were likely to find the change in him irritating, and express that feeling. The extreme responses in argument reflected a lack of normal self-control. With such damage, strained family relationships were "par for the course". The pursuer would be likely to react badly to having someone supervising him all the time. In effect, I understood Mr Johnston to find all of the pursuer's complaints consistent with the injury he had suffered.

[16] Mr Johnston carried out a range of clinical psychological tests of cognitive function. In doing so, he found the pursuer co-operative. He recorded that the pursuer did not appear to exaggerate his difficulties, and in evidence reiterated with some force that he was able to spot an exaggerator, and the pursuer was not one. His assessment of the pursuer's pre-morbid ability was that he was likely to have been at least within the "average" range (IQ=95, reference range 90-105). The test results are set out in No. 6/21 of process and described in paragraphs 7.4 to 7.8 of No. 6/19 of process. They may be summarised as follows: (i) as regards attention, there was a general and significant slowness in visuo-motor response time; the absence of a significant error rate suggested that better performance was obtained at the expense of speed; there were no apparent problems in focussing attention or keeping track of information; (ii) visual memory was generally above average, but recall declined significantly when dealing with a second competing set of information, suggesting impairment of frontal lobe control functions; (iii) in contrast, verbal memory was severely impaired, with slow inefficient handling of new unstructured information; immediate recall of structured information was at an average level; that suggested particular impairment of verbal memory; (iv) visual perception was severely impaired for left hemisphere processing of simple, meaningful, visual information; reasoning ability was also severely impaired (but this test was perhaps confounded by a complaint of eye tiredness); (v) verbal-comprehension was just within the low average range; verbal fluency was impaired.

[17] In light of those findings, Mr Johnston's conclusions were that the pursuer demonstrated significant impairments of cognition, consistent with the brain damage sustained; that he would not show further recovery, and is at risk of late-stage deterioration when the normal ageing process reacts with the residual brain damage; that his cognitive difficulties are sufficient to prevent him from working at the same level as before the road accident, but that he has some relatively good areas of ability that would allow him to work productively in an appropriate environment, with support. In evidence he confirmed that it was his opinion that the pursuer would not be able to work with machinery or as a tradesman, but that work of a suitable nature would be therapeutic for the pursuer.

[18] Dr Gillham, like Mr Johnston, has been qualified as a clinical psychologist for about nineteen years. She has been a consultant since 1990. She is currently a Consultant Neuropsychologist at the Institute of Neurological Sciences, Southern General Hospital, Glasgow. She is also an Honorary Senior Clinical Lecturer at the University of Glasgow and an Honorary Lecturer at the University of Strathclyde. She saw the pursuer for assessment on 25 February 2000, and her report is No. 7/1 of process. She records that the pursuer was co-operative during testing, but that some of his responses were flippant or tangential. Like others, she found that he had difficulty in giving an account of his symptoms, but attributed that to his limited vocabulary. She records one incident at the end of the interview when the pursuer asked her if she could get for him the telephone number of the receptionist, which she took as an indication of lack of insight and judgement. She agreed with the other expert witnesses in accepting that the length of the pursuer's post-traumatic amnesia indicated that his head injury was severe.

[19] On formal psychometric testing Dr Gillham obtained results that were in some respects indicative of less damage than were Mr Johnston's results. Dr Gillham was inclined to criticise the selection of tests made by Mr Johnston, and to attribute his selection to the fact that, since his examination came so soon after hers, he was constrained in his choice of tests, and forced to use less well-established ones. That point was put in general terms to Mr Johnston, who rejected it, saying that the tests he conducted were the ones which it was his practice to conduct. I do not feel able on the evidence before me to come to a conclusion on the point. Dr Gillham also professed difficulty in understanding some of the points made by Mr Johnston in his report. In general, each psychologist was, in my view, hampered in commenting on the tests conducted by the other by not having had access to the test results of the other before giving evidence. It is, in my view, regrettable that the test results had not been exchanged in advance to enable the witnesses to give proper consideration to the differences between them. Dr Gillham found that in the vocabulary part of a speed and capacity of language-processing test, a test of verbal skills, the pursuer scored in the 5^th centile, and in the speed of comprehension test in the 5^th to 10^th centile. In view of his poor school record and age at the time of the accident, she expressed the view that those scores understated his potential intellectual ability, being low because he had had neither the opportunity not motivation to develop these skills. Another verbal test on which his score was the best of all verbal tests administered was the equivalent of an IQ of 85 (low average range). In a test requiring a degree of problem solving and reasoning ability, his score was in the 86^th centile (high average or above average). Over a battery of memory tests, his scores were consistently at the 25^th centile. In tests of visuo-spatial function, his results were above average. Dr Gillham did not find evidence of frontal lobe damage, although she recognised that a test carried out earlier by a Mr O'Carroll had yielded evidence which she accepted was properly interpreted as evidence of structural brain damage. She also noted the slow performance in the speed and capacity of language-processing test, which she thought likely to be due to his poor reading skills, and his poor performance on a coding task, before concluding that "On balance, I think that he may have some slowing of processing speed".

