Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 164
PD2497/09	OPINION OF LORD DOHERTY in the cause JAMES SMITH Pursuer; against (1) OPPORTUNUS FISHING COMPANY LTD; (2) THISTLE MARINE (PETERHEAD) LIMITED; AND (3) JAMES BUCHAN Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Davie, Advocate; Thorntons, Solicitors

Defender: Thomson, Advocate; Simpson & Marwick, Solicitors

10 December 2010

Introduction

[1] In this reparation action the pursuer seeks damages for personal injuries sustained by him on 21 September 2007 while working as a share fisherman. He was working as a deckhand on the MVF Opportunus IV, a fishing boat owned by the first defenders and skippered by the third defender. The boat was trawling about 100 miles east of Peterhead when a heavy metal plate fell from a gallast frame about 15 feet above deck and struck the pursuer a glancing blow on the head.

[2] The second defenders are marine engineers who had carried out maintenance to hydraulic pipes on the gallast frame shortly before the boat left on the fishing trip. They lodged a Minute of Admission of Liability to make reparation to the pursuer. Mr Thomson appeared on their behalf at the proof. There was no representation for the first or third defenders. Mr Thomson explained that the background was that the defenders had reached agreement inter se in relation to the question of liability.

[3] On behalf of the pursuer Miss Davie indicated that she was content that decree should only pass against the second defenders and that the first and third defenders should be assoilzied.

[4] The only issues remaining for proof concerned quantum of damages.

The pursuer's injuries
[5] I heard evidence relating to the pursuer's injuries, and his subsequent condition, from the pursuer, his wife, his skipper (the third defender), and Dr Robert Taylor, Consultant Clinical Neuropsychologist. In addition, the evidence of Dr Colin Mumford, Consultant Neurologist, had been taken on commission in advance of the proof.

[7] The pursuer was struck on the right side of his head. He lost consciousness briefly - for at most a few minutes. He was transferred by air to the Accident & Emergency Department at Aberdeen Royal Infirmary where he was noted to be alert and orientated. The scalp laceration over the right side of his forehead was sutured. The presence of nausea, frontal throbbing headache, tenderness in the right parietal area of the scalp, and photophobia were noted. He was discharged home on 23 September 2007.

[8] The pursuer was unable to return to work for about 8 months. During that period he was more or less confined to home, remaining in his bedroom for much of the time. He suffered from headaches which were frequent and disabling. He complained of memory, comprehension and concentration difficulties, as well as low mood, despondency, tearfulness, depression, stress, irritability, increased sleep disturbance and feelings of frustration. He returned to work only with very considerable effort, and because of financial worries.

[9] On his return to work the pursuer maintained that he continued to experience difficulties with headaches and with memory, comprehension and concentration. His mood improved. The headaches lessened in severity but continued, he said, to be more frequent and more severe than the headaches he had suffered before the accident.

[10] The main issues which I require to resolve in relation to the pursuer's injuries are: (i) the extent to which the pursuer's headaches were/are caused by the accident; (ii) what, if any, neuropsychological difficulties resulted from the accident? (iii) whether any such neuropsychological difficulties are likely to be permanent?

(i) Headaches

[11] It is plain on the evidence of Dr Mumford, and from the medical records, that the pursuer had a long history of headaches prior to the accident. As Dr Mumford observed, he had required to seek specialist help. I accept Dr Mumford's diagnosis that the pursuer had a clearly established past history of migraine which was moving into chronic daily headache syndrome before the accident. Dr Mumford acknowledged that the pursuer had at least a period of many months prior to the accident when he was nearly symptom-free, and that the accident was likely to have exacerbated the pursuer's headaches for a period of 8 months or so. His view is that thereafter the cause of the pursuer's headaches was his pre-existing migraine.

[12] Dr Mumford's opinion is the only medical evidence available to me as to the cause of the pursuer's headaches. There is no competing diagnosis. Dr Taylor made clear that he was not competent to comment on the possible cause of the pursuer's persisting headaches or on the prognosis concerning them.

[13] I accept Dr Mumford's evidence on this issue. I proceed on the basis that, so far as headaches are concerned, the accident exacerbated the pursuer's headaches for a period of 8 months or so.

