Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 190
A137/09	OPINION OF LORD BANNATYNE in the cause HELEN McGLONE Pursuer; against GREATER GLASGOW HEALTH BOARD Defenders: ________________

Pursuer: Smith QC, Hodge; Gildeas

Defenders: McLean QC, Davidson; R F Macdonald

14 December 2012

Introduction

[1] On 28 January 2008, when aged 28 and while continuing her academic studies in Geneva, the pursuer had a cervical smear which reported the presence of abnormal features. Following further investigations, she was diagnosed as having invasive andenocarcinoma of the cervix. On 30 May 2008 she underwent a radical hysterectomy, all conservative options for treatment having been excluded by the size of the tumour.

[2] The pursuer, in the present action, seeks reparation from the defenders for loss, injury and damage caused by the misinterpretation and misreporting of two cervical smear tests carried out on 15 December 2005 and 9 March 2006. The delay with the consequential radical hysterectomy resulting from said misinterpretation and misreporting is hereinafter referred to as "the index event".

[3] Liability for negligence was disputed by the defenders. The issue between the parties as regards liability was confined to causation. The details of the dispute are conveniently described by Lord Tyre, who heard a proof restricted to the issue of causation, and were as follows:

"The pursuer avers that if either of these tests (namely on 15 December 2005 and 9 March 2006) had been correctly interpreted and reported, she would have been referred for further tests and treatment. It would have revealed the presence of cancer which, at that time, was either pre-invasive or at least at a sufficiently early stage of invasion that it would have been conservatively treated by a method which preserved her fertility. The defenders admit that the test carried out on 15 December 2005 was misinterpreted though not that it was misreported. They admit that the test carried out on 9 March 2006 was both misinterpreted and misreported. They aver however, that the pursuer already had significant invasive cancer when the two smears were taken and that if her cancer had been diagnosed in 2006 the treatment would have been materially the same as it was in 2008, with the same impact upon inter alia her fertility."

[4] The issues on causation, before Lord Tyre, were focused in the following four questions:

"On a balance of probabilities:

(1) What report should correctly have been given of the cervical smear that the pursuer underwent on 15 December 2005 (N.B. it is agreed that the report should have been given by January 2006)?

(2) What medical management of the pursuer (including any further investigation and/or treatment) would have taken place as a result of such correct report being given, and when?

(3) What report should correctly have been given of the cervical smear that the pursuer underwent on 9 March 2006 (N.B. it is agreed that the report should have been given by 23 March 2006)?

(4) What medical management of the pursuer (including any further investigation and/or treatment) would have taken place as a result of such a correct report being given, and when?"

[5] Lord Tyre, on the issue of causation, found in favour of the pursuer and in particular made the following critical finding at paragraph 62 of his opinion:

"I therefore find, in response to the (second) and (fourth) questions set out (as above), that if a correct report of the pursuer's cervical smear had been given either in January 2006 or in March 2006, the medical management which would have taken place would have been treatment by Lletz or cone biopsy".

[6] Such procedures involve the excision from the cervix of that part of the tissue containing the transformation zone where the lesion is most likely to be located. These procedures do not compromise fertility. The excised tissue is then subjected to histological examination to assess the nature and extent of the lesion, including the extent of invasion, if any, of neighbouring tissue. The expectation is that in most cases the whole affected area will have been removed by the cone biopsy or Lletz procedure as the case may be, with excellent prognosis.

[7] In light of the defenders' admission of liability (subject to the necessary causal links being established) and his said finding at paragraph 62, Lord Tyre sustained the pursuer's first plea in law thus holding that the pursuer had sustained loss, injury and damage as a result of the negligence of the defenders' employees and was entitled to reparation therefor.

[8] Following sundry procedure the action came before me as a proof before answer on the issue of quantum, excluding the issues of surrogacy and fertility treatment. It is convenient to set out at this point the witnesses from whom I heard evidence in the course of the proof.

FOR THE PURSUER
1. The pursuer.

2. Alisha Haugh (who gave evidence in very short terms, regarding working with the pursuer in an orphanage in Vietnam).

3. Andrew Fisk (a headhunter).

4. Professor Tony Doyle (he spoke to overseeing certain parts of the pursuer's academic studies, particularly her PhD studies).

5. Adetola Oyegbite (a headhunter).

6. Dr William Soutter (a medical specialist in the area of gynaecological oncology).

7. Trevor Crown (a friend of the pursuer who gave very short evidence regarding the pursuer's employment in a bar).

8. Stephen Hay (an expert in tax matters, who prepared 6/93 of process).

9. Dr John Pollock, an actuary.

10. Dr Alan Carson, a consultant psychiatrist, who spoke to certain reports regarding the pursuer.

11. Dr Alison Hunter, a chartered clinical psychologist, who spoke to certain reports regarding the pursuer.

12. Dr Kenneth Walleron, a friend of the pursuer.

13. The pursuer's brother.

FOR THE DEFENDERS
1. Dr Sutaam Singh Ark, the pursuer's former G.P.

2. Dr Katie Nicholson, the pursuer's former G.P.

3. Dr Daniel Rutherford, an expert in practice as a G.P.

4. Dr William McKinlay, clinical psychologist, who spoke to certain reports regarding the pursuer.

5. Professor William Freeman, consultant psychiatrist, who spoke to certain reports regarding the pursuer.

6. Peter Davies, employment and rehabilitation expert.

7. Trevor Gilbert, recruitment consultant.

8. Ms Alison Hollywood, forensic accountant.

[9] Over and above the foregoing the parties agreed that affidavits from (see paragraphs 9, 10 and 33 of the joint minute) should be accepted as equivalent to the oral testimony of the makers.

[10] At the conclusion of the evidence, senior counsel for both parties (namely: Mr Smith QC for the pursuer and Mr McLean, QC for the defenders), tendered written submissions for which I am grateful.

The heads of claim
[11] In summary the pursuer sought damages under four heads:

(a)           Solatium.

(b)           Past wage loss.

(c)           Future wage loss.

(d)           Pension loss.

[12] There was no measure of agreement between the parties regarding any of these heads and the position was that they were very far apart regarding each head of damage.

Facts which were not in dispute
[13] In order to set the scene for consideration of the various issues relative to damages, I would intend at this stage to set out the factual background which was not in dispute. When making reference to productions I will do so by reference to their process number and tab and page number in the core bundle (which was available on computer).

(a) The pursuer's Academic Background
[14] The pursuer's curriculum vitae is conveniently set out in 6/17 of process (tab 16 p860 to 862). In consideration of the issues before me of particular note in that curriculum vitae were the following:

(i) Her first class honours Master of Science degree in physics and applied maths awarded by the University of Glasgow in 2003.

(ii) She had undertaken and completed a four year programme of research for a PhD. She had been awarded her doctorate by Glasgow University in the winter of 2009. As part of her research for that PhD she obtained a placement at the Couseil Européenne Pour La Recherche Nucléaire, more commonly known as CERN in Geneva.

(iii) The subject of her thesis for her MSci was Physics in the Financial Markets using C and C⁺⁺.

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(iv) Her PhD Thesis was titled Neural Network Analysis in Higgs search for tt H, H à bb and Tag Database Development for ATLAS.

(b) The pursuer's work experience prior to the index event.

(i) She was a full time student for almost the entire period after leaving school until the index event.

(ii) She worked in a bar for a short period.

(iii) She at no point in her career ever worked in any capacity in the City of London (hereinafter referred to as "the City"). In particular she had never been an intern in the City.

(c) The pursuer's position at the date of the Index Event

[15] She was residing in Geneva; she was continuing her research at CERN; she was due to complete her PhD thesis in or about September 2008. At that time she had made no applications for employment. In particular she had made no applications for any job in the City or for any job outwith the United Kingdom in the financial sector. At that time she had not contacted a head hunter in relation to obtaining employment as a Quant.

(d) The pursuer following the index event made job applications to the following:

(1) Morgan Stanley, 25 Cabot Square, Canary Wharf, London. E14 4QA.

(2) Credit Suisse, One Cabot Square, Canary wharf, London, E14 4QJ.

(3) UBS, 100 Liverpool Street, London, EC2M 2RH.

(4) Deutsche Bank, 1 Great Winchester Street, London, EC2N 2DB.

(5) J P Morgan, 125 London Wall, London, EC2Y 5AJ.

(6) Bloomberg, 50 Finsbury Square, London, EC2A 1HD.

(7) Goldman Sachs, River Court, 120 Fleet Street, London, EC4A 2BE.

(8) Merrill Lynch, 2 King Edward Street, London, EC1A 1HQ.

(9) Royal Bank of Scotland, Gogarburn, Edinburgh, EH12 1HQ/135 Bishopsgate, London, EC2M 3UR.

(10) BNP Paribas, 10 Harewood Avenue, London, NW1 6AA.

(11) Society General, SG House, 41 Tower Hill, London, EC4N 4SG.

(12) Barclays Capital, 5 The North Colonnade, London, E14 4BB.

(13) Foreign & Commonwealth Office, King Charles Street, London, SW1A 2AH.

(14) Warchild, 5-7 Anglers Lane, Kentish Town, London, NW5 3DG.

(15) Secret Intelligence Service.

[16] Applications (1) to (12) were for various positions in the City. She was not successful in any of her applications. Only two of the said applications resulted in interviews, namely: Goldman Sachs and JP Morgan. Only the interview with JP Morgan was on a face to face basis and feedback was obtained from said interview. The feedback from that interview was in summary in positive terms:

(e) The only work which the pursuer has done since the index event has been of a voluntary nature largely involving working with orphan children abroad. She has carried out such work in Kenya, Vietnam and Morocco. In particular she has worked as follows:

(1) 29 November 2008 - 30 December 2008: Vietnam (Global Volunteers Network).

(2) 29 April 2009 - 22 May 2009: Kenya (Global Volunteers Network).