[20] In her conclusions, Dr Gillam, after recognising the difficulty of assessing the pursuer's pre-morbid ability, said:

[21] In coming to a conclusion on the impact of the injury suffered in the road accident on the pursuer's working capacity, I must take into account all the relevant evidence that is before me. That includes not only the expert evidence that I have summarised in paragraphs [13] to [20], but also the lay evidence of members of his family (his father and his aunt, Mrs Campbell) and others who came in contact with him after the accident (Mr Duncan and Mr Stirling). It is clear that the members of the pursuer's family perceive him as greatly changed by the head injury, and in particular as suffering from a much poorer memory than he had previously. There are, of course, difficulties in assessing that type of evidence. There is no doubt an entirely understandable tendency to attribute anything unsatisfactory in the pursuer's post-accident behaviour to the head injury. In assessing the significance of the anecdotal evidence about the pursuer's inability to run errands reliably, it is no doubt necessary, as Dr Gillham pointed out, to bear in mind that motivational considerations have also to be taken into account. But allowing for such considerations, the fact remains that the evidence of family members can provide in a way that the expert evidence cannot a direct comparison of "before" and "after", and my clear impression is that Mr Young, senior, and Mrs Campbell both genuinely hold the view that the pursuer's memory in particular has been seriously impaired by the head injury he suffered in the road accident. I derive less help from the evidence of Mr Duncan and Mr Stirling. Neither of them formed any real impression of impairment in the interval between the pursuer's return to work and the occurrence of the industrial accident. I am inclined to think Mr Duncan's impression of reduced concentration benefits from hindsight. It was submitted on the defender's behalf that the evidence of those two witnesses showed that after the road accident the pursuer was fit to return to work as an apprentice engineer, but so to conclude would in my view be attributing too much weight to evidence which really came to no more than that they did not notice anything amiss. I found the evidence of Mr Russell clear and impressive. He deferred, appropriately, to the psychologists in relation to the measurement of the impairment that the pursuer has suffered. But I do not consider that for that reason his evidence is of no weight. He is no mere layman in the assessment of the effects of head injury. He is an experienced neurosurgeon whose professional practice brings him regularly into contact with those suffering the effects of head injury. I consider that I am entitled to place material reliance on his assessment (not measurement) of the significance of the effects of the pursuer's head injury. In short, his view was that the pursuer's memory loss constitutes a severe disability that renders the pursuer virtually unemployable.

[22] There remains for consideration the evidence of the two neuropsychologists. Their evidence coincides to some extent, but there are also areas of significant difference. I find myself handicapped in making a critical comparison of their respective views by the fact that they were in turn handicapped by not having had advance access to each other's test results. Dr Gillham was disposed, in the interpretation of her results, to attribute difficulties to a lack of ability antedating the road accident. It seems to me, however, that she may have been taking too much from the pursuer's school reports. No doubt they were not good, but it seems to me that on a fair reading they focused on a lack of motivation rather than a lack of ability. The constant theme was that the pursuer lacked concentration, and could have done much better if he had made the effort. That is to be contrasted with Dr Gillham's own finding on testing that the pursuer concentrated and persevered satisfactorily. It therefore seems to me that the pursuer's lack of concentration at school was probably a matter of motivation rather than capacity. The school reports do not bear out any deficiency in memory or processing speed on the part of the pursuer before the road accident. I do not consider that there is any basis for supposing that in those respects the pursuer was deficient before the accident. When account is taken of the evidence that damage to those functions is to be expected as a result of head injury, and the undisputed fact that the pursuer did suffer severe head injury, it seems to me to be reasonable to conclude on the balance of probabilities that the pursuer's slowness of intellectual functioning and poor memory are the result of the accident. What remains is a dispute as to how badly the pursuer's speed of processing and memory are impaired. It does not seem to me to be essential for me to come to a conclusion expressed in terms of test results. I accept, of course, that each of the psychologists obtained the results reported. The significant issue is the severity of the impact on the pursuer's working capacity. It seems to me that Mr Johnston and Dr Gillham are less far apart on that than they are on the test results as such. Although Dr Gillham suggested that the pursuer might possibly achieve an engineering qualification, I did not understand her in the end to maintain that he was capable of working as a tradesman. She recognised that he would need reminders about task instructions, and expressed the view that he would be able to work in many unskilled or semi-skilled occupations. She contemplated that a period of employment rehabilitation would be required. That seems to me not to differ very materially from Mr Johnston's conclusion that with support in an appropriate environment the pursuer would be capable of productive work relying on his relatively good areas of ability.

