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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 67
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A2931/02
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OPINION OF LORD MACPHAIL
in the cause
DAVID FLEMING
MORRISON
Pursuer;
against
WHITEINCH
DEMOLITION LIMITED
Defenders:
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Pursuer:
Ennis; Drummond Miller, W.S.
Defenders:
Shand, Q.C.; Simpson & Marwick, W.S.
21 February 2006
Introduction
[1] This is an action of damages for
personal injuries which was settled by joint minute. On 21 February 2006 I
heard counsel on a motion by the pursuer to interpone authority to the joint
minute, certify certain persons as skilled witnesses and grant an additional
fee in terms of rule 42.14(a), (b) and (e) of the Rules of the Court of Session
1994. The defenders opposed the granting of an additional fee and the
certification of one of the named persons. The pursuer did not insist on the
certification of that person. I interponed authority to the joint minute and
granted decree of absolvitor, found the defenders liable to the pursuer in the
expenses of process and certified the other named persons as skilled witnesses
for the pursuer, but I refused to grant an additional fee. The pursuer has now
reclaimed.
The parties' averments
[2] The pursuer, who is now 48 years of age,
was injured in the course of his employment with the defenders as a labourer on
10 May 2002. He was working
near the large beam section of a crane which toppled over on to him and caused
many injuries. The sum sued for was г500,000. The defenders admitted liability
on record. The parties' extensive averments relative to quantum may be very
briefly summarised as follows. The pursuer averred that he had a fractured
pelvis, a shattered sacrum, a fractured rib, a ruptured bladder and a deep
laceration to his perineum. He was in hospital until 7 June 2000 and again from 29 November to 4 December 2000. He required
considerable medical and nursing care at home. He has a reduced range of
movement in both hips and continues to suffer pain and discomfort in both hips.
In addition, he averred that following the accident he became depressed,
irritable, bad-tempered and difficult, and was diagnosed as having
post-traumatic stress disorder and major depressive disorder. His physical disabilities
and depression mean that he is unlikely to obtain employment in the future. He
required many services from his family. He stated claims for wage loss,
solatium and damages in respect of services in terms of sections 8 and 9 of the
Administration of Justice Act 1982.
[3] The defenders averred that the pursuer
had a long pre-accident history of back pain and persistent somatoform pain
disorder. They specified his pre-accident complaints in detail. They averred
that he had made a good recovery from his injuries. Any
"psychiatric/psychological symptoms" attributable to the accident significantly
diminished within a short period of time. He was regularly out of work before
the accident.
Submissions for the pursuer
[4] At the hearing of the motion, counsel
for the pursuer stated that the pursuer had left school at the age of 16 and
had no formal qualifications. He could not be retrained for any suitable
occupation. Counsel emphasised the severity of his injuries. In 2004 a tender
had been lodged but had been withdrawn, apparently because it had been lodged
without instructions from the defenders' insurers. A further tender had been
lodged a week before the diet of proof.
[5] Addressing me on each of the heads under
which an additional fee was claimed, counsel explained that as to head (a),
"the complexity of the cause and the number, difficulty or novelty of the
questions raised", the issue of complexity was centred on the medical
consequences of the accident. Counsel pointed to the extensiveness and severity
of the pursuer's skeletal and internal injuries. The pursuer's averments did
not do justice to the traumatic nature of the injuries in this case: it was not
a run-of-the-mill crushing injury. There was a question whether he would need
one or two hip replacements in the future. His mobility had been impaired by
the severity of his injuries. In general, such complex injuries were not
exceptional. But the defenders claimed that the consequences of the accident
were not as severe as the pursuer claimed them to be: the defenders said that
other factors came into play and that the pursuer's very extensive medical
records showed a range of complaints which impacted on his mobility and his
ability to work. The pursuer, on the other hand, said that it was his physical
injuries alone which prevented him from working. The defenders' position had to
be examined. The pursuer had significant psychological problems: post-traumatic
stress disorder, depressive illness and loss of self-esteem. It had been
difficult to investigate these because of the pursuer's low mood and his
reluctance to engage with the experts. There was a range of complex and
difficult issues. It was necessary to work out how each medical condition could
be related to the accident. Also, the pursuer had suffered a heart attack and a
small stroke. He was in chronic pain. The causation and inter-relation of each
symptom had to be looked at. This had an effect on the question of future wage
loss. The pursuer had had "a job for life" with the defenders. His claim for
future wage loss was very substantial. If the defenders were correct in saying
that his symptoms were not due to the accident and that he would not have
worked beyond the age of 50 anyway, the damages for future wage loss would be
small. A range of medical experts had been involved: psychiatrists,
psychologists and a pain consultant.