(3) 27 December 2009 - 22 January 2010: Morocco (Original Volunteers).

(4) 22 March 2010 - 30 March 2010: Morocco (Original Volunteers).

(5) 14 May 2010 - 17 June 2010: Tam Ky Orphanage, Vietnam (independently).

(6) 23 December 2010 - 20 January 2010: Morocco (Original Volunteers).

(7) 18 September 2010 - 11 November 2011: Vietnam (independently).

In addition to the above the pursuer has also regularly holidayed abroad.

The type and extent of the voluntary work which the pursuer has carried out on said occasions was a matter of dispute between the parties.

(f) The pursuer attended in or about August 2010 a course at the LSE in international relations, but did not complete the course. She completed a course in similar subjects at the same institution in July 2011.

Definitions
[17] At this point it would be appropriate to define certain terms to which reference will be made later in this opinion.

(a) Tier One Bank: Goldman Sachs, JP Morgan, Deutsche Bank and Barclays Capital.

(b) Tier Two Bank: HSBC, Standard Chartered, Royal Bank of Scotland and Commerzbank.

(c) Quant analyst (hereinafter referred to as a "quant"): the role of such is to assist the front office team in pricing, hedging, modelling and implementation of financial products. It involves development of algorithms and high level mathematical and computer skills are essential to this work.

(d) Quant trader: is the same as the above with an element of trading being involved.

(e) The front office of an investment bank involves: trading; sales; structuring; research; origination and quantitative analysis.

(f) The mid office of an investment bank involves in particular the area of risk management.

The Pursuer's Pre Index Event Personality, Character and Mental Health and the Issue of Credibility and Reliability

[18] This claim raises a series of particularly complex and unusual problems in particular in relation to the issue of loss of earnings. The background is this: a pursuer who seeks damages for injuries sustained as she came towards the completion of her academic studies and before she had entered employment. In addition she contends that the injury occurred immediately before she was to apply for a job (which she contends she would have undoubtedly obtained) as a quant. Moreover, it was her position that this would have lead to a highly successful, extremely well paid and lengthy career as a quant, involving the chance of working abroad under favourable tax regimes. Finally she put forward the possibility of working for a hedge fund with consequential stratospheric earnings. Her position was that she was at the date of proof unfit to do anything and had no residual earning capacity. It was put forward on her behalf that damages in this case amounted to approximately £15 million to £20 million.

[19] The defenders' liability has been established, they say, however, that her losses are to be measured in thousands and not in millions. Their position is that the pursuer's claim is grossly exaggerated. It would, I believe, be correct to say that no single aspect of the position advanced on behalf of the pursuer in support of her claim is unchallenged on behalf of the defenders. However, their starting point is this: that the pursuer was not a credible and reliable witness. They submitted that she had underlying personality problems, which would have prevented her pursuing a career as a quant, even had she not sustained the index event. In addition it was argued that she had sought to manipulate both the court and expert witnesses, who had prepared reports, in order to maximise her claim for damages. It was Mr McLean's position that in assessing the proper measure of damages the court had to consider whether all of her current presentation post-dated the index event and was caused by the delay in the diagnosis of cancer.

[20] Mr Smith's primary position was that the pursuer's evidence was of no great importance to the case. He hardly dealt with it in his submissions and his position was that I need have no real regard to it.

[21] Looking first at these two broad positions. It is my clear view that the pursuer's credibility and reliability is a primary consideration in reaching a proper assessment of damages. Moreover, as was submitted by Mr McLean, the pursuer is more than a mere curriculum vitae and regard has to be had to what on the evidence was established regarding her pre-index event mental health, character and personality, as that is a significant part of the factual matrix.

[22] Mr Smith's position was that if despite his primary submission, I intended to have any regard to such issues, then he contended: that there was absolutely no reason to doubt her credibility or indeed her reliability.

[23] In development of that position, he went on to argue that: the only successful demonstration that she was factually wrong was when her bank statement showed that she had been in Glasgow, when she had said she had not. This was a simple error, of no importance to the case at all. All of the pursuer's evidence in so far as it was important was capable of being established by reference to documents: for example her academic record, her illness, the number of job applications and their responses. None of that depends upon the veracity of the pursuer; but in fact, despite the repeated promises by the defenders to demonstrate that she was not to be trusted, that did not materialise.

[24] During the course of the proof he submitted there had been many statements made about the pursuer which were frankly wholly unsupported: for example that she "exaggerates" there had never been any specification of what she exaggerated about; that she had not co-operated with the defenders, he pointed out that it should be noted that if she failed to do something that was reasonable, then the court had many methods of compelling her to do it. It had been a constant theme by the defenders that they were "entitled to test the pursuer's evidence" on account of the high value of the case. It ought to go without saying, that the conduct of litigation was not dependent on its value. It was one thing to "test" a pursuer's case, but quite another to accuse her of exaggeration and secrecy without any proper foundation.

[25] The pursuer's position in relation to her pre-existing personality and character was a short one and was put in this way: the pursuer's personality and character exhibited nothing out of the ordinary prior to the index event. In addition it was submitted that there was nothing of significance in her medical history so far as her mental health was concerned. It was the position of Mr Smith that her personality, character and mental state had been altered to a very material extent by the index event. Mr Smith contended that all of the symptoms which had been exhibited by the pursuer since the index event and which continued to be exhibited by her, flowed from the index event.

[26] Mr McLean's position was entirely to the contrary effect. In the course of his address Mr McLean developed a number of themes regarding the pursuer's pre-accident personality, character and mental health.

[27] The first of these was this: due to her pre-existing character and personality the pursuer would have reacted in the same way to the Lletz procedure as she did to the treatment which she underwent. I have no difficulty in rejecting this submission. There was no evidence to support it and both Dr McKinlay and Professor Freeman gave evidence to the opposite effect. Dr McKinlay said: "... that if the pursuer had had the Lletz procedure she would have got over the matter in a number of months."

[28] The second broad theme was this: certain of the symptoms which were exhibited, as at the date of the proof, arose not from post traumatic stress disorder or adjustment disorder, but were due to personality traits of the pursuer which had existed prior to the index event. It appeared to underlie these submissions that there was therefore no causal link between these symptoms and the index event.

[29] This argument arose out of the pursuer's behaviour in the course of the proof, which behaviour was witnessed by various medical experts for each side who had been given permission to be in court, while she gave her evidence. Prior to the proof the experts on both sides had been in broad agreement that the pursuer was suffering from either post traumatic stress disorder or adjustment disorder. The defenders' experts' views changed following seeing the pursuer in court and their view became that not all of the pursuer's ongoing symptoms were due to post traumatic stress disorder, or adjustment disorder, but resulted from pre-existing personality traits. Although the defenders' experts' views changed following upon seeing the pursuer in court, it appears to me that they continued to believe that there was a causal connection between the pursuer's behaviour and symptoms, and the index event.

[30] It appeared from the evidence of Dr McKinlay that there was an acceptance that whatever label one placed on the pursuer's ongoing symptoms, as exhibited in court, when asked if it was a consequence of what had happened to her, it was his position that there was an "obvious link to it".

[31] Equally Professor Freeman, in his evidence, said this:

"Her personality traits - her drive, enthusiasm, view of herself as someone special had pre the event served her well. However, now the same personality traits no longer served her well as persons with such personalities reacted badly to adversity."

[32] I took from this that he too was accepting that the pursuer's present symptoms resulted from the effect of the index event on her pre-event personality and character. Accordingly, looking to their evidence, I am satisfied, that even if certain of the pursuer's present symptoms do not result from post traumatic stress disorder or adjustment disorder but are due to personality traits, they are nevertheless causally connected to the index event. They have become patent and negative in their impact upon the pursuer as a result of the index event. In my view, whether the present symptoms are due to post traumatic stress disorder or adjustment disorder or the effect of the event on her pre-existing personality they sound in damages.

[33] The third broad theme developed by Mr McLean was this: the pursuer prior to the index event had certain mental health problems and, in addition, there were certain aspects of her personality which pre-existed the index event and these formed the background when considering the nature of any ongoing mental health difficulties suffered by the pursuer and their prognosis. These factors also formed the context when considering the prospects of the pursuer, even if the index event had not occurred, in obtaining and retaining a job as a quant. It was his position that there was a pattern of pre-existing mental health difficulties and a particularly difficult character and that these factors, even if the index event had not happened, materially lessened the pursuer's prospects of obtaining such employment and materially lessened the prospects of her retaining such employment.

[34] Mr McLean developed his submission in terms of this theme on the basis of a number of detailed arguments:

[35] The primary argument developed by Mr McLean was this: the pursuer had a history of pre-index struggle to stay in control of her mental health and that this was a highly significant factor when considering a number of heads of damage.

[36] This submission was made under reference to the following points contained in his written submissions:

"8.12.99 - sitting exams, aches and pains, letter for University - 7/81, p 15 - ms 4115. It is submitted that the pursuer's explanation that the problem was excessive coughing during lectures and frightening customers in the baby clothes department where she worked, leading her to seek a letter to her University, was contrived and unlikely.

16.6.00 - needle phobia - GP notes 7/81, p 15, ms 4115 - discussion of referral. Such a discussion was regarded by Dr Rutherford as a rare event, even to be considered for referral.

10.10.01 - signs of depression when missing lectures etc, grades slipping, weepy - St John's Wort - 7/81 p 14, ms 4114. Dr Rutherford and Professor Freeman gave evidence that St John's Wort was a serious herbal medication for mood disturbance which might have interactions with other medicines.