(ii) Neuropsychological difficulties

[14] Dr Taylor examined the pursuer on 19 June 2009. It was common ground that he carried out a very thorough neuropsychological assessment. He found the pursuer to have mild acquired impairment of mental functioning, and some alterations in mood, personality and behaviour. He had mild impairments in memory for new material, and for remembering to do things. He had mild difficulties with naming and with complex auditory comprehension. He had subtle difficulties on some complex constructional tasks. He had mild difficulties in producing words in the given category, arranging pictures in a logical order, and controlling attention in the presence of interference. His concentration showed lapses at times. He had intermittent anxiety and variable mood, but not persistent depression (on anti-depressant medication).

[15] Dr Mumford did not challenge those findings. He deferred to Dr Taylor's expertise on such assessments (subject to two qualifications which I address below).

[16] I accept Dr Taylor's evidence as to his findings on assessment. He impressed me as a witness who gave his evidence in a careful and considered way. He was able to explain his findings to the Court satisfactorily. Those findings were consistent with the evidence of the pursuer, his wife, and the third defender as to the pursuer's difficulties.

(iii) Permanent impairment?

[17] While Dr Mumford accepted the findings of Dr Taylor's neuropsychological assessment, he did not accept Dr Taylor's opinion that the impairments were likely to be permanent. His view was that it was possible for there to be improvement for a period of up to 3 years after a head injury. Dr Taylor's examination was 1 year 9 months after the accident, at a time when, in Dr Mumford's view, further recovery was still possible. Dr Mumford observed that the pursuer had made no complaint of neuropsychological deficits when he had examined him on 22 June 2010, and that it was possible that this was because by that time there had been further improvement.

[18] That explanation does not appear to me to be likely. It is clear that Dr Mumford's focus at his examination was on the pursuer's headaches. He indicated that while he had made a careful study of the pre-accident medical records, he had not carried out such an exercise for the records which post-dated the accident. There were entries in those records which indicated the existence of neuropsychological difficulties. Having regard to those, to the fact that the pursuer had been noted not to be a good historian, and to the fact (spoken to by Dr Taylor) that it is common for persons who have suffered head injury not to spontaneously report all their difficulties, it would have been preferable for more specific questions to have been put to the pursuer by Dr Mumford. It was foreseeable that asking the pursuer very general questions (which is what Dr Mumford did) might not elicit the full picture.

[19] Dr Taylor's evidence was that most neuropsychologists and neurosurgeons that he knew would regard 2 years as being the period within which any improvement in neuropsychological deficits would be likely to occur. It was possible, but unlikely, that there could be improvement, or deterioration, after 2 years. In most cases there would not be.

[20] Dr Taylor's examination was carried out just short of 2 years after injury. The injury had been a mild one. The studies relating to the average 2 year period included very serious injuries. With milder injuries the period during which improvement was likely was generally less than the average of 2 years, and was nearer a year.

[21] On this issue I found Dr Taylor's evidence more persuasive than Dr Mumford's, for the reasons which Dr Taylor gave. In addition, Dr Taylor's evidence that the pursuer's neuropsychological deficits were permanent was supported by the evidence given by the pursuer, his wife, and the third defender, that the pursuer's problems continued to exist at the date of proof.

[22] There was a further difference between Dr Taylor and Dr Mumford. Dr Taylor posited the opinion that the mechanism of brain injury may have been a contrecoup. The neuropsychological findings were indicative of some damage to the left temporal lobe of the brain. In Dr Taylor's view the only other possibilities were that the pursuer was one of the small minority of right handed persons (about 1%) who had the relevant functions on the right side of the brain: or that the injuries pre-dated the accident. He explained that mild brain damage was not always detectable on scanning - and indeed could appear on an early scan and not be apparent on a later scan. Dr Mumford was sceptical as to this mechanism. He suggested a contrecoup might have been expected to cause neurological deficits, and he had found none.

[23] As Dr Mumford accepted Dr Taylor's findings that mild brain injury had been caused by the accident, it is not necessary for me to determine the precise mechanism of injury. Had it been, I would have been inclined to accept Dr Taylor's evidence on this matter. While Dr Mumford doubted that the mechanism was a contrecoup, he did not put forward any alternative mechanism. Of the possible explanations discussed by Dr Taylor, I accept that contrecoup injury is the most plausible. There was no suggestion that the pursuer's deficits pre-dated the accident. I did not understand it to be suggested that where there has been a contrecoup injury there must always be observable signs of neurological damage. Certainly, that was not a matter which was put to Dr Taylor in cross-examination. (Indeed, while some of Dr Mumford's views on the contrecoup issue were put to Dr Taylor in examination-in-chief, Dr Taylor was not cross-examined at all as to the mechanism of injury). There is no basis in the evidence for inferring that the pursuer was one of those rare persons who had the relevant brain functions on the right side of the brain. (Had there been, the brain damage would have been the result of the direct blow at the time of the accident).