[6] As to head (b), "the skill, time and
labour, and specialised knowledge required, of the solicitor, or the
exceptional urgency of the steps taken by him," there was no claim on the
ground of exceptional urgency. However, the skill, time, labour and specialised
knowledge required were beyond the norm. The pursuer lived in Greenock
and had very limited mobility. All meetings with him had had to be in Greenock,
and the Edinburgh agents had had to
travel there. The pursuer also had a very limited ability to understand the
complex issues in the case. That condition was made worse by his post-traumatic
stress disorder, his depression and his medication. In March 2003 he had
attempted suicide by overdosing on his medication. A high level of skill was
required in acting on behalf of and managing a client who was very depressed
and not very intelligent, and who continued to be a suicide risk. Instructions
had to be taken when he was very anxious about the case and did not want to
engage with anyone. This increased the time and labour required. The pursuer's
wife had played a considerable role in maintaining day-to-day contact but she
herself had had to go to hospital because she had attacks of asthma.
[7] As to head (e), "the importance of the
cause or the subject-matter to the client," he was a relatively young man from
whom much had been taken. He lived at present in an unsuitable local authority
house which had been little adapted for his needs. He would need finance to
adapt a house and to get out and about. The damages would also facilitate his
paying for a pain management programme at an establishment in Liverpool
which dealt with people with chronic pain. This prospect had arisen late in the
day. The pursuer could potentially recover some quality of life. The motion
should be granted. Alternatively, there should be a remit to the Auditor.
Submissions for the defenders
[8] The grounds of opposition to the motion
were stated as follows in Form 23.4:
"This is an
action in which liability was admitted from an early stage. The only issues
arising were essentially medical, or flowed from the medical position. Those
issues were dealt with in the normal way by the instruction of the appropriate
expert. There are not circumstances arising in the present case warranting the
award of an additional fee under heads (a), (b) or (e) of Rule 42.14."
[9] Counsel for the defenders moved me to
refuse the motion. Alternatively, if I considered that it might be appropriate
to allow an additional fee, the question should be remitted to the Auditor for
determination. Counsel submitted that the considerations said to favour the
allowance of an additional fee must be detailed and adequately vouched. The
Court had not been referred to any medical reports or records. It had not been
said that there had been any difficulty in finding medical experts. The pursuer
must point to concrete factors in support of the various heads founded on.
Counsel cited Zyszkiewicz v University of Glasgow 1995 SCLR 1124. On the course of remitting to the Auditor counsel
cited Kennedy v British Coal Corporation 1997 SLT 151 and Young v Blue Star Line Ltd 1998
SLT 109.
[10] Turning to head (a), counsel pointed out
that liability had been admitted from an early stage. The principal issue was
the extent to which the physical injuries sustained by the pursuer caused him
greater disability than he had suffered before the accident. That was
essentially a medical issue, which had been dealt with in the normal way by
instructing orthopaedic reports which dealt with his ability to resume his
pre-accident work. The pursuer had had a poor pre-accident employment history,
and the issue of his future wage loss was not complex. There was a dispute
between the psychiatrists as to whether he would have continued to work but for
the accident, but that was not unusual. As to his claim for services, a care
costs expert had been instructed in the normal way. His claim in relation to
loss of pension was not large and an actuary had been instructed. All these
investigations were not out of the ordinary for a case of this type.
[11] As to head (b), no degree of skill beyond
the norm had been identified. There had been no detailed, vouched submissions.
This was a factual issue which could not be considered. Alternatively, there
should be a remit to the Auditor.
[12] As to head (e), the prospect of attendance
at a pain management programme was news to the defenders. The records showed
that the pursuer had been non-compliant with psychiatric treatment. There was a
factual issue as to whether the pursuer would be likely to undergo such
treatment.
[13] Counsel advised me that the case had
settled for г200,000, and observed that the pursuer might have done well out of
the settlement. He had not worked from 1993 to 2000, and he would not have had
"a job for life" with the defenders. His problems had been primarily
psychiatric, and he had had a substantial pre-accident psychiatric history. His
son received a carer's allowance. The motion should be refused.
Decision
[14] In reaching my decision I considered the
case as a whole and each of the factors founded on by the pursuer. I took into
account, first, the fact that the defenders had admitted liability at an early
stage. That in itself had reduced the burden on the pursuer's solicitors.
Secondly, the sum sued for and the figure at which the case had settled were
not, in my view, unusual in the Court of Session.
[15] Thirdly, as to head (a), the medical consequences
of the accident, while they were not only serious but also both physical and
psychiatric in nature, did not appear to me to be so complex as to take the
case out of the range of personal injuries actions normally dealt with in this
Court. There was no suggestion that it had been difficult to find appropriate
medical experts and obtain advice from them. Differences between medical
experts instructed on either side are not unusual. Nor is it unusual for such
differences to be relevant to the calculation of future wage loss.
[16] Fourthly, as to head (b), the fact that
the solicitors had had to deal with a rather difficult client who could only be
seen in Greenock no doubt made demands on their skill, time and labour but not,
in my judgment, to such an extent as to justify the allowance of an additional
fee.
[17] Finally, as to head (e), I accepted
without hesitation that the case must be important to the pursuer; but the
question of how the damages should be applied did not appear to me to be more anxious
than in other cases where a substantial award is made to a disabled pursuer.
[18] Having reviewed the whole matter, I
concluded that the case was not so different from other substantial actions of
damages for personal injuries brought in this Court as to justify the allowance
of an additional fee. I therefore refused that part of the motion.