22.5.02 - affected by mother's condition - letter for University required once more - 7/81 p 14

7.5.03 - Anxious and unable to relax - try Half-Inderal - 7/81 p 14, ms 4114

16.6.03 - issues with sore hand at exam time - went to GP - 7/81 p 14, ms 4114

30.10.03 - nervous re smear - 7/81 p 14, ms 4114

2005 - admittedly very anxious re internal examination - transcript, 7/85, p5/11 - ms 4168

'I was and am an anxious patient' - see 7/85, p5/16, ms 4170

Re Bigrigg - upset the pursuer - she wanted reassurance and felt rushed - 7/85, p5/18 ms 4175 and foot 5/21-22 - ms 41778-9.

Ultrasound - Dr Cochrane notes need for prolonged discussion - 7/85, p6/72, ms 4264

2006 - anxiety about cold coagulation - 7/85, p5/16, ms 4173

20.2.06 - demands for valium before a relatively minor process - see Gartnavel notes, 7/4, pp 3, 4, 5, 7 - ms 2541, 2542, 2543, 2545. The pursuer acknowledged nervousness about the Gartnavel procedure in cross - 7/85 p6/28, ms 4222 - 'just the nerves' - p6/30 ms 4224

Generally, there are lots of records of nervousness in Sandyford records - 7/85, p6/32 - 4226

The pursuer's hospital anxiety was such that she could not watch medical dramas on television - she was not that sort of person - 7/85, 6/33, ms 4226-7

She acknowledged a need to ask for more reassurance, ask for help, medication to make herself more comfortable - see 7/85, p6/37, ms 4231.

This led to her request for very substantial amounts of valium before cold coagulation - 7/81, p31 - ms 4113

13.10.06 - 'Down' in Geneva - advised to try Citalopram and referred to Moodjuice website - 7/81, p13 - The prescription of citalopram is at 7/81 p11, ms 4111 - the pursuer did not doubt that this happened at the first Proof (7/85, p6/78, ms 4269), but had recovered a memory of it for the second Proof in which she tried to play down the seriousness of the mood-related issues here. The Court invited to treat that explanation sceptically.

Prescriptions of citalopram anti-depressant in June and August 2007 - the pursuer asked for, and was given, two eight week prescription for anti-depressant. She tried to explain these away as her just getting something else along with other drugs, but in fact no other drugs are recorded as ordered at the same time - see 7/81, p11, ms 4111.

Finally, when she got a non-standard smear result in Geneva, she panicked - see 7/85 p6/110-111 - 'it was just in my nature ... I think it was my personality' ms 4301-2."

[37] The expert evidence on this issue was as follows: Dr Carson, one of the pursuer's experts, commented on this issue as follows: her symptoms were at the mildest end of the spectrum; they were not causing her any disability, she was able to cope well as evidenced by her academic performance and the sorts of problems she had sustained affected 10-15% of the population. Although he did accept in his report 6/39 of process at tab 3 p1128 as follows: "Nonetheless I do think this represented a pre-existent tendency to anxiety disorders". Dr Harper, the pursuer's other expert in this area, opinion was in similar terms namely, she attached little real significance to the pursuer's pre index event mental health history.

[38] Most tellingly Dr McKinlay who gave evidence on behalf of the defenders came to the same conclusion. His position was that he did not believe the pursuer had suffered from any substantial psychological difficulties in the past and that there was nothing of note in her history. He again thought about one fifth of persons of the pursuer's age would have had similar anxiety symptoms. In support of there being nothing significant in the pursuer's psychological history he also pointed to her academic achievements.

[39] The last witness on this issue was Professor Freeman. His figures as regards the percentage of the general population who were likely to have similar medical records so far as psychological difficulties were concerned was not that different from those given by Dr Carson and Dr McKinlay. His description of her pre-index psychological condition was that the records showed a lack of psychological robustness.

[40] Overall, it appeared to me that the evidence was that the pursuer's pre-event psychological history was of no real significance. If Professor Freeman in his evidence was suggesting that it was of any greater significance (and I do not believe that he was) then I prefer the evidence given by Doctors Carson, Harper and McKinlay to that given by Professor Freeman. In so doing I believe it is of some materiality that there were three experts who came to the same view and accordingly there was considerable support for the view that the pursuer's psychological history was of little real significance. It also seemed to me to be of some significance that one of the experts who had come to this view, was one of the defenders own experts namely Dr McKinlay. Lastly it appeared to me that their evidence fitted in to the general evidence to the effect that the pursuer had always functioned well up to the date of the index event. In particular her academic record prior to the index event was of such a nature that it did not appear to me that if she had had any significant psychological problems she would have been able to be such a high achiever.

[41] Mr McLean in the course of his submissions founded particularly on the fact that on the statistical evidence given by the expert witnesses only a minority of persons would have had a medical record exhibiting mental health issues of the type set forth in the pursuer's medical records. This is of course mathematically the case, however, what appears to be more important is that overall the experts' position was that nevertheless there was really no significance in these records. There was no consistent and prolonged pattern within the pursuer's medical records and history showing any real psychological difficulties.

[42] I accordingly hold that when approaching consideration of solatium I do so on the basis that the pursuer's pre-event psychological history is of no real significance. In addition when considering whether the pursuer would have obtained a position as a quant and thereafter retained that position I have approached that matter on the basis that her psychological background is of no real significance. I accordingly have rejected the defenders' submissions that her mental health history would have been a significant factor in lessening her prospects of obtaining or retaining a job as a quant.

[43] The second detailed branch of this argument related to various alleged aspects of the pursuer's pre-event personality. It was submitted that these various factors had relevance not only regarding the issue of causation as earlier alluded to but also in relation to her contended position that she would have become a quant and been successful in that post. It was submitted that these traits would have made it significantly more difficult for the pursuer to obtain and retain a job as a quant.

[44] The first of these alleged aspects of the pursuer's character, founded upon by Mr McLean, was this: he submitted that an appropriate description of the pursuer's pre-event character was ditzy. As I understand it, he was suggesting by use of this word, that she was silly and scatterbrained and thus not fit to be a quant, a job which on all of the evidence, would be unsuitable for a person with such a character.

[45] I do not believe that the evidence in any way supports this assertion. The pursuer pre index event, was someone who in my view had done extremely well at school, done extremely well in obtaining a first class honours degree and had thereafter done well in her PhD research. Someone of that academic background in my opinion is neither silly nor scatterbrained.

[46] Mr McLean in support of his position first put forward a single answer from the pursuer, where she explained how she had acted at a post-incident interview and said that she had on that occasion been ditzy. I take nothing from that particular answer. The submission appears to me to take one particular description by the pursuer of herself and leave out of consideration her whole background. In any event it related to a period post-index event. There was nothing in this answer when looked at in the context of her academic background which would have justified my holding that she was ditzy.

[47] Mr McLean went on to submit that there was evidence that prior to the event the pursuer had been very talkative. He described this as one aspect of a ditzy personality. I cannot see that it follows from being talkative that one is therefore ditzy. Nor do I think being talkative is of itself a negative personality trait.

[48] I have no difficulty in rejecting the submissions made on behalf of the defenders that the pursuer could, prior to the index-event, be properly described as someone who was ditzy.

[49] Thirdly Mr McLean submitted that the pursuer's evidence showed a persistent naivety.

[50] From the whole evidence I formed the view that the one thing the pursuer was not, was naive. Rather I gained the impression of a woman who was driven, highly competitive, calculating, committed to getting on and highly focused.

[51] The evidence showed that the pursuer came from a modest background, went to a school in which high intellectual achievement was not commonplace and who nevertheless did extremely well at school and at university.

[52] During her university education she chose courses to fit in with her long term aim to work in the City, for example her MSc thesis and her work at CERN.

[53] I noted that she was someone who was always prepared to stand up for herself. Examples of this were her reaction to particular matters when she was working in a bar while a student. There was also the fact that she was prepared to stand up to the administration in CERN when she thought that it was dealing unfairly with her.

[54] Overall I gained the impression that she was someone who knew how to get on in the world and was committed to doing so.

[55] I do not feel that any of the examples founded upon by Mr McLean in his submissions when looked at on their own or taken cumulatively support a view that the pursuer was someone prior to this event who was naive.

[56] One of the examples referred to by Mr McLean was the pursuer saying in evidence that she was influenced in seeking employment in the City by Hollywood movies. He suggested that this was a naive approach. The pursuer it appears to me was not saying that this was her only reason for going into the City. In any event many people choosing a career to some extent are influenced by something they have read or seen on TV or in the cinema. What they have read or seen may turn out not to be wholly accurate. It, however, does not follow that they are naive in that having influenced them.

[57] Another example Mr McLean gave of her naivety was that her view on foreign affairs seemed to be formed by having read the book the Constant Gardener by John Le Carré. The pursuer did refer to this in evidence, however, it is going too far to suggest that the pursuer's whole view on foreign affairs was based on this one book.

[58] Equally he said that she divided people into gods and villains and this was again very naive. It is true the pursuer, in the course of her evidence stated fairly extreme views about people she believed who had assisted her post-event medical condition and those she regarded as not having assisted her or having caused her medical problems. This does not, however, show pre-existing naivety, rather when the evidence is looked at this is merely one of the psychological effects of the index event and of the litigation which has followed.

[59] Another example of naivety he gave was what he described as her rejection of other areas of learning. This was based on a single answer where the pursuer said she was not interested in astronomy or in meeting an astronaut. I am unable to see why that points to a wholesale rejection of other areas of learning or of naivety. It shows in my view no more than a lack of interest in astronomy and astronauts.

[60] Overall I believe that there was nothing in the pursuer's character pre-event to justify a characterisation of her as naive.

[61] The next element in the pursuer's alleged pre-event personality to which Mr McLean directed my attention was this: the pursuer's tendency to react strongly out of frustration and irritation.

[62] Mr McLean in support of this submission relied on the following evidence. (I have quoted the detail of the evidence relied upon by the defenders as contained in their written argument).

