Mitchell v. Allianz Cornhill [2008] ScotCS CSOH

"At secondary school his conduct proved so unmanageable that he was excluded from Hillhead School after his S2 year. Marc's behavioural functioning at home and within the community became more and more extreme with defiant, antisocial and, later, criminal behaviours (sic) and Marc also engaging when a young adolescent with considerable consumption of alcohol and cannabis."

Relying principally on Marc's behaviour since the accident, Dr McCabe, Dr Dorris and Dr O'Regan all came to the conclusion that Marc had sustained a brain injury in the accident.

[16] At para 14.4 of his report Dr McCabe stated:

"Marc's difficulties over the years following the accident have included the development of behavioural, cognitive, psychosocial and indeed psychiatric complications. This range of difficulties post-injury are (sic) often experienced following a significant closed head injury where there is an absence of any localising neurological signs that are more in keeping with a localised injury such as a penetrating skull fracture or with an accumulated blood clot. Widespread diffuse damage following a closed head injury can often particularly affect connections into and out of the frontal lobes with resultant impairment involving a loss of the individual's capacity to make sense of social situations, anticipate the consequences of their actions and respond appropriately."

[17] The diagnosis given by him at para 14.13 was as follows:

"In conclusion, it is my opinion that Marc sustained a significant brain injury through the road traffic accident when he was aged 7. This resulted in the development of a range of consequent mental health difficulties including the ICD-10 disorders F07 Unspecified organic personality and behavioural disorder due to brain damage (still active) and for a period of some years also PTSD (Post Traumatic Stress Disorder) F 43.1. Marc has also developed in his adolescence symptomatic difficulties in keeping with Conduct Disorder but I would argue that this should not be diagnosed as its onset has been secondary to the brain damage."

[18] Dr O'Regan in her report dated 11 April 2006 (6/18 of process) stated:

"In view of the fact that his father stated that Marc had altered levels of consciousness, he had a scalp wound, lost three teeth (not correct) and the casualty officer noted that he had blood in his nose, these suggest that in addition to his other injuries Marc had a head injury. His head injury would have to be classified as mild as his period of altered conscious level was less than 15 minutes. The paramedics scored his Glasgow Coma Scale at 15 at the scene of the accident. Marc exhibited signs of a post traumatic stress disorder for the first three years after his accident. These symptoms have now subsided. Whilst Marc has made a good physical recovery from his accident his behaviour, concentration, lack of focus and poor academic performance remain major problems. He is impulsive, oppositional and defiant: he obeys no rules and has difficulty adhering to any limits. His challenging behaviour has resulted in many encounters with the criminal justice system and he has been involved in risk-taking behaviour, alcohol and drug taking. He is receiving major support from the social work service.

Marc's behaviour is reminiscent of behaviour seen after head injuries. For children a head injury can lead to persistent cognitive and neurobehavioural deficits, intellectual, academic and personality adjustment problems and family stress. These effects are frequently seen after a severe head injury. However, even mild head injury can lead to persistent cognitive and behavioural deficits. Whilst most children (85%) have no sequelae secondary to mild head injuries a significant minority have problems described above. Outcome from head injuries is also influenced by where a child lives: a child who lives in a deprived area has a poorer outcome. In addition, parental socio-economic status also has an important effect on outcome, as does the family's ability to cope with the child's injuries. It must also be remembered that Marc was born prematurely. Prematurity can be associated with specific educational difficulties and difficulties with attention and concentration, and this may have increased his vulnerability to the effects of a head injury. There are some suggestions that Marc had some behavioural problems prior to his accident (his school report for the academic year 1997/1998 and in the correspondence from the clinical psychologists).

Marc has considerable behavioural and emotional difficulties that have had devastating effects on his educational career and have also brought him into contact with the criminal justice system. It is my opinion that as a result of the road traffic accident he suffered a mild head injury that has contributed to his present problems. In addition, he had a prolonged post traumatic stress disorder. Other factors that probably contribute to his present problems are his prematurity and his premorbid personality. However, post traumatic stress disorders, behavioural and cognitive problems are the area of expertise of a paediatric neuropsychologist and it would be appropriate to seek their opinion on the above matter."