[23] I have deliberately left out of account so far the effect of the panic attacks of which the pursuer complains. I have done so because that aspect of the pursuer's complaints raises an additional question of causation that does not otherwise arise. It seems clear that the pursuer has for some time complained of episodes to which the label "panic attacks" has been applied. It does not appear to be disputed that he does experience such episodes, but there is a sharp dispute as to whether it has been proved that they are a consequence of the road accident. The panic attacks have been variously described, but their essential features seem to be a feeling of stress and an overwhelming need to get away from the place or circumstances in which the attack has occurred. The evidence touched upon three possible theories as to the cause of those attacks. One was that they were a reaction to the terrifying and life-threatening experience of the road accident itself. The second was that they were a reaction, of a similar nature, to the frightening and life-threatening experience of the industrial accident, given that it involved a real risk of the pursuer being drawn further into the machine and crushed. The third was that the attacks were a reaction to any stressful situation where the pursuer felt unable to cope by reason of his slowed mental processing ability. There was no support for the first theory. Because of his retrograde amnesia, the pursuer has no mental picture of the road accident, and as I understood the evidence it was thought that that precluded the first theory. Dr Gillham tended to favour the second theory. She expressed the view that the industrial accident was of a sort likely to give rise to such attacks. She drew attention to the fact that panic attacks are not mentioned in the medical records until after the industrial accident (No. 6/1 of process: 25/2/97 "panicky", 21/7/98 "panic attacks"). She suggested that the absence of any clear association between the attacks and the presence of machinery as a trigger was the result of a process of generalisation. Mr Johnston favoured the third theory. He said, differing in this respect from Dr Gillham, that such attacks were a common problem after severe head injury. He said that, leaving aside the label "panic attacks", the phenomenon that the pursuer described was understandable as a consequence of brain damage. He said that the attacks were probably a reaction to the pursuer's inability to do more than one thing at a time. Mr Russell also expressed the view that the panic attacks were probably a result of the head injury.

[24] I am satisfied on the balance of probability that the third theory is the correct explanation of the episodes suffered by the pursuer that have been described as panic attacks. The weight of the evidence is that the attacks are triggered by the pursuer's being in a situation which is likely to be particularly stressful to him because if the effect of the brain injury on his mental processes. The first mention in the medical records relates to his being in a group of people he did not know. Mention was also made of situations where someone was shouting at him. There was no mention of such episodes being triggered by proximity to machinery, except conceivably his father's mention of an attack coming on when he was mixing chocolate when working at the bakery. While I accept Dr Gillham's evidence about a process of generalisation, one would expect, if that were the process that was operating, to find early examples of episodes triggered by proximity to machinery, followed by gradual generalisation. There was no evidence of that sort. The pursuer did speak of being afraid of machinery, but not in the context of his panic attacks. The lapse of time before episodes were first reported to a doctor might be thought to militate against the third theory, but both the pursuer and his father put the first occurrence of such an attack before the industrial accident. Mr Young said one first occurred some five or six weeks after the accident. I accept Mr Johnston's view that such attacks are a common problem after brain injury, supported as it is by Mr Russell's view of probable causation, in preference to Dr Gillham's view that such a consequence is rare. On the whole matter I take the view that it is more probable than not that the pursuer's panic attacks are part of the consequences of his head injury.

[25] As I have already recorded in paragraph [3], it is a matter of agreement between the parties that the pursuer suffered a loss of earnings while he was off work in the period from 12 May 1996 to August 1996 which amounted to £1106, inclusive of interest to date. What remains to be determined is what further loss of earnings, if any, he suffered as a result of the road accident in the period from 29 October 1996 (the date of the industrial accident) to date. For the purpose of that determination the following further matters are also agreed in the following paragraphs of the Joint Minute:

It is not said in the Joint Minute whether the first sum mentioned in paragraph (6)(ii) is gross or net, but I shall assume that it is net.