"She gave evidence of getting 'B's in English Literature at Glasgow University (ms 1311) and added that it 'used to frustrate the life out of me' that the English department hardly gave any 'A's. This long-term aspect of her personality was hinted at by her close friend Mr Walleron during his evidence (day 7) when he described her in chief as 'bolshie'. The evidence of David Crown (day 10) was that after the pursuer had left Walkabout in 2005 she did not speak to him for months, although they had previously been friendly. Her lengthy history of exasperation with Doctors at the Sandyford Clinic when she felt she was not getting the attention she deserved was chronicled at the first proof (see eg. day 6, page 55, ms 4249) and recorded by Dr Carson when he first met her - she found the staff there 'dismissive' (ms 1116). Her lengthy history of alleged fury at Dr Ark throughout her time as his patient was chronicled in this proof (day 4). Her continued tendency can be traced in the way in which she fell out with GP-Plus when, through Dr Benade, they questioned in careful detail the wisdom of continuing to give her benzodiazepines (day 5). Minor things could trigger irritability, such as her comments on day 6 about the trip to Canada with her friend Darren. She had at that stage only received the first result of a non-normal smear, yet argued with Darren (her best friend at CERN, according to her evidence, but not a witness) because she was 'crappy and irritable' with him. As she put it, 'People were saying, 'calm the hell down''. She described her intense irritability with her family in this period, including her father, to whom she was said to be incredibly close (he was on the pursuer's list of witnesses, but never actually called). The same irritability can be seen in the reaction to what the pursuer now accepts was an inoffensive comment from Dr Carson at her first interview with him, discussed on day 6 (the pursuer made some comment in this context of being 'the eye of the tiger'). This high level of irritability can be seen in other, non-medical settings, both before and after 2008 - there are the pre-2008 e-mail threads over clashes on minor administrative matters at CERN in which she felt it necessary to involve her Professor (day 4) (August 2007 - 'not a happy Helen' - 7/63 p185, ms 3445, and p 182, ms 3442 on travel claims), and there is her account of an interview at the Foreign Office after 2008 when she was so incensed by what she heard one of the other participants say that she 'kicked off' in a very major way, her explanation to the Court for that being, tellingly, 'it was just my personality' (day 2, am). The Court is invited to hold that that was indeed the case. The same tendency was seen in the evidence of Alisha Haugh (day 7), who spoke of the pursuer's fury at her sister in Vietnam in 2011 (and this was apparently not the only such falling-out there had been). The revenge she took in evidence in chief on her former boyfriend, Ian, in the witness box, disclosing uninvited, salacious and irrelevant details about his subsequent personal life, were typical of this aspect of her personality - yet she denied in cross-examination that she wished him anything but luck and happiness, noting that the details of the case would not appear in the Geneva press. When the pursuer was asked about her pre-diagnosis attitude to unjustified criticism and disappointment (day 4), she seemed to take the view that she never was criticised unjustly and if disappointed she just carried on".

There are within the said evidence perhaps indications of a possible personality trait or difficulty of this type. However the evidence as a whole does not in my view go beyond supporting a conclusion that this was a personality trait but it had not caused problems prior to the index event.

[63] If there was a pre existing substantial problem of this type I would have expected there to be some clear trail of evidence in her academic records to that effect. There is nothing in these records to support this. There is for example no sign of disciplinary problems in her records arising from such behaviour.

[64] Professor Doyle who was her director of studies during part of her period at university gave no evidence to the effect that there were problems with her. The emails which referred to minor arguments which she had had with the administration at CERN in my view amounted to very little and were no more than a normal exasperated reaction to such difficulties. Professor Doyle who was involved in this chain of emails appeared to make nothing of them.

[65] Mr McLean referred in his submissions to the pursuer giving evidence that getting Bs in English literature at university: "frustrated the life out of me". Mr McLean placed some reliance on this answer. Again this appears to amount to not much more than the normal reaction of a highly competitive student who was used to getting grade As and in English only got grade B.

[66] Mr McLean also relied on the evidence of Mr Crown, who was a friend of hers who had dismissed the pursuer from a job in a bar. Thereafter the evidence was to the effect that the pursuer had not spoken to him for sometime. Again this seems to me to amount to no more than a fairly normal reaction to feeling let down by a friend. Many of the examples relied on by Mr McLean related to the period post index event and in my judgement evidenced the effect of the index event and showed nothing about her pre index event personality.

[67] The only example of behaviour which perhaps supported a more serious problem was her "kicking off" in a very major way and explaining that this was just her personality. However, the balance of evidence presented was that this was a controlled trait which had in no real sense affected the pursuer pre index event. This outburst I note post dated the index event.

[68] The next aspect of the pursuer's alleged pre-existing personality to which I was directed by Mr McLean was her longstanding view that she regarded herself as something special.

[69] As regards this particular submission it is my clear view that all of the pursuer's answers and her entire presentation in court showed that she has always had a very high opinion of herself both as regards her intellectual abilities and as regards her appearance. She clearly has always thought she is someone very special, if not truly exceptional. She clearly prior to the event would have presented as a highly self confident person. She clearly believed prior to the event that she would get on in life and perhaps to some extent given her academic record felt almost entitled to get on.

[70] However, I am not satisfied that this would necessarily have held her back in a job in the City, such as being a quant. It was the evidence of all those who spoke about life in the City and specifically the job of a quant, that such a job, involves coping with high degrees of pressure, is extremely demanding of one's time and very demanding intellectually. In that type of setting it would appear to me that self confidence, perhaps even arrogance would have stood the pursuer in good stead. If anything is clear in this case it is this: life in the City is not for shrinking violets. I do not believe that the evidence showed that this personality trait was out of control, which may have led to difficulty in any future employment.

[71] The final point made by Mr McLean was that: the pursuer's personality caused her to be manipulative and to exaggerate and therefore she was not a credible witness.

[72] In relation to the issue of exaggeration Mr McLean relied on the following, which he detailed in his written submissions:

"The finding of Lord Tyre at the first Proof (para 52 of his Opinion, ms 541-2) that in seeking to get the attention she felt she needed and deserved at the Sandyford Clinic the pursuer was not above presenting Dr Bigrigg with a significantly inflated account of the effect of her symptoms. The defenders do not in this Proof seek to attack that finding in any way. The Court can read the transcript of the relevant evidence at ms 4252-4264). The exaggeration continues in the present Proof. There is, by way of example, the extraordinary descriptions of her operations in the summer of 2008, including graphic descriptions of being dragged kicking and screaming into the operating theatre (as stated in evidence in chief) with all the nurses being in floods of tears, as told to Dr Carson, but which he found to be 'metaphorical', in other words exaggerated when the facts are viewed objectively (see his evidence on day 12, under reference to his report at ms 1118). There was the extraordinary description of her having to haul herself up to her house in Geneva by crawling up the railings and of her looking like a famine victim after radiotherapy (day 1). All of these behaviours continue with her assertions on repeated occasions that the NHS 'refused' to offer treatment for her after she returned from Geneva, which are, it is submitted, plainly unjustified, exaggerated and false. When one looks at the relative delays objectively, as Dr Rutherford, the GP expert called for the defenders, did (day 13), it is plain that they are all generated by the pursuer, who first failed to tell her GPs about her cancer and treatment and then declined to co-operate with their attempts to assist, e.g. by letting her solicitors provide a mandate to the GP, by allowing the GP to see any Swiss medical documents and even by allowing her blood pressure to be taken (see generally ms 4107 and 4123-37). It will be recalled that Dr Ark asking her to remove her cardigan so that he might take her blood pressure in March 2010 was described by the pursuer as if he had attempted an indecent assault (day 4). The same language, of violation, has been used by the pursuer to describe attendance at a Commission to recover documents, being medically examined for the purposes of her claim or generally having to take part in the process of litigation. It is submitted that this thread of exaggeration makes the pursuer entirely unreliable as to the true measure of what she describes."

[73] The reply on behalf of the pursuer was that there was no justification for holding that any part of the evidence was exaggerated.

[74] I take as my starting point the finding of Lord Tyre. Thereafter I believe the examples in the evidence relied upon by Mr McLean in the course of his submissions are evidence of material exaggeration by the pursuer in the course of her evidence before me.

[75] The pursuer's evidence throughout, it appeared to me, when speaking about the effects on her of the index event, was materially exaggerated.

[76] Given that the pursuer's evidence, can be said on occasions to have been the subject of exaggeration, I have when considering her evidence, where challenged, approached it with some degree of caution.

[77] As regards manipulation Mr McLean offered five examples, which were:

(a) The pursuer suggested to Professor Doyle, her supervisor, in connection with her application for the Openlab course that she might do some voluntary work in 2006 (ms 3517-6) - on her own unashamed evidence in the witness box she plainly never intended to do this, but thought it would look good and might help her get what she wanted. From Professor Doyle's evidence (day 9), he was completely taken in by her. While Drs Carson and Harper were quite relaxed about this, Professor Doyle evidently was not and felt that it was not acceptable that his good faith should be so abused. It is submitted that the Court should take note not only of this pre-diagnosis evidence of untrustworthiness but also of the pursuer's blasé attitude to the deception itself when giving evidence about it.

(b) The pursuer gave evidence on day 2 that before her interview at JP Morgan in January 2009 she contacted Maxine, who was handling the arrangements, to get the interview appointment moved. She explained, again without embarrassment, that she thought she moved the time of it just to get noticed, possibly using her grandfather's funeral as a pretext. She was again unabashed by that.

(c) Talking about her SIS interview notes, she stated that at interview "of course I came up with a good reason" - the implication being, again, that she would come up with an explanation which would secure what she wanted, rather than a true answer, which perhaps might not.

