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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v. Hastie [2002] ScotCS 71 (19th March, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/71.html Cite as: [2002] ScotCS 71 |
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Smith v. Hastie [2002] ScotCS 71 (19th March, 2002)
OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD MENZIES in the cause CARMEL SMITH Pursuer; against MARK HASTIE Defender:
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Pursuer: Bennett; Henderson Boyd Jackson, W.S.;
Defender: Anderson, Q.C., P. Milligan; Simpson & Marwick; W.S.
19 March 2002
Evidence with regard to Liability
(1) The pursuer and defender were both probably driving their vehicles at between 10mph and 15mph approaching the locus;
(2) the impact speed of the vehicles was probably between 0 and 5mph (0 and 10mph relative speed); and
(3) the defender had his vehicle completely out of position as he negotiated the corner and this caused the accident. This last conclusion was based on the information which he had about the position of the Volkswagen Sharan and the police information as to the damage to the cars.
Decision on Liability
Damages
(a) Solatium
(b) Loss of Earnings
"the unsatisfactory conclusion to which I have felt myself driven is that, while the probability is that some loss of profitability resulted from the plaintiff's accident it is quite impossible to quantify it. Nevertheless I regard it as improbable that the loss would be anything like in the region of £10,500".
He went on to state that:
"doing the best I can, and fully realising that I too am rendering myself to be attacked for simply 'plucking a figure from the air', I think the proper compensation under this head is £2,500".
Mr Anderson submitted that Mr Riddell's evidence was flawed in its general methodology, and in particular it was flawed with regard to its assumptions (a) that overheads would have remained fairly constant, (b) that turnover would increase in line with inflation, and (c) that wages would remain as a constant percentage of turnover, which would remain at 23.5%. He submitted that Mr McDonald's approach was preferable, and on that approach it was simply not possible to reach a concluded view on the evidence as to the amount (if any) of the pursuer's loss before the sale of The Pancake Place. He accepted that there must be some loss between the date of the sale of that business in April 2000, and the start up of Areadate Ltd in November 2000. For this period he adopted Mr McDonald's reasoning that the pursuer's average net annual earnings from The Pancake Place amounted to about £15,862 after tax and national insurance, so for the period of seven months between the end of April and the end of November 2000 her loss was £10,574. The same approach should, in his submission, be adopted for the period following the start up of Areadate Ltd in November 2000. If I was minded to make an award for the first two years of that business, this would result in a figure of £31,724, and if I was minded to make an award covering three years this would amount to £47,586. In summary, his submission was that it may not be possible to make any award which could be justified by means of a precise calculation, but that the court should attempt to achieve justice by making a "lump sum" award rather in the same way as was done in Ashcroft v Curtin (supra).
(c) Personal Services
CONCLUSION