Heads of claim

[24] In valuing the pursuer's claim I proceed on the basis that he suffered an intense period of incapacity for about 8 months, which included severe and frequent headaches, and that he then returned to work with some difficulty. He is left with permanent mild neurophyschological deficits. These do not prevent him from working as a fisherman, but they have made the work more demanding than previously. His skipper and crewmates have had, and will continue to have, to make allowances to accommodate his difficulties. It is possible that in relation to some of the deficits he may be able to develop strategies to enable him to cope better with them. There is scope for continued improvement in relation to his mood and behavioural problems.

Solatium

[25] I assess solatium at £17,500. In arriving at that figure I have obtained guidance from the Judicial Studies Board Guidelines (10^th Ed) chapter 2(A)(d), "Minor Brain Damage". Having regard to all the circumstances, I place the pursuer just below the mid point of this bracket (£10,000 - £28,250). I attribute 60% of this sum to the past with interest thereon at the rate of 4% per annum until the date of decree. The resultant award inclusive of interest is £18,849.

Loss of earnings

[26] The pursuer was a share fisherman. When he worked he shared in the profits of each catch. From the proceeds of each catch expenses were deducted. Profits were then divided with half being shared between the skipper and crew and half going to the boat owners, the first defenders. (The third defender and his mother each own 50% of the shares in the first defenders).

[27] The pursuer was off work for about 8 months. Counsel for the pursuer maintained that the appropriate starting point in assessing loss of earnings was to take the gross earnings of the comparable deckhand, and make appropriate deductions for income tax and national insurance. Counsel for the second defenders submitted that the preferable course was to look at the pursuer's pre-accident earnings and make some allowance for the fact that, generally, earnings appear to have been increasing year on year.

[28] I am satisfied on the evidence that the gross earnings of the comparable deckhand provide the better indication of the gross earnings which would have been achieved by the pursuer had he not been incapacitated by the accident. The comparator's gross earnings for the period of the pursuer's absence were £33,826 (£26,491 (during 2007-08) and £7,335 (during 2008-09) (6/22)). The pursuer would have required to pay income tax and national insurance contributions on those earnings. His gross earnings in 2007-08 up to the point he went off work were £21,306 (£32,686 - £11,380). The additional gross earnings of £26,491 he would have received had he been at work would have been subject to deductions for tax and national insurance. Using 2007-08 rates, the gross income between £21,306 and £47,797 would have been subject to income tax in the sum of £6,975.70 (£20,115 at 22% and £6,376 at 40%) and national insurance of £1,121.49 (£12,234 at 8% and £14,257 at 1%). The net loss in 2007-08 was accordingly £18,394.01. The lost gross earnings of £7,335 for 2008-09 would have required to be added to the gross income of £42,363 he earned in that year after his return to work (6/23). Using 2008-09 rates the additional earnings would have been subject to income tax in the sum of £2,819.16 (£638 at 22% and £6,697 at 40%) and additional national insurance of £73.35 (£7,335 at 1%). The net loss of earnings in 2008-09 was accordingly £4,442.49. It follows that, subject to the possible deductions considered below, the pursuer's net earnings loss during the whole period of his absence totalled £22,836.50.

Deductions?

[29] During his absence from work the pursuer received two types of payments.

[30] The first set of payments were payments of £100 per week made under a personal accident insurance policy which the first defenders had arranged in respect of the crew of the MFV Opportunus IV. Counsel for the second defenders conceded that these payments ought not to be deducted from the pursuer's loss of earnings.

[31] The second set of payments were made by the first defenders from their share of the profits of each fishing trip during the pursuer's absence. (The third defender was clear in his evidence that the payments were made from the first defender's share of the profits and that had they not been made the first defender's share of the profits would have been increased). The payments totalled £13,180 over the period of the pursuer's absence (6/22).