(d) In 2008, the pursuer had put together multiple cvs for jobs which, in light of her evidence, were often false, because she sees nothing wrong with presenting herself at any given moment in two completely incompatible lights. On the one hand, she said to the Court at Proof with reference to her academic success at LSE in 2011 that she has 'still got it, baby' - on the other hand, she apparently wishes the Court to treat her as a helpless invalid fit only to cuddle babies and that not for very long each day. She broadly has no hesitation in submitting job application cvs (6/63 of process, ms 1841ff) - suggesting far more dynamic personal contributions than the facts as she now expects them to be accepted warrant - See, as a particular example, her personal statement at 6/63 (41), ms 1962.

(e) In her evidence on day 4 to try to explain away the GP notes entry about missing lectures apparently through depressive problems, she explained that she was always missing lectures - sometimes you have to do it 'tactically'. Just what the tactic was, was not clear, but again it is submitted that the pursuer was not only happy to manipulate the University system as it suited her but unabashed about that.

[78] I accept that the examples at (a), (b), (c) and (e) show some minor degree of manipulation by the pursuer. As regards paragraph (d) I believe that this is a more significant point involving some degree of manipulation and exaggeration on the pursuer's part. It appeared to me that the picture the pursuer presented of really not being able to do anything and not being likely to be able to do anything in the future did not fit with the evidence about the period post index event relative to her making applications for jobs over a wide area, seeking to obtain qualifications, her major travel schedule and the work she had carried out abroad. I will look at this again in the context of residual earning capacity.

[79] Another factor which I believe the pursuer exaggerated related to fatigue. This, as I understood her evidence, she was putting forward as a major continuing symptom. However, as I watched her over a number of days in the witness box she displayed no marked fatigue.

[80] In addition, she complained of a serious bowel problem and I was warned of the necessity of having to perhaps rise in order to accommodate this problem. However, this in fact was not a feature of her time, while in the witness box.

[81] Accordingly there are aspects of the pursuer's evidence which cause me concern. It is difficult to assess the extent to which the pursuer's exaggeration is conscious or unconscious. Looking to the whole evidence I believe that on balance it is unconscious and perhaps another symptom of her ongoing psychological problem.

[82] In summary I do not believe her pre-accident personality would have impacted materially in a detrimental way in so far as obtaining and retaining a job as a quant is concerned.

[83] However, I do accept there is a material degree of exaggeration in certain parts of her evidence, which tends to render certain parts of her evidence unreliable and accordingly I have had to bear in mind this consideration when approaching her evidence.

[84] Lastly, before leaving the pursuer, it is appropriate that I should comment on the behaviour of the pursuer in court. Before dealing in detail with this I should set out that it was not submitted on behalf of either party that her behaviour was in any way an act. The position of all the experts was to this effect: that this behaviour was a manifestation of post traumatic stress disorder, adjustment disorder or personality traits (made negative by the index event). Nevertheless, for reasons I will detail later, I believe the way she behaved in court is of some relevance.

[85] My findings in relation to the pursuer's behaviour in court are as follows:

1. The pursuer in her answers and in her behaviour in court exhibited in the clearest possible manner the effect of the litigation upon her. She exhibited a profound hatred for all those doctors and medical staff she blamed for her misdiagnosis, the NHS generally, the solicitors for the defenders and both counsel who were acting for the defenders, in particular Mr McLean, were clear objects of utter detestation on the part of the pursuer. I have never in my experience witnessed such a level of hatred from a pursuer directed in this way. It was at all times clear from her behaviour and answers that she resented all aspects of the court process and was clearly furious that there was a court process at all. The defenders in her mind were guilty of the most heinous offences and in her view should have admitted such guilt and paid her such damages as she cared to claim. She appeared throughout her evidence unable to approach the case in any rational fashion. These considerations it appeared to me form the underlying basis for the exaggeration to which I have referred.

2. She showed a complete and utter disrespect for the court throughout her evidence and when sitting in the court watching proceedings.

3. She was disruptive throughout the case, to the extent that after two incidents outside the court which were reported to me by my clerk and having spoken to both senior counsel, in order to satisfy myself, that in her absence she could be fully and properly represented, I formally stated in court that should there be one further incident I would have her removed from the court and the court building and not allow her to further attend the proof. I have never in my career come anywhere near considering making such an order, which I accept is extremely unusual. That I reached the point of issuing such a warning in court perhaps gives an idea of how difficult a witness the pursuer was and how particularly difficult her behaviour was to deal with by the court.

4. I formed the clear view that on occasions the pursuer was wholly unable to control herself. This was despite attempts by myself to have her behave properly and I am also aware that such attempts were made by her own solicitor and counsel.

5. The pursuer regarded the whole court process as a violation, although strangely at times when giving evidence she seemed to positively enjoy showing off to those present in court and in particular to members of the press.

6. On many occasions her answers were needlessly lengthy. Many of her answers were wholly unfocused. On many occasions such answers as were given in no way answered the questions which had been put to her. She often was excessively confrontational when answering questions.

7. Her appearance in court was extremely changeable. At one point she appeared to be reasonable and moderate and in the next minute for no discernable reason her behaviour completely changed.

Certain of her behaviour in court is perhaps of no particular significance in assessing the pursuer. However, other aspects are of significance in that it (a) influenced the evidence of the defenders experts in the area of psychiatry/psychology and (b) materially influenced the submissions made on behalf of the defenders. Her behaviour undoubtedly has made the assessment of her extremely difficult.

[86] Against that background I now turn to look at the individual heads of damage.

Solatium
[87] In relation to this head of damage, it was conceded on behalf of the defenders as follows:

"The pursuer is accepted to have suffered the shock of discovery in 2008 that she had a cancerous condition that, in the period from late January to May 2008 was found to be a condition such that she would have to undergo radical hysterectomy. It is accepted that that discovery, the various medical procedures that the pursuer underwent including stimulation for the collection of ova and egg-harvesting, culminating in hysterectomy and radiotherapy, were very distressing to her and in some respects physically painful. It is accepted that at the time the pursuer's mental health received severe blows, that she was affected by a condition of depression and that she suffered from symptoms of PTSD or adjustment disorder as she recovered from that difficult set of developments and as she began to come to terms with the consequences thereof. It is accepted that an award of solatium must follow from that."

However, as with so many issues in this case, there is a sharp difference between the parties as to the true level of the difficulties experienced by the pursuer, the development of the pursuer's physical and mental condition since 2008 and her current and future state.

The physical aspect
[88] Turning to this aspect first: the principal ongoing physical symptoms to which the pursuer spoke in the course of her evidence were these: pain; bowel difficulties; vomiting and fatigue. Mr Smith submitted that her evidence was credible and reliable and was supported by that of Dr Soutter and accordingly should be accepted in its entirety.

[89] Mr McLean's position was that if these problems existed at all then they were at a much lower level than that spoken to by the pursuer.

[90] As to her level of recovery, he pointed to her own evidence:

"... that she had been 'quite lucky' and that her physical recovery had been relatively uncomplicated. In cross on day 5 she accepted that she was, relatively speaking, very well. Although the experience of radiotherapy was obviously very uncomfortable, she recovered from that sufficiently by November 2008 not only to undertake international travel, but international travel to a developing nation (Vietnam) to which she had, on the evidence, never been before. She appears to have been able to function there with reasonable energy, so as to be seen there as positive, happy and chirpy by her new friends (see 7/37, ms 2731, as related to Dr McKinlay and 7/36, ms 2713 as related to Professor Freeman). If some of her cv material is to be believed, she carried out significant activity in Vietnam caring for orphan children. The photographs of the pursuer working in orphanages (lodged as 6/26 - ms 917ff) do not seem to show the pursuer as in any way disabled. She was able to live and operate not only in Vietnam but in various other developing world communities, including sub-Saharan Africa, over the following years, while keeping up a busy schedule of international travel in various directions. The history of her travels in chronological order was given on day 6, in the morning, when she also offered the comments that she loves to travel and be overseas."

[91] He directed me to the pursuer's evidence where she said that she did not consider herself to be a disabled person.

[92] He submitted that her medical assessment had shown a general, positive follow-up picture. Dr Megevand's notes were to the following effect:

"... show the pursuer going back for repeated check-ups in Geneva which all show that there has been no recurrence of the cancer and also no material ongoing physical symptoms reported to him. Dr Soutter (day 10 and his report 6/69) places the pursuer's chances of survival at over 80%, and it is not apparently contended that there is any measurable diminution of life expectancy. In short, the pursuer no longer has cancer, and as the pursuer demonstrated by forcing a printed apology from a newspaper that dared to suggest that she did, that is her own firmly-held position."

[93] In relation to the evidence of Dr Soutter, and the contention that it supported the pursuer's position of ongoing difficulties, he submitted: he has been able to say that such symptoms are not unknown when a patient undergoes the sort of treatment that the pursuer has undergone, but he freely accepted that he was entirely reliant upon the pursuer's account of her symptoms in this regard.

[94] Mr McLean went on to submit that various aspects of the pursuer's behaviour in court did not support her position regarding such ongoing difficulties.

[95] He submitted that if she had any vomiting problems then, according to the pursuer's own evidence, this was linked to high anxiety and would die down when the litigation was completed. He submitted that the lorazepam largely caused her tiredness as did her keeping what she in her own evidence described as "Australian hours".

[96] Overall, he contended that having regard to the foregoing and the pursuer's exaggeration and manipulative behaviour I should not accept her evidence regarding her ongoing physical symptoms.

Discussion
[97] I begin by looking at the evidence of Dr Soutter. His evidence, in my view, does to some extent support the pursuer's position, as set out in her evidence. The symptoms to which she spoke, Dr Soutter advised had been reported to him by the pursuer. He accepted that there was no way that he could check these reported symptoms. However, he made two points: (a) it was his opinion that the pursuer was an accurate historian and (b) there was nothing in the pursuer's ongoing medical symptoms which did not fit with his experience of women, who had undergone similar medical problems and treatment.

[98] Dr Soutter's position has to be seen in the context of my having held that the pursuer is prone to exaggeration, as did Lord Tyre. I believe that the court has had a much greater opportunity to consider whether the pursuer tends to exaggerate than the opportunities which Dr Soutter has had. I accordingly reject his view that she is an accurate historian.

