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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 186
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A283/06
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OPINION OF LADY
DORRIAN
in the cause
ROBERTA TAYLOR
Pursuer;
against
KEVIN SANDS and
CO-OPERATIVE
INSURANCE LIMITED
Defenders:
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Pursuer:
Maguire Q.C. et Henderson; Digby Brown
Defenders: R Milligan; DLA Piper Scotland LLP (Party Minuters)
5 December 2006
[1] This
case came before me on a motion by the pursuer as guardian of her daughter Clare
who was seriously injured in a road traffic accident on 4 February 2002.
Liability is admitted. The motion
was for interim damages of £250,000. A
previous voluntary payment of £250,000 was made by the defenders on 11 May 2004.
[2] In
the accident Clare sustained a severe acquired brain injury with diffuse anoxal damage and frontal contusions. As a result there is said to be major
impairment to her cognitive functioning.
Her communication is severely impaired, she suffers
from global and profound acquired dementia and profound retroamnesia. It is unlikely there will be any significant
improvement. She is unable to return to
any form of gainful employment.
[3] Clare
currently lives in a property in East Lothian purchased
by her prior to the accident, where she has a 24-hour care package, organised
and managed by the pursuer. With the
voluntary payment, the pursuer was able to purchase a nearby property in which
she resides. It is averred that Clare
attends weekly art therapy and physiotherapy and fortnightly reflexology
sessions at a total cost of £64 per week.
East Lothian Council currently fund a community care package and day
services for Clare. The pursuer avers
that the cost of these has recently increased, but payments from the Council
have remained static and there is therefore a shortfall in what requires to be
paid. The amount of that shortfall is
not averred but at the bar counsel stated that it amounts to £800 per month. This shortfall and the weekly payments are
met by the pursuer. It is averred that Clare
will need 24-hour care for the rest of her life, that the current regime meets
only her basic care needs, and that it will be necessary to employ a care
manager.
[4] The
situation in this case is complicated by the fact that Clare was previously
involved in a road traffic accident on 26 July 2000 in which she sustained what
the pursuer avers was a moderate brain injury, causing her to suffer minor
cognitive difficulties. She avers that
at the time of the present action, Clare was still in the recuperative phase of
her earlier injury. At the time of the
earlier accident, she was setting up a recruitment consultancy business.
[5] A
further complicating factor is that in response to averments from the defender,
the pursuer admits that in 1999 and 2000 Clare suffered from work related
stress, which prevented her from working, having suffered panic attacks and agoraphobia
in 1997.
[6] The
pursuer's position is that but for the present accident, it is likely that she
would have recovered from her earlier head injury, would have been independent
for all activities of daily living and enjoying a relatively normal social
life. All her current disabilities are
attributed to the injuries sustained.
[7] The
defenders aver that the earlier head injury was a severe one and that as a
result of her previous physical and psychological history, her employment
prospects were limited. They further
aver that a care regime in her own home is inappropriate and that the most
reasonable and appropriate option for her is residential accommodation. They aver that by statutory provision the
local authority is required to provide such residential accommodation, and that,
as a result of other legislative provisions, any damages payable will be placed
in trust to prevent recoupment of the costs of such
residential accommodation. The defenders
therefore advance an argument that the claim for future residential
accommodation is irrelevant.
[8] In
advancing the motion, counsel for the pursuer indicated that there was no
dispute over the general approach to be taken to a motion under Rule of Court
43.9. That rule gave the Court a wide
discretion. The approach should be
conservative and moderate but was not restricted to loss to date. It was not necessary for a pursuer to
establish hardship although that can be taken into account. The damages to be awarded were those not
exceeding a reasonable proportion of the likely award, a sum which in previous
cases has varied between fifty and seventy per cent.
[9] Miss
McGuire referred to the medical reports from Professor Whittle (6/4) and Dr
Carson (6/5) for vouching of (i) the severity of Clare's
condition; (ii) the need for 24-hour care; and (iii) the claim that the current
level of disability results from the accident on 4 February 2002 and not the previous one. She referred to Dr Carson's comments
that, given the severity of the injury caused on 4 February 2002, her previous history, the previous
accident and its effect on her employment prospects were irrelevant. He states that
"previous
acquired brain injuries do worsen the cognitive outcome of future acquired
brain injury, but, given the nature and extent of her coma in the second
accident, this is irrelevant and all her current disability is wholly
attributable to the second accident".