[19] Dr Dorris was the paediatric neuropsychologist who was consulted. He carried out neuropsychological testing of Marc and prepared reports dated 23 May 2003 (6/8 of process), 25 June 2004 (6/10 of process) and 31 March 2006 (6/19 of process). In the conclusions of his first report he stated:

"6.3 Marc has a pattern of cognitive impairment and behaviour consistent with having sustained a degree of brain injury. He shows particular deficits in perceptual organisation and auditory-verbal attention. Marc also shows impulsivity and difficulty maintaining himself socially within group situations. I did not find evidence of any pre-morbid states such as high-activity/impulsivity, and therefore on the balance of probability would consider that these behavioural signs are also sequelae to head injury.

6.4 Marc did not experience any loss of consciousness and his CT scan did not reveal any significant pathology. However, these findings certainly do not rule out the possibility that Marc sustained tissue damage leading to the difficulties described above."

In his oral evidence he stated that, having considered the circumstances, he thought it highly likely that Marc did suffer loss of consciousness, although that was not recorded in the medical notes. He did not think he had seen the ambulance report, but even without seeing it he would have altered his opinion that Marc had not suffered any loss of consciousness.

[20] In his second report Dr Dorris expressed his neuropsychological opinion as follows:

"Marc continues to present with cognitive difficulties consistent with those frequently observed in frontal brain injury. These difficulties include poor planning and self-awareness, poor frustration tolerance and anti-social behaviour. Marc has very poor attention and behaviour organisation abilities. He is impulsive and has difficulty with maintaining a steady emotional state. He is quickly aroused and can become frustrated and aggressive with minimal provocation. He is not hyperactive and his attention skills are not notably enhanced when he is interested in a particular activity or stimulus. He does not therefore display a developmentally recognisable pattern of Attention Deficit Hyperactivity Disorder (ADHD). I do not see any compelling evidence within his medical history that he suffered from ADHD before his accident. Marc was born premature (sic) but was noted to have made the normal developmental progress during his early years. Marc's cognitive profile is also different from that observed in children with typical ADHD. The highly significant difference between his Verbal and Performance IQ scores (32 points), and the significant deterioration in the latter score from 2003, are strong evidence of brain injury. His verbal memory weakness in the context of average range verbal IQ is a further indicator of traumatic brain injury. However, Marc is displaying behavioural and cognitive deficits that can appear similar to those observed in ADHD. These deficits are typical sequelae of early brain injury. The differences in the underlying cause of these attention and behaviour problems, however, require different management and treatment approaches. Therefore, Marc Bell has significant intellectual and emotional deficits attributable to his injuries. These deficits shall significantly reduce his quality of life in occupational, social and emotional domains."

[21] The opinion in his third report included the following:

"It is my considered opinion that Marc Bell had a degree of developmental vulnerability by virtue of his prematurity, but that his development and educational progress were not grossly abnormal before his accident; that his parents each showed difficulty in adjusting to and coping with Marc's accident, creating further challenge in providing a secure and emotionally available context supporting his psychological recovery from post-traumatic stress disorder; and that Marc has experienced a significant deterioration in his mental health, cognitive function and emotional development since his accident. The relative contributions of psychological trauma, family functioning, pre-existing vulnerability and organic effects due to head injury are difficult to demonstrate. In my experience, children with pre-existing developmental vulnerability often experience a more significant effect from mild head injury than those without a notable developmental history and whose families were not experiencing any significant psychosocial strain at the time of the accident".

[22] Mr Johnson examined Marc on 12 October 2005, seven years after the accident. His report is 7/13 of process. He found that Marc gave no indication of any emotional or behavioural disorder and particularly of abnormal activity or distractibility. On the information then available to him he thought that Marc had a degree of (unconfirmed) developmental risk before the accident, that he may well have appeared to be developing normally before the accident, but that, given that risk, it was not possible to conclude that there were no present or future problems likely to occur. It was his understanding from the ambulance report and medical records that there was nothing to indicate that there was any compromise of Marc's neurological condition at the time of the accident. He administered a range of standard tests of cognitive function. Auditory verbal attention was found to be average. Marc demonstrated no significant difficulties on the task of letter-number sequencing, which taps sustained and divided attention, or on a task of focused attention, requiring inhibitory control of incorrect responses. His performances did not therefore indicate any significant difficulties in aspects of attention typically associated with frontal lobe functioning. He found notable differences between the results which he had obtained in certain tests from those earlier obtained by Dr Dorris. There was an apparently marked loss on two tasks, Similarities and Vocabulary, which was unlikely to be due to organic factors after such a short interval. Mood or motivation was the most likely explanation, together with some variation in the different versions of tests used. Marc's performances in the logical memory test showed an apparent decline which was not consistent with the effects of head or brain injury. Mr Johnson's opinion, set out at para 11.2 of his report, was as follows:

"The presenting difficulties do not suggest a pattern of impairment caused by traumatic brain injury. Similarly, the child's present test performances do not indicate a pattern of impairment that is consistent with traumatic brain injury. I note particularly that there are no consistent signs of frontal lobe impairment. Marc Bell's better performances were in auditory-verbal attention, an area of functioning in which impairment would be expected following traumatic brain injury."