[99] In addition, the symptoms which the pursuer suggests she has, I find very difficult to fit in with the amount of international travel she has undertaken since the index event and the places to which she has gone, namely: various developing parts of the world. Ms Haugh gave evidence that the living conditions in Vietnam for example were not particularly pleasant. Such travel does not appear, in my view, to fit very well with a person who says she suffers from bowel problems, vomiting and tiredness.

[100] Secondly, I did have the advantage of seeing the pursuer in court over a large number of days, both when she was giving evidence and when she was sitting with her solicitors, watching the case. It was noticeable that despite warning the court about such bowel problems and vomiting problems, she was able for large periods of time to remain in court. It also did not appear when she was giving evidence over a substantial period of time that she was suffering to any material extent from tiredness.

[101] Further it appeared from her curriculum vitae, which she prepared, that she was doing some substantial work at these orphanages. Even Ms Haugh said the pursuer worked at the orphanage in Vietnam from one to two hours each second day and that her journey to the orphanage by bicycle took 40 minutes.

[102] In the whole circumstances and in particular having regard to the above and the finding I made that the pursuer's evidence generally relative to the effects of the index event on her was exaggerated I hold that the pursuer's evidence regarding the ongoing physical effects of the index event was materially exaggerated. I accept that she has had these symptoms and continues to have them to some degree, but at a much lesser extent than she claimed.

Psychological effects
[103] The second aspect is the psychological impact of what has happened to the pursuer.

[104] Until the pursuer gave evidence there was little or no disagreement amongst the four experts in relation to the psychological effects of the index event, namely: as to the diagnosis that they placed on the pursuer's psychological condition: at 6/39 tab 3 page 1126 and 6/66 tab 4 page 2025 Dr Carson said it was adjustment disorder; Dr Harper at 6/7 tab 5 page 809 and 6/67 tab 7 page 2027 said it was post traumatic stress disorder. Professor Freeman at 7/36 tab 10 page 2717 and 7/108 tab 11 page 5105 said it was post traumatic stress disorder and Dr McKinlay at 7/37 tab 13 page 2734 said post traumatic stress disorder and at 7/90 tab 14 page 4428 he had changed his view to adjustment disorder ie the post traumatic stress disorder was no longer present, however, adjustment disorder was now present (a somewhat less serious condition).

[105] Following seeing the pursuer's behaviour whilst giving evidence Dr Carson and Dr Harper maintained their original opinions. However, Professor Freeman and Dr McKinlay came to the view that neither of these diagnoses could wholly explain her behaviour in court and believed that much of what was being seen in court was a personality trait made patent by the treatment which the pursuer had gone through when taken together with the stress of the litigation. As I understand it the experts for the defenders did not go back on their original diagnoses. Rather they were saying they were now of significantly less importance in explaining the pursuer's current presentation, particularly her presentation in court. They were saying that most of her ongoing problems were due to her pre-existing personality traits. I have already held that their views did not break the causal link and in those circumstances the precise label placed on the medical reason for the pursuer's continuing systems appeared to me to be of no real relevance. However, this difference in diagnosis between the pursuer's and the defenders' experts appeared to be a matter which influenced to some extent their prognosis particularly in relation to the likely time of recovery. For this reason I now require to consider the issue of the cause of the pursuer's current problems.

[106] Having considered the whole evidence I have come to the view that I prefer the evidence of Professor Freeman and Dr McKinlay in relation to this issue.

[107] It seemed to me that their explanation was more convincing than that given by Dr Carson and Dr Harper. Both Professor Freeman and Dr McKinlay gave detailed evidence on this issue and presented the court with detailed reasons as to why they could not fit the pursuer's current symptoms into a diagnosis of either post traumatic stress disorder or adjustment disorder. Amongst the points made by them were these:

(a) Persons suffering from Post Traumatic Stress Disorder are not good narrative historians, the pursuer however was such.

(b) The pursuer did not appear anxious or depressed which did not conform to PTSD or adjustment disorder.

(c) Her evidence did not conform to the Yerkes-Dodson curve, which conformity was relied on by Dr Carson in support of his views.

(d) She was able to talk about the event which had led to her medical difficulties which someone with PTSD or adjustment disorder would have sought to avoid talking about. Rather her avoidance behaviour related to matters other than the index event.

(e) Her anger was not directed in a way that would be expected in a person suffering from either of these two problems.

(f) Those with PTSD or adjustment disorder tend to play down difficulties whereas the pursuer tended to exaggerate her difficulties.

(g) Her behaviour tended to fit with a personality trait of narcissism which had been identified in the pursuer prior to the index event.

It seemed to me that this detailed reasoning was cogent and highly persuasive and it caused me to accept their evidence on this matter. As far as I could see there was no detailed reply to these points from the pursuer's expert witnesses. Their reports and evidence on this issue appeared to me to be rather cursory and somewhat superficial. I do not believe that their evidence in any real way explained the specific behaviour of the pursuer while giving evidence and how that could be brought within the diagnosis of either PTSD or adjustment disorder.

[108] Dr Carson in the only detailed part of his reply sought to support his view by specific reference to the Yerkes-Dodson law/curve. As I understand the Yerkes-Dodson law or curve, as it was expounded in evidence, it is as follows: it is an empirical relation between stress and performance and says this: performance rises with stress until a point is reached when stress becomes too high and performance decreases. The curve formed if the data is plotted on a graph is a bell curve.

[109] Dr Carson described the pursuer's evidence as follows: it fell into three stages:

(a) her evidence in chief which he described as rather meandering; obsessive component; information not targeted, relevant or focused.

(b) then hostility to Mr McLean - in cross examination, by next day a full blown panic attack.

(c) last two days much calmer when giving evidence.

[110] However, that behaviour pattern it was the defenders experts' position did not fit into the bell curve and did not conform to Yerkes-Dodson. I preferred Dr McKinlay's evidence on the issue of the Yerkes-Dodson curve. It did not appear to me possible to align Dr Carson's evidence with the bell curve formed by this law. Dr McKinlay said Yerkes-Dodson gave no explanation for her behaviour.

[111] I should make it clear that in preferring the evidence of Professor Freeman and Dr McKinlay on this matter this does not result in holding that the pursuer was pre-event suffering from any form of personality disorder. I am doing no more than concluding she had personality traits which were made patent and detrimental to the pursuer by the index event and litigation.

[112] I now turn to consider the issue of the time period over which the pursuer's psychological health should recover and she should be able to return to some form of work. Both of the defenders' experts were of the clear view that once the stress of the litigation was out of the way then the pursuer should within a period of months rather than years make a reasonably good recovery. Their view was that the recovery could be measured in months rather than years. The position of Dr Carson, and Dr Harper broadly aligned herself with this, was:

"Complete recovery unlikely, chronic symptoms, I don't think would go markedly uphill or downhill. Will be steady improvement over 5 to 10 years, won't get back to the state she was in but will have a good standard of life".

[113] Dr McKinlay's position was that given the pursuer was young, able and there were no significant problems in the past, (all of these factors being well recognised factors in predicting early recovery [and I did not understand this to be disputed]) then he would, if she undertook cognitive therapy, expect progress would be good and would expect signs of improvement in months. His position was that if she had no such treatment, she would still improve. He did not think any form of employment would be ruled out due to her having any cognitive deficit.

[114] Professor Freeman's position was this: given that she was bright and articulate, that after about 6 months she would be fit for some form of employment. Both of them, however, believed that improvement would not start until the litigation was behind the pursuer.

[115] Overall, in relation to the issue of the time required by the pursuer to make a recovery I found the reasoning of the defenders' experts soundly based and highly persuasive. I believe their conclusions fitted well with the general views I have formed regarding the pursuer's general personality and characters namely: that this is a very able person, who is being overwhelmingly affected and disadvantaged on making a recovery by the litigation and thus will quickly improve on the litigation being concluded. I did not find the pursuer's experts evidence on this issue to be as well founded and did not find their reasoning as cogent. Moreover, it appears to me that the pursuer's experts have too readily accepted the pursuer as an accurate historian of her symptoms, current position and future prospects, which evidence, I hold as exaggerated. This is a further factor which causes me to prefer the defenders' experts on this issue.

[116] I believe accordingly that the pursuer should make a reasonable recovery over a period of about 6 months or a little more (once the litigation is concluded) if she were to have cognitive therapy. However, although all four experts believed that the pursuer should undergo cognitive therapy, there was an issue between parties as to the pursuer's ability to undergo such. This issue arose out of this background. At some stage prior to the proof, there had been attempts to arrange cognitive therapy between the pursuer's and defenders' legal advisors. However, a question had then arisen as to the confidentiality of such counselling. As a result of this question, the cognitive therapy had not taken place. The pursuer's reaction to this was very extreme and at stages in her evidence it appeared that she was unwilling to undergo cognitive therapy and in particular to undergo such under the auspices of the NHS, even if that were to markedly improve her condition.

[117] I do not believe in any real sense that this is a difficulty. I believe once the case is over then the issue, of any possible reason for the defenders' legal advisors to require access to her records would fly off and she could be treated within the NHS. She has in the past seen doctors who work in the NHS who she had confidence in eg Dr Carson and Dr Soutter. I believe within the NHS an appropriate person who the pursuer could trust could be found, once the barrier of this action is out of the way. If a difficulty arose regarding an NHS psychologist treating her, then there were others within the private sector who could be used. Looking to her whole evidence I believe that the pursuer would be able to undergo treatment outwith the NHS. She has had private treatment and her particular problem/hatred is directed at the NHS and not at the medical profession generally. I believe on balance that the pursuer will require private treatment. There was very little evidence before me as to the cost of such treatment. The only evidence I could find was in a short passage in Professor Freeman's evidence which gave figures of £50 to £150 per session and stated the pursuer would require 40 sessions. I have taken the mid figure of £100 and allowed the pursuer an award of £4,000 for this.

