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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 74
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OPINION OF LORD MALCOLM
in the cause
BILLY McGHEE
Pursuer;
against
DIAGEO PLC
Defenders:
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Pursuer:
Smith Q.C., McNaughtan; Digby
Brown S.S.C.
Defenders: J.R. Campbell Q.C., Marney; HBM Sayers
16 May 2008
[1] On
20 October 2003 the
pursuer was a 20 year old trainee service engineer with Stilcan Industrial
Conveyors Ltd. He was told to attend at
the defenders' premises at Glen Ord Distillery to carry out maintenance work on
scrapers on two conveyor belts. In order
to do so he climbed into a hopper and stood on a screw feeder. At the time he believed that the electrical
power to the screw feeder had been isolated.
However he was mistaken. After a
short time the screw feeder started and the pursuer's feet and legs were drawn
into it. As a result, he suffered the
injuries discussed below.
[2] In
this action the pursuer seeks damages for the said injuries. Liability was admitted and I heard a proof limited
to the issues of contributory negligence and quantum. For the defenders, Mr Campbell's
submission in support of contributory negligence was that the pursuer had been
told by the defenders' Mr Stacey Nicholl that the screw feeder was about
to start, thus the pursuer was partly to blame for the accident. Mr Campbell suggested that this should
be recognised by a reduction in damages of between 20-25%. The only evidence in support of the
contributory negligence case came from Mr Nicholl. The pursuer denied that he had been told that
the screw feeder was about to start. He
understood that the feeder had been isolated and that he was not at risk when
standing upon it. Mr Campbell
submitted that it was inherently improbable that Mr Nicholl would not have told
the pursuer that the feeder was about to become operational. However, given the clear danger of standing
on a working screw feeder, to my mind the more obvious improbability is that
the pursuer would do this if Mr Nicholl had told him that it was about to
start. During the evidence the defenders
sought to establish that the pursuer could have carried out the work without
climbing into the hopper and so without standing on the screw feeder. To do this he would have had to unscrew a substantial
metal plate, something which may have required assistance. This metal plate was referred to by
Mr Campbell as "an access hatch".
The pursuer denied any knowledge of this possibility. Furthermore it was clear from the photographs
produced that this possible means of access to the belt was by no means readily
apparent. The defenders' pleadings
included a case to the effect that the defenders' representatives understood that
the pursuer would use the access hatch in which case he would not be near the
screw feeder. Wisely Mr Campbell
did not pursue any argument based on the so called access hatch. Nonetheless it stands uneasily with the
proposition that Mr Nicholl must have told the pursuer about the imminent
operation of the screw feeder. Why should
it be concluded that Mr Nicholl must have said this, if he did not expect
the pursuer to be close to the screw feeder?
[3] The
burden of proving that the pursuer knew that the screw feeder was about to
start rests on the defenders. The only
evidence in support of it came from Mr Nicholl.
His evidence was in somewhat vague and uncertain terms. It was denied by the pursuer and was
uncorroborated. Further there remains at
least the possibility that Mr Nicholl tried but failed to get this message
over to the pursuer. In all the
circumstances I have no difficulty in concluding that the defenders have not
met the burden of proof resting upon them, therefore I reject the case of
contributory negligence.
[4] The
bulk of the submissions dealt with quantum.
There was substantial agreement between the parties, but they were at
odds on the appropriate figure for future wage loss. Before going into that matter, it is
appropriate to outline the nature of the injuries sustained by the pursuer and
his ongoing disability.
Mr David W. Bell, a consultant orthopaedic surgeon, spoke to
his medical report dated 14 February
2005. In summary the pursuer
sustained a fracture of the right ankle and displaced fractures of the second
and third metatarsal bones of the foot, along with associated gross swelling of
the foot. A metal plate and various
screws were inserted into the ankle. In
due course the pursuer received physiotherapy and other treatment designed to
overcome swelling and stiffness in the foot and ankle. At the time of the report, some
16 months after the accident, the pursuer continued to experience pain and
stiffness in the foot, especially if walking for any distance. He could not run nor pursue his passion for
playing football. The right lower leg
showed no residual muscle wasting of the calf when compared with the other
leg. Movement of the ankle was full and
pain free. There was some restriction of
movement in the foot with associated discomfort, indicative of activity induced
forefoot pain. In the surgeon's view the
pursuer could undertake most jobs, but the foot would tire after prolonged
standing in one position. Ongoing arch
pain in the foot is a permanent legacy of the accident. It is clear that the pursuer's footballing
days are over. Mr Bell's evidence
was unchallenged and I accept all of it.
[5] For
the defenders Dr C.R. Rodger, a consultant psychiatrist, gave
evidence relating to certain psychological difficulties suffered by the pursuer. However, in so far as they persist, they are responsive
to appropriate treatment, and it is not envisaged that they will have any substantial
impact on the pursuer's employment prospects or earning capacity. This matter did not figure to any material
extent in the pursuer's calculation of future loss of earnings.