[23] Professor Bone examined Marc on 3 March 2006 and reviewed the medical records. When he wrote his report he was labouring under the false impression that a CT scan of Marc's brain had not been performed at hospital. In his conclusion he stated:

"Whether his behavioural problems can be regarded as the consequence of a form of post traumatic stress disorder or indeed due to a degree of brain injury is difficult to apportion. Also Marc's behavioural disturbances could be constitutional and wholly unrelated to this accident. On the other hand his father is quite adamant that Marc's behaviour has deteriorated as a consequence of the accident and the accident alone, emphasising the fact that there had been no behavioural disturbance prior to trauma and that his twin brother brought up in the same home environment has never displayed anything other than correct and appropriate behaviour to the point that he is even considering a career within the police force.

....

Medical records do support that an injury to the head was sustained (scalp laceration) but given his admission Glasgow Coma Score and clinical observations thereafter the head injury component of his overall injuries has to be regarded as mild and the likelihood of significant frontal lobe damage to my mind remote."

[24] Dr Carson produced two reports on Marc. The first (7/29 of process) is dated 13 November 2006. Marc had failed to turn up for an appointment with Dr Carson, who wrote the report without seeing Marc. Having reviewed the medical records and the reports of Dr Dorris, Professor Bone and Mr Johnson, he opined at that stage:

"... there is very clear evidence indeed that no significant acquired brain injury occurred. It is clear that from the time of the ambulance men's arrival he was fully conscious and his Glasgow Coma Scale remained 15/15 with good levels of oxygen saturation and well maintained blood pressure and pulse throughout the rest of his admission. Structural imaging of his brain was normal. One can, in my opinion, be quite secure and categorical in stating that no significant acquired brain injury occurred during this accident. It is not always appreciated by lay people (and indeed by many mental health professionals) that acquired brain injuries are at their most severe at the time of the injury and in the immediate post injury period. The only exceptions to this are where major complications have occurred, for instance, a significant intracranial bleed. This is definitely not the case here. It is possible that a very brief concussive injury occurred prior to the arrival of the ambulance men. Indeed, given the obvious forces involved in this collision, this would not be surprising. This would be classified as minimally traumatic brain injury. The long term outcome of minimally traumatic brain injuries has been a controversial affair. ... The World Health Organisation in recognition of this problem helpfully conducted a very rigorous systematic review. It is accepted scientifically that this represents level 1 evidence and one should not be assessing the findings from individual studies where systematic review evidence exists unless these individual studies offer new data which directly challenge the methodology of the systematic review. The McKinlay study quoted by Dr Dorris does not meet such criteria. The World Health organisation are very robust in their conclusion that there is no evidence to suggest that minimally traumatic brain injury links to any significant behaviour or cognitive problems in children. I think we can therefore be secure in saying that whatever the cause of Marc's difficulties it was not the effects of acquired brain injury."

He agreed with Mr Johnson's comments on the findings of neuropsychological examination. He did not accept that the pattern of results was associated with acquired brain injury and thought that it never could be as no significant acquired brain injury occurred. In this respect he fully concurred with Professor Bone's conclusions.

[25] Dr Carson's second report (7/40 of process) was based on an examination of Marc on 29 November 2006. In the course of his opinion he stated:

"As noted in my original report the core diagnostic factors behind an acquired brain injury are peri-injury observations, in particular Glasgow Coma Scale, post traumatic amnesia and total duration of loss of consciousness. It is on these factors that one judges the severity of an acquired brain injury. Where these factors are clearly available, as they are in this case, one defers to them. It is only if such information is unavailable that one might consider other factors such as whether the injury had the potential to cause an acquired brain injury or whether symptoms displayed in the future (sic) could be compatible with an acquired brain injury.