[118] In summary so far as the physical and psychological effects of the index event on the pursuer I would hold as follows:

(a) She has lost the ability to carry children, which was an extremely important life plan for her.

(b) She had to endure the shock of thinking, reasonably, that she was in imminent danger of dying.

(c) She continues to have a risk to her life expectancy although that risk is materially decreasing.

(d) She has some physical sequelae, including minor bowel difficulties, and some minor fatigue and she endured benzodiazepine dependency.

(e) She has scarring to her body.

(f) She had to be operated on to remove the tumour by performance of a radical hysterectomy, involving major surgery and re siting of her ovaries all causing her great pain and distress.

(g) She had repeated cycles of radiotherapy which were exhausting and traumatic.

(h) She suffered and suffers from significant psychiatric consequences. These consequences have materially reduced as at the date of proof. These will not be resolved completely until the entire litigation is concluded. It was not disputed that no significant further recovery would take place until the litigation was concluded. Thereafter within 6 months or a little more she will have made a good recovery.

(i) She has a profound anger as a direct consequence of her injuries and the present litigation. This is as detailed earlier in this opinion.

[119] As regards the figure for solatium which I should award Mr Smith referred me to the guidance in JSB - 029. Mr Smith's position, appeared to be, that the pursuer's position was significantly worse than that upon which these figures were based and I should make a materially higher award than shown there and he submitted that a figure of £175,000 with half attributable to the past and half to the future would be appropriate.

[120] The defenders' position was this. I was also taken to the guidelines, however, it was submitted that the pursuer's case was not at the absolute top.

[121] It was submitted on behalf of the defenders that a very similar case to that of the pursuer is contained in Biles v North East Thames Regional H. A. Kemp & Kemp para K13 - 001. Applying the inflation table in McEwan v Paton to that case would give a present day figure of £107,100. It was submitted that having regard to this authority the award in the instant case should be £110,000.

[122] I believe this case is a reasonable comparator and therefore, in that I have preferred the defenders' submissions on this matter (where there was a dispute), I will award the figure of £110,000 as solatium.

[123] I would ascribe 75% of the said award to the past and 25% to the future.

Past and future loss of earnings
Overview of claim
[124] At the time of the index event the pursuer was based at CERN and was in the course of studying for her PhD. It was her position on record and as developed in her evidence, that following the completion of her PhD thesis, in late 2008, she intended to obtain a job in an investment bank or other financial organisation as a quant or a quant analyst trader.

[125] In her claim for damages against the defenders she alleges that she has been deprived of her chance of a very lucrative and very lengthy career based on her having obtained such a post at that time and involving promotion at various specified stages, and the possibility of working for a hedge fund and working abroad.

The law applicable to expert witnesses
[126] Before turning to the first issue between the parties in respect of the various heads of damage constituting pecuniary loss I propose to set out the general principles relating to the leading of expert evidence, as given the significance of expert evidence, these are of relevance to certain issues which I will turn to.

[127] The general principles regarding expert evidence are reasonably clear having been the subject of considerable case law and are these:

[128] As to when expert evidence may be led, the law was recently discussed in Wilson v HMA 2009 JC 336. In giving its view, the court made it clear that their observations applied not solely to expert evidence in criminal cases but also in civil cases. At page 363 paragraph 58 in the opinion of the court it was observed:

"At this point, in view of the significance of Professor Gudjonsson's testimony in this case, we should now consider what we believe to be the proper character of expert evidence, and in particular attempt to describe our understanding of its nature and effect on the conclusions we should draw. In general, of course, opinion evidence is not admissible in our criminal courts; witnesses may only under normal circumstances give evidence about matters within their direct knowledge. The evidence of an expert witness is an exception to this rule. It is not possible to provide an absolute direction as to what constitutes legitimate subject matter for expert opinion. However, two general principles will normally give some guidance. Firstly, the subject matter under discussion must be necessary for the proper resolution of the dispute, and be such that a judge or jury without instruction or advice in the particular area of knowledge or experience would be unable to reach a sound conclusion without the help of a witness who had such specialised knowledge or experience".

[129] With respect to who may be regarded as an expert, a statement of the requirements is given in Lewis; Manual of the Law of Evidence in Scotland at page 49.

"No rule can be laid down beforehand as to what persons may be regarded as qualified to give evidence of opinion, but there should be in the witness an extensive and accurate state of knowledge and experience of the subject involved, derived from study or practice, or both."

[130] Turning to the issue of the duties and responsibilities of experts these are conveniently set out in the opinion of Lord Nimmo-Smith in McTear v Imperial Tobacco Ltd 2005 SC vol 2 at page 138 in paragraph 5.9 where the Lord Ordinary refers to the following passage of Cresswell J in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) 1993 2 Lloyd's Rep, 68 at 81:

"The duties and responsibilities of expert witnesses in civil cases include the following:

(1) Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

(2) An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise... An expert witness in the High Court should never assume the role of an advocate.

(3) An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

(4) An expert witness should make it clear when a particular question or issue falls outside his expertise.

(5) If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one... In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report."

[131] Lastly, as regards the role of the expert, this is set out in the well known dictum of Lord President Cooper in Davie v Magistrates of Edinburgh (1953) SC 34 at page 40:

"Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their own 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."

[132] Lord President Cooper earlier in his opinion at page 40 had observed as follows:

"Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or judge sitting as a jury...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."

[133] Lord Russell in the same case at page 42 said this:

"The defenders argued that in the absence of any counter evidence of expert opinion in the science professed by (their expert witness), the court is bound to take his opinion as conclusive, and as decisive of the issue. I am clearly of the opinion that this argument must be rejected as being contrary to the principle by which the rules of evidence are regulated, and as constituting an unwarrantable encroachment on the judicial function of the court."

[134] In my view what can be taken from these latter two statements is that it is for the court to decide the issue and not the expert. This matter was taken up again by Lord Justice General Hope when delivering the opinion of the court in Beaton v HMA 1993 JC 35 at pages 39H to 40A when he made the following observations:

"Counsel's assertion that the defence case was evidentially unchallenged was based simply on the fact that S was the only expert witness who gave evidence on the matter. He submitted that the Crown had led no evidence to contradict S's conclusions as an expert. As there was no expert contradictor, the jury were bound by S's opinion if they accepted his evidence. We have no hesitation in rejecting this argument...the matter was one for the jury to decide. They were of course entitled to accept this as evidence if they regarded him as a credible and reliable witness, but they were not bound to accept it."

The first issue
[135] My first task under these heads of damage is to assess the likelihood of the pursuer obtaining a position as a quant in the latter part of 2008.

[136] The position of the parties on this issue, as with almost everything in the case, was that they were very far apart.

[137] The position put forward on behalf of the pursuer was this: on the evidence it was a certainty that the pursuer would have obtained such a post at that time. The defenders on the other hand, advanced a position to the effect that the pursuer's chances of obtaining such a post at that time were considerably less than certain. It was their broad submission that her chances were so small as to amount to mere speculation. In addition having regard to their attack on the pursuer's credibility and reliability it was Mr McLean's position that I should treat with some degree of scepticism the pursuer's position that her intention prior to the index event was to become a quant. Dealing with this issue first I am satisfied that the pursuer intended to become a quant. I believe that her MSc thesis and her particular research at CERN point strongly towards that being the career path she intended to seek to follow. The defenders' argument comes to this: that the entire basis of the pursuer's claim is based on a lie. Although there are aspects of her evidence I believe which are exaggerated and there are inconsistencies in her evidence I am unable to identify any evidence which would persuade me to go as far as to say this aspect of her evidence was a fabrication. I noted in this context that in addition to the nature of her studies she gained some support for her position that it was her intention to become a quant from the evidence of Dr Walleron whose evidence appeared credible and reliable.

[138] Before turning to look at the evidence in detail on this issue, it is appropriate, given the centrality of expert evidence on this issue and all of the employment issues, to deal with certain submissions made by counsel for the pursuer regarding the admissibility of certain evidence led on behalf of the defenders which it was asserted was expert evidence. This evidence was primarily led from Mr Gilbert. Mr Smith, in the course of the proof, had objected to evidence being led from Ms Hollywood on these issues. It was his position that she was not competent to give expert evidence given her experience and knowledge. Her background and the basis of her experience was different from that of Mr Gilbert and Mr Davies (the defenders' other expert witness on these issues). She is a forensic accountant, who specialises in the area of dispute resolution and litigation support. In terms of her experience I note that she has prepared reports, of the type to which she spoke in the instant case, in approximately 100 cases, and has been working in this area for some twelve years. She has prepared reports of this type over a very wide breadth of employment situations. It is clear from her CV which is at appendix A in her report (no 7 of process, tab 45) that she has very wide experience and expertise in relation to the type of questions upon which it was sought to lead her evidence as an expert. Having regard to her curriculum vitae to which I have referred I had no difficulty in repelling this objection. No objection was taken to Mr Gilbert's evidence prior to it being led, however, detailed submissions were advanced on this issue at the close of the case.

[139] Mr Gilbert gave opinion evidence on behalf of the defenders on various employment issues which arose in the case. In relation to him it was Mr Smith's position that he could not give expert evidence on any employment matter on which he had opined.

[140] The first of Mr Smith's arguments can be put very shortly and was this: Mr Gilbert's evidence did not disclose any special knowledge or experience relating to the issues in this case, namely: he had no special knowledge or experience to enable him to comment on the prospects of the pursuer becoming a quant as at late 2008, or as to her prospects of promotion in that employment, or as to her likely earnings in such employment.