[32] Counsel for the pursuer submitted that these payments were a loan which did not fall to be deducted in calculating the pursuer's loss of earnings.

[33] Counsel for the second defenders did not maintain that these sums were remuneration or earnings from employment (cf. Administration of Justice Act 1982, section 10(i)). He accepted that if the sums were loaned they were not deductable. In my opinion he was right to do so. Receipt of a loan does not mitigate losses which the injured person would otherwise sustain. The loan remains repayable. It is not a payment to account of damages.

[34] Counsel for the second defenders went on to submit that on the evidence the transaction was not truly one of loan. Rather, the payments were payments of a benevolent character made to the pursuer by the responsible person and fell to be taken into account by reason of section 10(iv) of the Administration of Justice Act 1982. In support of this proposition he contended that the absence of an agreed duration, and the absence of any provision for interest, indicated the true nature of the transaction was not loan.

[35] On the evidence I have no difficulty in concluding that the payments to the pursuer were made by way of loan. Both the evidence of the pursuer and the evidence of the third defender were to that effect. Both spoke to there being an oral agreement that the sums advanced would be repaid. The pursuer was clear that this was to be the case whether or not he succeeded in this action. The third defender was clear that the agreement was for the first defenders to lend the pursuer the money. The money was to be paid whatever happened with the litigation. I accept the evidence of the pursuer and the third defender on this matter. Neither of the features adverted to by counsel for the second defenders persuade me that loan is not the proper characterisation of the transaction. It is not uncommon for the repayment date of a loan to be unspecified. In such circumstances the law usually implies a term that repayment is to be on demand. The parties to a loan can, and not uncommonly do, agree that a loan be interest-free. It is plain from the evidence of the pursuer and the third defender that that was the common understanding here.

[36] None of the payments was a "payment of a benevolent character" within the meaning of section 10(iv). The parties engaged on the basis that the pursuer would repay the monies come what may. The payments did not reduce the pursuer's losses nor was it intended that they be of the nature of payments to account of damages (cf. Cantwell v Criminal Injuries Compensation Board 2002 S.C.(H.L.)1, per Lord Hope at paragraphs 34 and 37).

[37] Further, the payments were not payments "made ....by the responsible person". Only payments made by such a person fall to be taken into account by reason of section 10(iv). At common law it is clear that the author of a delict is not entitled to escape or reduce his liability in damages by reason of payments made to the injured person by some third party for benevolent or similar reasons (Henderson v Sutherland 2008 SCLR 219, per Lord Eassie at paragraph 36; Dougan v Rangers Football Club Ltd 1974 SLT (Sh.Ct.) 34).

[38] The second defenders are the only persons whose act or omission resulted in the pursuer's injuries and gave rise to their liability to pay damages to him (Administration of Justice Act 1982, sections 7 and 10). Neither the evidence I have heard, nor the Minute of Admission of Liability, entitle me to conclude that the first defenders (or the third defender) are (is) a "responsible person" in terms of section 10(iv). It is inappropriate and inexpedient for the Court to look behind the Minute of Admission of Liability to explore any extra-judicial arrangement between the second defenders and the other defenders (cf. Henderson v Sutherland, per Lord Eassie at paragraph 37). The payments do not fall to be taken into account by virtue of section 10(iv).

[39] In reaching these conclusions I have not overlooked the fact that when the payments were made by the first defenders to the pursuer they were made by the first defenders' agents, Peterhead Fishermen Limited, and that the company deducted income tax from the payments. On the evidence, the first and third defenders were unaware of that. It was common ground that the payments were not earnings or remuneration. The loan payments were not income, and income tax ought not to have been deducted. It was not suggested that the fact that income tax was erroneously deducted and accounted for was material to the determination of the true character of the payments.

[40] I should add that though the pursuer had averred that he was "working in the course of his employment with the first and third defenders", and counsel for the pursuer did initially, and tentatively, submit that that was the case (and that accordingly the payments were not to be taken into account by reason of section 10(e) of the 1982 Act) this was not a matter which was pressed by her. In view of the pursuer's self-employed status for tax and national insurance purposes, and his position as a share fisherman who took a share of the profits, had counsel for the pursuer not departed from this argument I would have required to have been persuaded that the whole facts and circumstances pointed to his being an employee (cf. Bruce v Clapham 1982 SLT 386; Noble v Osprey Trawlers 1998 SC 835; Todd v Adams 2002 2 Lloyd's Reports 293).