[6] The
pursuer said that he has a limp; cannot
walk any distance nor carry a hoover up stairs; and suffers pain and stiffness in the ankle
and foot. He certainly cannot play
football. When younger he had the
opportunity to sign a pre-contract agreement with Dundee United Football
Club. However he delayed and the offer
was never repeated. The pursuer enjoyed
a spell as an amateur with Queens Park Football Club, but until the accident in
the main he played for a team called Busby Amateurs. At the time of the accident he still had
ambitions of professional football. In
cross-examination he accepted that after the Dundee United episode he was never
offered a professional contract. He had
been in continuous employment after leaving school, albeit he had only recently
begun his work with Stilcan. However he
was confident that he would have progressed with that company. In the result Stilcan ceased trading
in 2004. After the accident the
pursuer had attempted to complete an HGV licence training course, but he was not
fit for the work involved. He also
attempted to work in a call centre. This
was at a time when he had psychological problems and he did not cope with the particular
challenges of that form of employment. The
pursuer is very keen to obtain employment and would be willing to undertake
appropriate retraining. The pursuer
impressed me as an honest and straightforward person who will do all that is
necessary to obtain employment in the future.
[7] Employment
reports were spoken to by Mr Peter Davies on behalf of the pursuer and by
Mr Gordon Cameron on behalf of the defenders. There was little between them on the material
issues and figures. Mr Davies'
assessment of the pursuer's earning capacity, had there been no accident, was
higher than that of Mr Cameron.
This was because he assumed that on Stilcan's demise the pursuer would
have obtained similar employment with a company specialising in the repair and
maintenance of conveyor belts. The work
carried out by Stilcan would still have to be done, and by 2004 the
pursuer would have been trained for this specialist activity. Mr Cameron considered that this was too
much of a "niche market", however on this issue I consider that it would be
both fair and reasonable to quantify the pursuer's claim on the basis put
forward by Mr Davies. As Mr Davies
commented, the pursuer was in the niche market.
Mr Davies said that the pursuer has good potential for retraining. This would open up more sedentary forms of
employment which would nonetheless establish his earning capacity at a level
similar to that of his pre-accident employment.
The pursuer would require to obtain the necessary treatment for his
psychological problems and then retrain, all as part of a vocational
rehabilitation plan. An HND course would
take about three years. The pursuer was
happy to attend college for this purpose and was more than capable of
completing such a course.
[8] The
only issue in dispute regarding quantum was the appropriate figure for future
loss of earnings. For the pursuer
Mr Smith produced various schedules based on either Mr Davies' or
Mr Cameron's figures under reference to the relevant tables in the sixth
edition of the Ogden Tables and dependent upon whether the pursuer did or did
not fulfil the criteria for disability at the time of the proof. I have no difficulty in finding that the
pursuer is disabled in terms of the criteria in the Ogden Tables. In his introduction to the sixth edition
Robin de Wilde, Q.C. states that the range of disabilities covered by the
term "disabled" in the tables is very wide.
Kemp & Kemp vol. 1
10-015 speaks of the relatively low threshold required in this regard, and of the
need for potentially significant adjustment of the tables depending on the
extent of a particular claimant's disability.
It is acknowledged that this matter requires to be assessed on a "case
by case basis". Reference can also be made to paragraphs 31 and 32 of
the explanatory notes to the tables which stress the need to consider the
particular circumstances of the case rather than simply apply the tables. However it is not clear to me that sufficient
information is provided as to the assumptions underlying the tables to allow
this adjustment to be made on any reasonably accurate basis, nor to identify
when the nature of a particular claimant's disability makes it appropriate to
apply the tables without any adjustment.
In addition paragraph 44 of the explanatory notes states that the
relevant tables assume that there will be no change in educational achievement
after the accident. In the present case
the evidence of the pursuer, Mr Davies and Mr Cameron demonstrates
that it is likely that the pursuer will take the opportunity to obtain
additional qualifications which will open up a wide range of work to him,
notwithstanding his residual disability.
[9] Given
my findings it is appropriate to focus on Mr Smith's schedule headed
"Peter Davies' evidence and the pursuer disabled at the time of the proof". This schedule shows a value for the pursuer's
pre-accident earning capacity of £402, 500, and a value post-accident
of £72,500 (rounded), suggesting a claim in the region
of £330,000. While Mr Smith
submitted that I must simply apply the tables, in my view it is clear that an
award of that size would be excessive, presumably because the tables are based
on some average disability of greater severity than that which afflicts the
pursuer. Both employment consultants
accepted that after appropriate retraining the pursuer would be fit for work
which would provide an earning capacity broadly equivalent to that arising from
his pre-accident employment. It follows
that I am not prepared to accept Mr Smith's submission based upon that
schedule.