Thus, while it is undoubtedly the case that an accident of the type that occurred could cause an acquired brain injury we have clear peri-accident recording that there was no evidence of reduction in consciousness. Whilst it is possible that one might conceive that concussion occurred, i e, a mild or minimally traumatic brain injury (the latter is the correct current phraseology), there is clearly persuasive evidence that nothing beyond this occurred. As described in my earlier report the World Health Organisation have helpfully reported on the consequences of acquired brain injury of minimally traumatic type and they are very clear that they do not cause long-term symptomatology. In particular, the quotation by Dr Regan that 15% of children have adverse outcomes is at odds with the current scientific literature and I think if she wishes to uphold this position she must explain why the World Health Organisation is wrong. The papers she has quoted do not in any way challenge the World Health Organisation's conclusions; indeed, they are not terribly helpful at all. Furthermore, in my opinion symptoms displayed after the injury are not typical of the neuro-psychiatric features of acquired brain injury, although they may look like them to the inexperienced observer. In particular, there is no convincing evidence of cognitive impairment. Although Marc complains of poor concentration I did not think he had the characteristic short attention of acquired brain injury. In other words, I felt his attention fluctuated dependent on his desire to attend to stimuli, whereas with brain injury this tends to be much more consistent. I thus feel I can be very robust in concluding that the injury was a minimally traumatic brain injury at very worst and there were no adverse neuro-psychiatric effects from it. Nor, according to the available world literature, could there be.

......

Diagnostically the only diagnosis I can see from childhood that can be securely made is in the field of conduct disorder - oppositional defiant disorder. These are essentially descriptions of bad behaviour in children.

.....

Clearly the behaviours (sic) Marc displayed over a time period were very distressing to all concerned and it is certainly the case that social work records made very upsetting reading. However, I think we have to be aware of the possibilities that one of the biggest factors in his deteriorating behaviour has simply been age. The range of destructive and difficult behaviour that a 5 year old can display are (sic) somewhat different to those that an 8-14 year old can display. In general, more dramatic behaviour would be more apparent as the child grows older. It does therefore seem to me that a conduct disorder which has just worsened through the effects of age in terms of the behaviours (sic) demonstrated, coupled perhaps with poor coping skills of the family, is the most likely explanation for Marc's problems. It would seem not unreasonable to me that a child, and indeed family unit, with poor coping skills would not deal well with an accident of the type that occurred, and it would therefore seem not unreasonable to suggest that the accident may have contributed to a deterioration in the 1-2 years after the accident. I wish to be very clear that this comment is entirely speculative and it may be the accident had no effect at all (I was unable to demonstrate any at my examination), but I think in general it is perhaps not an unreasonable assumption to suggest that this might have been the case."

[26] The World Health Organisation (WHO) paper to which Dr Carson referred was the report of the Collaborating Centre Task Force on mild traumatic brain injury (MTBI) (7/30 of process). The scientific literature from 1980 to 2004 was systematically searched and seminal papers published prior to 1980 were identified and included in the critical review. The summary of prognosis after MTBI in children was as follows:

"There is a great deal of uniformity in the findings of the methodologically acceptable studies on the prognosis of MTBI in children. Where post-concussion symptoms are present, they are usually transient in nature and by 2 weeks to 3 months symptoms are similar to groups of children who have sustained other types of injuries (such as orthopaedic injuries). The evidence also suggests few short or long term cognitive deficits. Most of the evidence also suggests that children with MTBI do not have higher rates of subsequent behavioural or school problems than children with other types of injuries."

Discussion and conclusion about traumatic brain injury

[27] The submission for the pursuer was that the factual evidence about Marc's post-accident behaviour and the opinion evidence of Dr McCabe, Dr Dorris and Dr O'Regan should be accepted and a finding made that he suffered a brain injury in the accident resulting in behavioural and cognitive problems. The submission for the defenders was that the evidence did not establish that Marc sustained brain injury in the accident or in any event that it did not establish that he sustained a brain injury which caused neurological impairment capable of giving rise to (and in fact giving rise to) whatever deficits of brain function the pursuer maintained it caused.
[28] In Davie v Magistrates of Edinburgh 1953 SC 34 at p 40 Lord President Cooper said:

"Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or the judge sitting as a jury ..... Their duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the judge or jury. In particular, the bare ipse dixit of a scientist, however eminent, upon the issue in controversy will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of an independent tribunal and not an oracular pronouncement by an expert."

The above passage was described by Lord President Rodger in Dingley v The Chief Constable, Strathclyde Police 1998 SC 548 at p 555 as "authoritative guidance on the approach which the court should take to expert evidence". I therefore seek to follow that guidance when assessing the expert evidence in this case.