Net loss of earnings

[41] It follows that neither deduction falls to be made from the net earnings loss figure of £22,836.50. Interest should run on that sum from the date of the accident until 5 June 2008 at 4% per annum, and thereafter at the rate of 8% per annum until the date of decree. Net loss of earnings including interest is accordingly £28,043.

Loss of earning capacity

[42] Counsel for the pursuer submitted that the pursuer's continuing difficulties rendered him at risk of being out of work in the future. He coped at present because of the allowances which were made for him by his skipper and crewmates. She submitted that an appropriate award under this head would be £10,000. Counsel for the second defenders maintained that the pursuer was managing his work and that there was no reason to suppose that any continuing disabilities would prejudice this. He had worked for many years with the first and third defenders and that was likely to continue. He suggested that there was no proper basis for an award for loss of earning capacity.

[43] In my opinion, while the pursuer's continuing neuropsychological difficulties are mild, they are far from insignificant. The third defender spoke of the pursuer being slower and less helpful as a crew member than he used to be: if a fisherman who was taken on trial performed as the pursuer did, he would not be invited to join the crew. The third defender doubted whether another skipper would put up with the pursuer's problems.

[44] I recognise that a significant part of the problems which the third defender spoke to is the pursuer's continuing headaches (which gives rise to the need for him to lie down). His current headaches cannot be attributed to the accident. Nevertheless, the other remaining problems are material and do affect the pursuer's work performance.

[45] This is not a case where the pursuer is in secure employment (for example, with a local authority) and is performing his work to his employer's satisfaction. He is in a demanding occupation, where he often needs to work in adverse conditions. He depends upon the goodwill of others to obtain work, and to keep that work. His disabilities do create noticeable difficulties. In those circumstances it appears to me that he is at significantly greater risk of having periods of unemployment in the future than would have been the case but for the accident. I accept that the pursuer ought to be compensated for this disadvantage. In my opinion an appropriate award is £7,500.

Services

[46] The services claims were restricted to the period the pursuer was unable to work. During this period the pursuer was unable to do the household cooking or other domestic chores (such as cleaning and gardening) which he normally did when at home. He was unable to drive, and in particular was unable to take his mother shopping or his son to college. During the period the pursuer was off work the services which he would have provided to his relatives were provided by his wife, and in addition she had also to render services to him. The claims were advanced under both sections 8 and 9 of the 1982 Act, but there is a considerable overlap.

[47] In her evidence Mrs Smith estimated that the extra tasks she required to do took approximately 2 to 3 hours each day. Miss Davie suggested that the services award be based on an average of 2.5 hours per day at a net rate of £5 per hour. This resulted in a figure in excess of £3,000 which she rounded down to £3,000.

[48] Counsel for the second defenders did not quibble with the rate of £5 per hour - indeed proceeded on a higher net rate of £6.50. He submitted that one hour per day was more appropriate, and that account had to be taken of the fact that but for the accident the pursuer would have been at sea for a significant part of the 8 month period (and therefore not rendering the services claimed to have been lost). He proposed that the award should be £780, rounded up to £900 to allow for some interest.

[49] I accept that the pursuer would have been at sea for a significant part of the 8 month period and that accordingly the section 9 claim is diminished to that extent. However, the section 8 services which the pursuer's wife rendered to the pursuer (such as cooking for him, cleaning for him etc) were rendered for the entire period.

[50] I allow two hours a day for half of the period and one hour per day for the remainder. I use the pursuer's suggested net rate of £5 per hour. The resultant figure for services is (on the basis of about 250 days absence from work, and an average remuneration of £7.50 per day) £1,875. I allow interest on that sum at the rate of 4% per annum from the date of the accident until 5 June 2008, and at 8% per annum thereafter until the date of decree, which increases the award to £2,302.

Total damages

[51] Listing all these heads together the award of damages is accordingly as follows:

(1) - solatium, including interest, £18,849.

(2) - past wage loss, including interest, £28,043.

(3) - loss of earning capacity, £7,500.

(4) - section 8 and section 9 services, including interest, £2,302.

Total £56,694.

[52] I shall accordingly grant decree for payment by the second defenders to the pursuer of the sum of £56,694 with interest at the usual rate from decree until payment.