[10] Miss McGuire then referred to a schedule of damages for the
pursuer which brought out the sum of £4,107,664. She recognised that a substantial element of
this was for future care, but submitted that, even if the claim might be said
only to be worth a million pounds, the sum sought, even taking into account the
voluntary payment, remained a reasonable proportion of the damages likely to be
awarded.
[11] In opposing the motion, Mr Milligan submitted that the motion
was premature as the Record does not close for nearly 2 months and parties are
still adjusting. Dr Carson's reference
to the irrelevance of the previous accident may be appropriate for treatment
purposes, but for the purposes of litigation, the question was whether she
would have been prejudiced by the previous accident, to which the answer is
clearly yes.
[12] In addition, Mr Milligan pointed out that the defenders'
argument is that Clare should be in residential care and they have set out what
he described as a complicated legal argument to the effect that the local
authority would be required to provide suitable and adequate residential
accommodation for Clare, in which case the cost would not be met by the
defenders. Reference was made to Crookdale v Drury
[2004] EWCA 1370 at paragraph 41.
[13] In relation to the schedule of damages he submitted that it was
not on any view a moderate approach.
From the assessment of solatium at £200,000
onwards, the pleadings in respect of wage loss are sketchy and would at best,
given her history, justify a lump sum.
He submitted that the future care figures were difficult to understand
but in any event, on the defenders' argument all future care elements including
case management and so on, would be removed from the
equation. There is no basis in the
pleadings for the claim of £151,268 for "social activities". He pointed out that all elements of future
care were based on a full life expectancy, whereas the defenders averred that
life expectancy had been reduced by about 9 years. He submitted that it was not possible at this
stage to say that the pursuer would be awarded more than £500,000, in which
case the sum paid already represents a reasonable proportion.
[14] It is clear that there are major areas of dispute between the
parties in relation to quantum. The
whole issue of her employment prospects is complicated by her history of being
unable to work for 2 years for psychiatric reasons, and by the effect of the
previous accident. The effects of that
accident may impinge on other aspects of the claim also. Although Professor Whittle indicated that
life expectancy was not foreshortened, Dr Carson lent support for the
defenders' contention by noting that available evidence suggests a reduction by
about 10 years. Moreover the nature of
the appropriate care for Clare, and the funding of it, is a very significant
area of dispute capable of having an enormous impact on her claim. On the schedule for the pursuer, the sums
representing solatium, past wage loss, past care and
past therapies amounts to a total of £263,892.
The sum included for future care is £2,397,218 with an additional
£332,789 being included for day services and £648,968 in respect of case management. These sums alone amount to £3,378,975. Also capable of being affected by the
defenders' argument in respect of the appropriate form of care are the figures
for future therapies, additional lighting, transport and home maintenance costs
and so on. These
amount to an additional £349,063.
The total sum capable of being affected by the defenders' primary argument
is therefore £3,728,038. Past wage loss
and future wage loss, both items significantly in dispute, are estimated at the
sums of £45,147 and £164,800 respectively.
[15] Taking account of the nature and extent of the dispute on all
these matters I do not think it can be said, as submitted for the pursuer, that
on any view the claim was bound to be worth even a million pounds. If the defenders were successful in their
arguments the claim might well be worth no more than £600,000 or £700,000. In those circumstances, the sum sought by way
of interim damages would represent an excessive proportion of the award. I do, however, consider that a small
additional sum is justified and I propose to make an award of interim damages
of £50,000.
[16] For the sake of completeness, I record that in addition to the
items mentioned, counsel referred to Lennox
v Bishop [2005] SCLR 1107; D's Parent and Guardian v Argyll and Clyde Acute Hospitals NHS Trust
[2003] SLT 511; Nisbet v Marley
Roof Tiles Co Ltd [1988] SC 29; McNicol v Buko Ltd [1986] SLT 12; The Judicial Studies Board Guidelines and Productions 6/16, 6/17,
6/20 and 6/21.