[29] The evidence of Dr McCabe, Dr Dorris and Dr O'Regan to the effect that Marc suffered a brain injury in the accident was essentially inferential in nature. They considered his post-accident behaviour and inferred from it that he had suffered a brain injury in the accident. As Dr Dorris put it in his report, "Marc has a pattern of cognitive impairment and behaviour consistent with having sustained a degree of brain injury". In my opinion the evidence of these witnesses does not stand up to critical scientific examination. I have already found as a fact that Marc was not rendered unconscious in the accident and this undermines their evidence in so far as it proceeded upon the assumption that there was at least some degree of unconsciousness. Further, their evidence paid either insufficient or no attention to the WHO report, of which Professor Bone said "You cannot get any better evidence". Dr McCabe was not even aware of the WHO report. The methodology and conclusions in that report were not subjected to critical comment by the pursuer's experts. That report, having considered all the available evidence, concluded that it was clear that there were no long term residual effects of MTBI in children.

[30] On the other hand, I am satisfied that the evidence of Mr Johnson, Professor Bone and Dr Carson had a sound scientific foundation and was intellectually coherent. Mr Johnson, who has much experience in this area, was quite clear that the neuropsychological test results obtained by Dr Dorris and himself were inconsistent with acquired brain injury. These tests were designed to determine the brain's capacity to inhibit reactions and on Mr Johnson's unchallenged evidence there was no impairment in that capacity. Dr Carson agreed with Mr Johnson's view and stated that his findings on mental state examination, and also those obtained by Dr McCabe, were not consistent with diffuse axonal brain injury. Although Dr Carson was loquacious and dogmatic when giving evidence, I am nevertheless satisfied that the substance of his evidence was sound. I accept the submission for the defenders that it follows from his evidence that the scientific criteria against which any hypothesis that particular behaviour has been caused by a brain injury are as follows:

(a) the severity of the brain injury (mild, moderate or severe, assessed by the duration of loss of consciousness at the time of the accident);

(b) the epidemiological evidence about the effects, if any, of brain injury of the severity suffered by the subject;

(c) whether the injury suffered was focal or diffuse; and, if there is any doubt about whether brain injury of a particular severity can cause particular neurological deficits -

(d) whether neuropsychological test results show deficits in those areas of brain functioning that accord with the behaviour which is suggested to be a consequence of the brain injury.

The evidence of the pursuer's experts fails to satisfy these criteria and fails to establish any brain injury with neurological consequences.

[31] My conclusion on the question of alleged brain injury is that the evidence establishes that Marc did not suffer any brain injury at all. Even if he had, it would at most have been mild (or minimally) traumatic brain injury with no neurological consequences. The question may be asked, if Marc's behavioural problems were not caused by a brain injury, what did cause them? It is not for the defenders to prove the cause of Marc's behavioural problems, but there is a basis in the evidence of Professor Bone and Dr Carson for the view that his problems are constitutional in nature. It cannot in my view be said that the only probable, or even possible, explanation for Marc's behaviour is that he sustained a brain injury in the accident.

Whether Marc suffered from PTSD

[32] The submission for the pursuer was that Marc suffered from PTSD following the accident and that this was referred to in the various letters and reports from Dr Lisa McKechnie and Dr Addo and subject to agreement between the parties in terms of the joint minute 7/59 of process. He had suffered from distressing and recurring nightmares following his accident and it was maintained that they continued to the present time to a lesser degree (approximately twice per month).

[33] It was submitted for the defenders that it had not been established that Marc ever fulfilled the diagnostic criteria for PTSD. The psychologist Lisa McKechnie, whose letters 6/12, 6/13 and 6/14 Dr Dorris had relied on as the basis for his view that Marc had or might have had PTSD in the past, had not been called as a witness and the contents of these productions were not agreed to be true. The diagnostic criteria for PTSD were set out in 7/10 of process. In any event, even if Marc did have PTSD, it had not been established for how long he had had it. The evidence had not established when he was first seen by Lisa McKechnie or that he was seen by her for a prolonged period or in any event after her letter of 9 August 2000. Moreover, it had not been established that any PTSD was severe or affected Marc's functioning. When Dr McCabe saw Marc on 2 April 2007 he did not think that he was then suffering from PTSD.