[26] For the pursuer, Mr Hajducki's submission was that the industrial accident simply brought to light what had been the case but had not been appreciated, namely that as a result of the brain injury suffered in the road accident the pursuer remained unfit for work. On that basis he submitted that there was no need to make allowance, in calculating the loss of earnings suffered by the pursuer as a result of the road accident, for a period of incapacity attributable to the hand injury suffered in the industrial accident. That injury had simply been superimposed on a period when the pursuer was truly unfit for work because of the sequellae of his brain injury. He therefore submitted that I should assess damages under this head at the sum mentioned in paragraph 6(ii) of the Joint Minute, less the sum mentioned in paragraph 6(iii).

[27] For the defender, Mr Bolland's primary submission was that the pursuer had failed to establish any loss of earnings in respect of this period. The reasoning advanced to support that position was that the pursuer had been able to return to work, and had performed his duties satisfactorily until the industrial accident occurred. Neither Mr Stirling nor Mr Duncan had thought that he was unfit. It was the industrial accident that had caused the pursuer to go off work again at that stage, and it was the panic attacks which he had suffered thereafter that were the reason for his being unable to resume employment. Mr Bolland's alternative submission was that, if the pursuer was held to be unfit for work as an engineering apprentice or subsequently tradesman, he was nevertheless fit for a variety of unskilled or semi-skilled jobs, and that allowance should be made for that in calculating the loss attributable to the accident.

[28] I am satisfied that it is appropriate for me to hold on the evidence which I have discussed that the effect of the brain injury which the pursuer suffered in the road accident was to render him unfit for work as an apprentice engineer. I recognise that there was evidence that in the period between August and October 1996 it was not obvious that he was unfit, and that at a certain level he performed satisfactorily in that period. I take the view, however, that that reflects a failure to detect the effect of the brain damage at that stage, rather than genuine capacity for the work. As I have indicated, I doubt whether Mr Stirling and Mr Duncan had before them material to justify them in the conclusion that the pursuer could not safely be allowed to continue with an engineering apprenticeship. I am satisfied, however, that the medical evidence which I have heard retrospectively justifies the view which they reached. I am therefore of opinion that it is right to regard the pursuer as having been disabled from working as an engineering apprentice by the effects of his head injury. In light of the view that I have taken as to the causation of the pursuer's panic attacks, they do not afford a basis for coming to a different conclusion as to what caused his unfitness for such work. I am therefore of opinion that the pursuer's brain injury is the operative cause of his having had to leave his apprenticeship and the employment of Lothian Engineering. It was therefore the cause of his not earning the sum that he would have earned if he had continued in their employment to the present date. It is clearly necessary to set off against that sum the small sum that the pursuer earned with Keebles Bakery. The question then arises whether a further sum should be set off against the loss, on the basis that the pursuer has been fit for some form of work, and would have obtained it if he had made any effort to do so. Certainly, on the view which I have taken of the medical evidence the view might be taken that the pursuer has for some time been fit for some form of employment if work can be found which enables him to use those mental functions at which he is best while at the same time accommodating his slowness and defective memory. It seems to me that ideally the question of rehabilitation and assessment for suitable work might have been addressed in the period which I am now considering. On balance, however, it seems to me that given (i) the pursuer's attempt to return to work by taking employment at the bakery, and (ii) the limited success of his work in his father's business, it would not be reasonable to hold that in the period to date the pursuer has failed to mitigate his loss by seeking and obtaining work which accommodates his disability.

[29] I therefore conclude that the pursuer has established that in the period from 29 October 1996 to date he suffered a loss of earnings of £32,100 (i.e. the sum of £32,600 mentioned in paragraph (6)(ii) of the Joint Minute, less the sum of £500 mentioned in paragraph (6)(iii)). The figure of interest mentioned in paragraph (6)(ii) requires to be adjusted marginally to take account of the deduction of £500 from the principal. I propose to round the interest down to £4044.

[30] Paragraph (7) of the Joint Minute expresses agreement on several of the components which would go into the calculation of future loss of earnings if an award of damages under that head were appropriate. The agreed matters are:

I was informed that the agreed multiplier was taken from Table 13 of the Ogden Tables. The effect of applying the agreed discount factor to the agreed multiplier is to yield a net multiplier of 23.06.

[31] I have no difficulty in finding that but for the accident the pursuer would probably have completed his college course and his apprenticeship, and would have qualified as a tradesman mechanical engineer. That was the evidence of Mr Duncan and Mr Stirling, and there was no evidence to the contrary.