[10] For the defenders Mr Campbell put forward an Ogden Tables
calculation on the basis of Mr Cameron's figures with the pursuer not
being disabled at the time of the proof.
This indicated a claim of £88,250 for future wage loss. Given the above conclusions the assumptions
made in this calculation are inappropriate.
However on the same sheet Mr Campbell put forward an alternative
approach which was based upon the pursuer undertaking appropriate treatment for
his psychological difficulties and then retraining, during which four year period
he would earn nothing, but thereafter he would enjoy a potential earning capacity
in excess of Mr Cameron's figures for the likely no accident
scenario. That calculation indicated a
claim of £60,000.
[11] I consider it reasonable and realistic in the circumstances of
this case to proceed on the basis that after a rehabilitation period of about
one year and with appropriate retraining thereafter the pursuer can restore his
pre-accident earning capacity, albeit he will still remain disadvantaged in the
labour market because of his continuing disability. In order to reach that rehabilitated and retrained
position it would be appropriate to allow a total of four years future wage
loss using Mr Davies' multiplicand of £18,500, giving a loss
of £74,000 for that period.
Thereafter the pursuer's earning capacity would be much the same as the
likely outcome if there had been no accident.
Nonetheless I consider that it would be appropriate to recognise some
further loss based on his continuing disability which, on a broad brush basis,
I assess at a further lump sum figure of £74,000, giving a total award in
this regard of £148,000. This also acknowledges
that the sixth edition of the Ogden Tables demonstrates that disabled persons
suffer in the labour market to a greater extent than was previously
understood. If authority is required for
the use of a lump sum to calculate this element of the claim, given all the
uncertainties and imponderables I find it in the judgment of Lord Justice
Steyn (as he then was) in Blamire v South Cumbria Health Authority [1993]
P.I.Q.R. 1. I have given
consideration to whether the relevant Ogden Tables should be applied in the
manner urged upon me by Mr Smith.
However the tables are not well designed for the particular
circumstances of this case, and in particular the retraining opportunity and
the enhanced employment prospects thereafter.
In addition there are considerable uncertainties and imponderables in
respect of the impact of the pursuer's residual disability once he is trained
for relatively well paid but sedentary employment which militate against the
use of the tables. I have already
commented that a simple application of the tables would produce a clearly
excessive award, and the approach which I have adopted has avoided the need for
an essentially arbitrary adjustment of the tables in an attempt to reflect the
particular level of disability suffered by the pursuer. My attention was drawn to a passage in the
speech of Lord Lloyd of Berwick in Wells
v Wells [1999] 1 A.C. 345
at 379 in which his Lordship advised that while there may well be special
factors in particular cases, the tables should now be regarded as "the starting
point rather than a check". However in
its context it is clear that this comment was directed to earlier cases where
application of the tables was entirely appropriate but the judge wrongly
decided to interfere with them on "impressionistic grounds" and the like. For example, in the case of a whole life
multiplier with an agreed expectation of life there is no room for a judicial discount
on the figure given in the tables. In
addition the explanatory notes to the tables expressly recognise that there
will be cases where a Blamire
approach is applicable (paragraph 31).
In any event, the above discussion indicates that I have started from a
consideration of the tables, albeit in the result I have not applied them. Mr Campbell recognised that it would be
appropriate to allow for the cost of treatment for the psychological problems,
and so I increase the final sum to £149,000.
[12] As to the potential loss of a professional footballing career,
Mr Smith asked for an award of £30,000. However I agree with Mr Campbell's
submission that this claim is too speculative.
Some four years had passed since the Dundee United approach without any
offer or even suggestion of a possible offer of professional football. There is no evidence to indicate that at the
time of the accident the pursuer had a material prospect of a career in the professional ranks. If there had been evidence that he was attracting
the interest of a professional club then the position might have been different.
[13] In terms of the Joint Minute I shall
(a) award solatium at a sum
of £30,000, with interest thereon to the date of the joint minute
(12 March 2008) of £3,519 and thereafter interest at 4% per
annum on £30,000 to the date of this decree, and thereafter interest on
the entire sum at 8% per annum until payment;
(b) award past wage loss at
the sum of £50,000, inclusive of interest, with interest from the date of
decree at 8% per annum until payment;
and
(c) in respect of past
services award £4,000, with interest from the date of decree at 8%
per annum until payment.
[14] Finally, I shall award the sum of £149,000 by way of
future loss, with interest at the rate of 8% per annum from the date of
decree until payment. I shall also
reserve the question of expenses.
[15] An issue arises as to whether the court is obliged to apply the
terms of section 15 of the Social Security (Recovery of Benefits)
Act 1997, and if so in what terms.
The matter may be complicated by the fact that the award which I have
made in respect of part of the relevant five year period flows from the terms
of the parties' agreement. I shall put
the case out By Order to allow parties to address this issue and also, if
necessary, that of expenses.