[34] No psychologist or psychiatrist gave evidence that he or she had carried out an examination of Marc and that he satisfied the diagnostic criteria for PTSD. It seems to have been assumed on behalf of the pursuer that the fact that Marc suffered from PTSD could be taken as read. That is clearly not the case. The joint minute did not agree the contents of the letters of Lisa McKechnie and Dr Addo to be true (paras 4 and 5 of 59 of process). I do not know what their evidence would have amounted to after they had been subjected to cross-examination. There would have been questions of fact to have been resolved in the context of any diagnosis, such as whether Marc had any memory of the accident and whether he suffered from nightmares. Dr Carson said that he was unable to find evidence of Marc ever having had PTSD. Having said that, based on his own examination, he could detect no significant psychiatric symptomatology at any stage, he put the matter (in my view, fairly) as follows in his report:

"In particular, I cannot see any evidence to support a diagnosis of post traumatic stress disorder from Marc's own descriptions of symptomatology. If the father's descriptions are believed one might argue that the presentation of nightmares and the reluctance to go past the scene of the accident might suggest an atypical post traumatic stress disorder (it would not meet the DSM IV criteria). I think this is a situation that would be very dependent upon whose account one defers to. I generally feel that with post traumatic stress disorder, which in essence is dependent on persistent and upsetting re-experiencing of events, one should defer to the patient's account. Certainly Marc was very clear at my own review that such symptoms were not present. Nor could I find any description of them in contemporaneously recorded medical records. Furthermore, I could not detect, within the psychology letters, any clear cut evidence in terms of positive symptomatology that such a disorder was present. Dr McKechnie was making the not unreasonable supposition that PTSD could have happened, his father was reporting compatible symptoms, and, although Marc was denying them, he was displaying difficult behaviours (sic) and therefore this was a likely explanation (I do of course apologise to her and the court if this is not the case). Thus, whilst I would fully accept that an accident of the type that occurred could have the potential to cause an emotional reaction, particularly in a vulnerable child, I could not personally see any evidence of this being the case. I would, however, want to make clear that I would certainly concede it as being a distinct possibility."

[35] In light of these factors I am not satisfied that it has been proved that Marc ever satisfied the criteria for a diagnosis of PTSD. Having said that, I am in no doubt that he suffered considerable upset and distress as a result of his physical injuries, and that that requires to be taken into account in the assessment of damages for solatium.

Damages
[36] As I have found that Marc did not suffer a brain injury or PTSD as a result of the accident, no awards for loss of earnings or future care fall to be made.

(i) Solatium

I have summarised above at paras 4, 13 and 14 Marc's physical injuries and their major consequences, including operative procedures and significant cosmetic defects. He underwent much distress and suffering.

The submission for the defenders was that in these circumstances the appropriate award for solatium would be £15,000 (E (A Minor) v Greaves, Kemp and Kemp, para 115-016, JSB Guidelines, section 6(L)(c)). I think that the proposed figure is far too low as it fails to reflect the totality of the injuries. This is not a case of only a fractured femur, but of the other injuries mentioned and permanent disfigurement in different parts of the body. Several operative procedures were required. In my opinion the appropriate figure for solatium is £25,000.

(ii) Past services

As I have concluded the only injuries attributable to the accident were the physical ones mentioned, it follows that the award for services rendered by Marc's father must be restricted to the period of his physical disability. I accept the submission for the defenders that there was no requirement for services as a result of his injuries after the date by which he should have been out of a wheelchair and not using crutches had passed. Evidence about services was given by two care reporters, Ailish McCarron (for the pursuer) and Tessa Gough (for the defenders). On the basis of the latter's evidence a figure of £4,861.85, subject to a 25% reduction for tax and national insurance, was proposed by the defenders for the period up to 31 August 1999. Ailish McCarron calculated past care from the date of the accident up to October 1999 at the gross figure of £7,665.37. It is impossible to be precise in this area and I can take only a broad approach based on the evidence which I heard. Allowing for past services for a period of about a year after the accident, I fix the gross figure at £6,500. A deduction of 25% representing tax and national insurance brings out a net award for past services of £4,875.

(iii) Outlays and expenses

These amount to £370 (exclusive of interest).

(iv) Total Award

The total figure on the basis of full liability is £30,245. As liability has been agreed at 50% the principal sum of the award of damages (rounded off to the nearest pound) is £15,123. The necessary interlocutor will not be pronounced until the questions of interest and expenses have been dealt with at a By Order Hearing.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mitchell v. Allianz Cornhill [2008] ScotCS CSOH_132 (09 September 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_132.html Cite as: [2008] ScotCS CSOH_132, [2008] CSOH 132

Scottish Court of Session Decisions