[32] It is much more difficult to come to a conclusion about what work the pursuer is likely to be able to obtain. It was agreed in terms of paragraph (12) of the Joint Minute that a report by an employment consultant, Keith Carter (No. 6/20 of process) should be treated as Mr Carter's evidence. His conclusions, however, depend on the view taken of the medical evidence. He proceeded on the hypothesis that it would be established that the pursuer would be unemployable, except in therapeutic or sheltered employment. That is not my conclusion on the medical evidence. While my conclusion as to the degree to which the pursuer's working capacity is limited by the effects of his head injury is influenced by Mr Russell's evidence, I do not go so far as to accept his pessimistic view that the pursuer is virtually unemployable. I proceed on the basis that there are some forms of unskilled and semi-skilled work that would be open to the pursuer. I take the view that to have realistic prospects of obtaining such work, the pursuer would have to have substantial rehabilitative help and help in identifying and seeking out suitable employment. I do not, however, think that the category of employment mentioned in paragraph (7)(iii) of the Joint Minute is the sort of employment that the pursuer is most likely to be able to obtain. It seems to me that ordinary employment, albeit of restricted categories and carefully selected, rather than sheltered employment is the sort of employment that the pursuer should aim for. I recognise that his prospects of obtaining and retaining such employment are uncertain, and I take the view that the appropriate way of reflecting that uncertainty is to proceed on the basis that the pursuer's employment is likely to be intermittent. There is no direct material before me identifying what the pursuer is likely to be able to earn in such employment. I propose to proceed on the basis that his earnings are unlikely to exceed by much the national minimum wage. I therefore propose to proceed on the basis that, when working, the pursuer's earnings are likely to be no more than of the order of £7000 net a year.

[33] Mr Hajducki's submission was that in calculating future loss of earnings I should first apply the agreed multiplier (23.06) to the agreed annual amount of tradesman's wages (£15,000), then deduct the likely earnings (which he submitted should be taken to be the sheltered employment earnings agreed in paragraph (7)(iii) of the Joint Minute) multiplied by a reduced multiplier (he suggested one half of the multiplier agreed in paragraph (7)(i)), to reflect the uncertainty of the pursuer's employment prospects. In principal I agree with that approach, although I do not agree that the deduction should be based on earnings of £4000 a year. As I have indicated I consider that the appropriate multiplicand is £7000. The multiplier in respect of likely earnings, modified to allow for the uncertainties about the pursuer's obtaining and retaining employment, should in my view be taken as 12. The first part of my calculation is therefore to multiply £15,000 by 23, yielding £345,000. The second part is to multiply £7000 by 12, yielding £84,000. Subtracting the latter figure from the former brings out an assessment of loss of future earnings of £261,000.

[34] Mr Hajducki's submission was that the pursuer continued to require support from his father, and that accordingly an award should be made under section 8 of the Administration of Justice Act 1982. He suggested that the multiplicand should be an annual figure of between £1000 and £2000, and that the multiplier (derived from the Ogden Tables and based on the pursuer's father's life) should be 22.66. Mr Bolland suggested that a more appropriate multiplicand would be £500, and that the multiplier should be reduced from the one derived from the Ogden Tables.

[35] In my view there is very scanty evidence in support of this head of claim. I accept that the pursuer does at present receive non-financial (as well as financial) support from his father which can properly be regarded as constituting necessary services within the meaning of section 8. I am not, however, persuaded that the performance of those services, although no doubt irksome, is something that properly attracts substantial remuneration. I am of opinion that the annual amount suggested by Mr Hajducki is more than is justified. I am content to adopt the annual figure suggested by Mr Bolland, which does not, in my view, understate the value of the services which Mr Young renders. In principle it would, in my view, be appropriate to apply a multiplier based on Mr Young's life, if the appropriate view were that those services would continue to be required for as long as Mr Young was able to provide them. I am not satisfied, however, that it is appropriate to conclude that the pursuer will require those services indefinitely. I would expect the pursuer's reliance on his father to diminish with the passage of time, particularly if and when he succeeds in finding appropriate employment. Taking a very broad view of the matter, which is all that I can do on the limited material available, I conclude that I should apply to the annual figure of £500 a multiplier of ten, bringing out a total under this head of £5000.

[36] In the result therefore I assess the value of the pursuer's claim in respect of the personal injuries that he suffered in the road accident as follows:

[37] I shall accordingly: