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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 7
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PD1051/04
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OPINION OF LORD MACPHAIL
in the cause
GRAEME CARLING
Pursuer;
against
W P BRUCE LIMITED
Defenders:
___________
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Pursuer: Ivey, Q.C.; Lindsays, W.S.
Defenders: Peoples, Q.C.; Brechin Tindal Oatts
20 January 2006
[1] This
is an application for an interim payment of damages in terms of rule 43.11 of
the Rules of the Court of Session 1994 as substituted and amended. The pursuer was injured in a road accident on 25 September 2002 when the car he was
driving collided with a tractor driven by an employee of the defenders. The defenders admit liability. The pursuer sues for damages of £900,000. He now seeks an interim payment of £300,000. The proof commenced on 8 November 2005. I heard evidence on 8, 9, 10 and 11 November
2005, including the evidence of the pursuer. On 11 November
2005 the proof was adjourned part-heard. The continued proof has been set down for
eight days from 25 April to 5 May 2006.
The motion was enrolled on 4 January 2006. It was opposed by the defenders on two
grounds: (1) that the motion was incompetent as it sought interim damages while
the proof was part-heard; and (2) that the sum sought was excessive.
[2] In
order to determine these issues it is necessary to examine the terms of rule
43.11, so far as material. The rule
provides:
"(1) A pursuer may, at any time after defences have been lodged,
apply by motion for an order for interim payment of damages to him by the
defender ...
(3) On a motion
under paragraph (1), the court may, if satisfied that -
(a) the defender ... has admitted liability to the pursuer in the
action; or
(b) if the action proceeded to proof, the pursuer would succeed
in the action on the question of liability without any substantial finding of
contributory negligence on his part ... and would obtain decree for damages
against any defender,
ordain that defender to make an interim payment to the
pursuer of such amount as it thinks fit, not exceeding a reasonable proportion
of the damages which, in the opinion of the court, are likely to be recovered
by the pursuer."
[3] Counsel
for the defenders submitted that the motion was incompetent. A fair
construction of rule 43.11 suggested that the rule contemplated that the motion
would be enrolled at the pre-proof stage, either where defences had been lodged
and liability had been admitted, or where liability had not been admitted and
the court had to consider what would happen if the action proceeded to proof. There was no reported case in which a motion
had been made once the proof had commenced. If a motion were competent at that stage, the
court would have to form a provisional view, while hearing the evidence, as to
the amount of damages likely to be recovered. That was unattractive in principle. In the present case, there were conflicts of
medical opinion, differing views had been expressed as to the prognosis, and
there was an issue as to whether videos of the pursuer in various situations indicated
that he had been exaggerating the gravity of his complaints. The latter issue had already been raised by
the defenders in their cross-examination of the pursuer. Even if the motion were competent, it would
not be appropriate to entertain it in the circumstances of this case.
[4] Counsel
for the pursuer argued that the rule did not provide that a motion for interim
damages was competent only before the commencement of the proof. If it had been intended that no motion could
be made thereafter, it would have been easy so to provide.
[5] In
my opinion the motion is competent. Rule
43.11(1) provides that a motion may be enrolled "at any time after defences
have been lodged." The rule does not
anywhere prescribe a time after which a motion may not be enrolled. The present case falls under rule 43.11(3)(a), since this is a case where the defender has admitted
liability. It is therefore unnecessary
to consider the opening words of rule 43.11(3)(b): "if
the action proceeded to proof." Read as
a whole, rule 43.11(3)(b) appears to require the court
to envisage a situation in which the action proceeds to final judgment, and not
to forbid the enrolment of a motion after the commencement of the proof in a
case in which liability has not been admitted. Be that as it may, rule 43.11(3)(b) does not apply to the present case.
[6] I
therefore consider that I may exercise the discretion conferred by the rule to
order payment of an amount "not exceeding a reasonable proportion of the
damages which, in the opinion of the court, are likely to be recovered by the
pursuer." I begin by noting that certain
figures have been agreed by joint minute. The parties have so agreed that if the pursuer
had remained in his former job, he would have received £156,000 net in such
employment in respect of his combined salary, pension payments, discretionary
bonuses and car and fuel benefits, inclusive of interest, from the date of the
accident to the date of the commencement of the proof; that if he had remained
in employment he would currently be receiving £51,410 net per annum in respect
of his combined salary, pension payments, discretionary bonuses and car and
fuel benefits; and that the value of his claim under section 8 of the Administration of Justice Act 1982
in respect of past and future care (inclusive of interest) is £25,000. Counsel advised me that the defenders'
insurers had already made voluntary payments to the pursuer amounting to
£116,500.
[7] While
the parties are in agreement as to the quantum of the pursuer's claims for past
loss of earnings and past and future services, they are at variance as to the
amounts likely to be awarded in name of future loss of earnings and in name of
solatium. Counsel for the pursuer
addressed me carefully and in detail on the terms of the medical reports lodged
in process, and invited me to reach the view that the pursuer's total claim was
worth in excess of £650,000. Counsel for
the defenders submitted that the pursuer's medical witnesses still had to be
cross-examined on the contents of the videos and the issue of whether the
pursuer was exaggerating his symptoms. In my opinion it is clear from the reports and
from the evidence led so far from the pursuer and members of his family that
the condition he presents is unusual. I find it difficult to say any more with
confidence at this stage. I have
considered the parties' competing submissions with care and I have concluded
that without having had the advantage of hearing the oral evidence of the
medical witnesses for both sides, I am unable to reach even a provisional
conclusion as to the amount of the damages which are likely to be recovered by
the pursuer. While I consider that the
motion is competent, in the circumstances of this case I find it impossible to
make any useful prediction of
my own likely award when the court is in the midst of hearing the
evidence and issues of credibility remain unresolved.
[8] It
is, however, clear that the damages likely to be recovered will include the
agreed sums in name of past loss of earnings (£156,000) and past and future
services (£25,000), a total of £181,000, less the amount of the sums already
voluntarily paid (£116,500), that is, £64,500. The latter sum cannot exceed a reasonable
proportion of whatever damages might ultimately be awarded. I shall therefore
order the defenders to make an interim payment to the pursuer of £64,500.