[141] The gist of senior counsel's complaint was this: Mr Gilbert had no more than a general knowledge of the employment market and the basis of his opinion amounted to no more than reference to a series of newspaper clippings and anecdotal information that was at the best second or third hand. He contrasted this witness' knowledge and experience of the quant market with the experience of Mr Fisk and Mr Oyegbite who were witnesses who had been led on behalf of the pursuer and were headhunters who specialised in acting for financial institutions in the obtaining of quants.

[142] Mr McLean in reply submitted that Mr Gilbert was an expert and in particular put forward the following regarding his experience and knowledge. He described him as being very experienced in a wide range of employment and recruitment settings. He pointed to the fact that he had spoken not only to headhunters but also to those on the employer's side, looking to make hires in tier one and tier two banks. He described him as having a higher level view of the market than those provided by the pursuer's experts. He was able to provide the court with a more balanced view covering the whole economic situation. He pointed to the extensive research which he had carried out in relation to the various issues and which had been made available to the court in his report and the appendices thereto.

Discussion
[143] Mr Gilbert in addition to giving evidence about the pursuer's prospects of obtaining employment as a quant in late 2008 gave evidence about her prospects of remaining in such employment; her prospects of obtaining promotion; her likely levels of earning, her likely retiral age and residual earning capacity.

[144] I am satisfied that Mr Gilbert had specialised knowledge and experience to give expert evidence regarding these areas.

[145] It is clear, as was submitted by counsel for the pursuer, that Mr Gilbert did not have direct hands on experience of placing quants in investment banks and other financial institutions. However, that complaint in my view did not debar Mr Gilbert from expert status when his experience was looked at as a whole.

[146] Looking to his report 7/93 of process (tab 34 pp 4449 to 4526) to which he spoke in the course of his evidence I observe that:

(1) He has been involved in the recruitment industry since 1968.

(2) He had interviewed (prior to the proof) many thousands of candidates for a wide variety of occupations and at all levels. The company of which he is CEO has placed or assisted in placing in excess of 250,000 people in work. He has practised since 1990 as an expert providing reports of the type which he provided in this case.

It appeared to me that the foregoing established that the witness had considerable knowledge and experience in the area of recruitment and the placing of persons in jobs. Such experience and knowledge I am satisfied formed a sound basis upon which he could accurately and relevantly research the specific area in respect of which the pursuer was seeking to obtain employment and thereafter properly comment on the matters which his researches revealed.

[147] The thrust of Mr Smith's first line of argument seemed to me to be this: the only person qualified to give opinion evidence on the various employment issues before me was a head-hunter specialising in quants and all others were debarred from being seen as experts on these issues. This argument I believe is misconceived. I accept that the pursuer's two witnesses are experts on these issues. However, I believe that others with knowledge and experience of the employment/recruitment field and issues arising in that context, even though they did not specifically deal with the placing of quants, could having undertaken relevant research place themselves in a position to give expert evidence on such issues.

[148] In passing, I would observe that counsel for the pursuer did not make the same sorts of criticisms of Mr Peter Davies although in the course of his evidence he gave his opinion on the prospects of the pursuer obtaining employment as a quant in late 2008. He, in the course of his evidence, accepted as had Mr Gilbert that he had not placed a single quant in a job. He accepted that it was a somewhat unusual type of report which he had been asked to prepare, given the unusual nature of the job that it was said the pursuer wished to undertake. However, he appeared perfectly willing to give evidence on this matter based on his research and based on his experience in giving views on employment matters.

[149] Mr Smith not only impugned the witness' knowledge and experience, moreover he was highly critical of the research carried out by Mr Gilbert. I am not persuaded that this submission is well founded.

[150] The witness in the course of his evidence referred to and relied on a variety of written sources: these included surveys, and guides containing information as to the earnings of quants employed at various levels in banks, books regarding the operation of investment banks and the role of quants, printed articles and web articles from the general and specialist financial press commenting on the hiring prospects for quants, with particular reference to the financial markets in late 2008, studies, surveys and guides considering the same issue and finally reports and information contained on the Glasgow University website relative to employment of physics graduates in the City.

[151] An expert's opinion may be based on a large number of sources and one such source is published material.

[152] In my view the witness was entitled to have regard to these various publications in order to inform his opinions. I do not recall any evidence to the effect that the sources were other than reputable. Nor was there any evidence to the effect that they were not relevant to the issues before me. Rather when looked at they were in my opinion all directed accurately and relevantly to the issues before me.

[153] The final leg of counsel's argument was to the effect that the witness' evidence was merely anecdotal. I do not accept this criticism. Mr Gilbert said that his opinion on a number of matters had been informed by speaking to people at a senior level in banks and that he had shown the pursuer's CV to four such persons to get their views thereon regarding the pursuer's employability as a quant. This did not appear to be very different from the course followed by both Mr Fisk and Mr Oyegbite, the pursuer's experts. It was also a course followed by Miss Hollywood. I do not believe it could be the subject of proper criticism.

[154] In addition to the above Mr Gilbert considered all of the written information provided in relation to the pursuer's background including her academic record and record of job applications and feedback therefrom. He was able to bring his experience in the recruitment field to comment on these factors and how they fitted into the overall picture he had established through his research.

[155] It is clear that to an extent the witness was giving his opinion based on written material and was adopting to some extent a statistical approach when giving certain of his views. Those approaches are different from the approaches adopted by Mr Fisk and Mr Oyegbite. It follows that the opinion expressed by Mr Gilbert was expressed from a different standpoint, nevertheless his approach was a legitimate one. When looked at in the round I am satisfied that the witness was entitled to give expert evidence and that his evidence was therefore admissible regarding the issues upon which he was giving evidence.

[156] Mr Smith's contention that I should have no regard to the evidence of Mr Gilbert and should put it to one side was not merely confined to a challenge to his expertise and therefore the admissibility of his evidence but extended to a detailed attack on his behaviour in the preparation of his report. I believe that it is convenient at this stage to also look at this issue as it again goes to the question of whether I should be having any regard to the evidence of the witness when considering not only the first issue but regarding all employment issues.

[157] Senior counsel for the pursuer began his detailed attack on the witness by advancing an argument that I should not accept any of the views he expressed in that they were biased. Having looked at his report and his whole evidence I do not believe that this criticism is made out. I am of the view that he did not lack impartiality.

[158] In the course of his evidence and in his report he referred to factors which were favourable to the pursuer and factors which were unfavourable. I did not gain the impression he was only willing to attribute weight to factors unfavourable to the pursuer and attach no or only little weight to factors favourable to her.

[159] One of the points put to him in cross examination, from which I am supposed to infer bias is this: he had failed to state in his report that the pursuer had obtained grade As in all her Highers. The criticism is misconceived. What is important, and what shows a lack of bias is that in his report he detailed the critical elements, so far as obtaining employment in the pursuer's academic CV, namely: her First Class honours degree; her PhD; her research at CERN and the various prizes she had received at University. He, without difficulty, in his evidence accepted that she was an outstanding student.

[160] He gave evidence to the effect that the people to whom he had shown her CV said it was a very good CV.

[161] He had no difficulty in accepting that the feedback the pursuer had from one of her interviews in two sections had been outstanding and in one section good.

[162] This was a witness who in no way sought to downplay the pursuer's academic background and record, which was one of the principal factors upon which she was relying, as supporting her prospects of finding employment as a quant. This witness recognised that background and its value. Where he differed from the pursuer's experts was the weight to be attached to it. There is nothing there it seems to me which points to a lack of impartiality.

[163] When I look at the factors the witness took into account in coming to a different view about the pursuer's prospects of obtaining such employment including namely: the downturn in the market; the pursuer not having done an internship; her failure to obtain employment in the City when she did make applications these are all factors which were considered by the pursuer's own experts. They accordingly believed them relevant issues. Therefore this witness' consideration of these factors in no way supports any allegations of bias.

[164] It is also interesting to note when considering whether the witness was impartial that he was willing without demur to accept that a material drawback in preparing his report was his inability to interview the pursuer.

[165] It was asserted by Mr Smith that evidence of bias was this: the witness had looked at his website and that of his instructing agents but had not looked at such sites for people connected with the defenders. I do not think such behaviour evidences bias. I do not believe there is anything sinister in the witness obtaining such general background information and Mr Smith did not suggest any way in which such information could have adversely influenced the report. It shows no more than a perhaps natural interest as to who is appearing in the case.

[166] Mr Smith asserted that: the witness saw his function as being to investigate witnesses to see if he could catch them out. Generally I do not see anything wrong in an expert investigating the issues before him. It is appropriate for an expert to examine and research the issues before him.

[167] Mr Smith gave two examples of this investigation which should not have been carried out: first the witness referred to an article which he had discovered during his research quoting Mr Fisk which he believed contradicted a view expressed by Mr Fisk in his report. I do not see anything wrong in that. An expert is entitled to draw to the attention of the court that another expert has at some earlier stage put forward an opinion which he believes is different from that he is now putting forward in court. Secondly he referred in his report to Mr Elliffe (an employment comparator) working on the face of it in two places at one time. I do not believe this was a material point, nor do I see anything wrong in it being referred to.

[168] Mr Smith contended that the witness had sought to mislead the Court about his experience. It did not seem to me that he at any point behaved in the way alleged. His report set out his experience. He without difficulty accepted he had not placed quants, which was as I understood it to be the foundation of Mr Smith's argument that he should not be treated as an expert.

[169] Mr Smith then turned to advance a further argument to the effect that Mr Gilbert had behaved in an improper manner. This was based on the witness looking at the pursuer's twitter site. My understanding is that twitter is an instant messaging service designed as a social network. Persons such as the pursuer can set up a twitter site. Members of the public can look at it unless it is blocked and people can request to follow the site. The witness looked at this site and made a request to follow the site. I can see nothing improper in doing this. The site was open to everyone and everyone was able to request to follow it. On the evidence his having done this would not have set up a dialogue with the pursuer, so he was not seeking to contact the pursuer.

[170] Although, I do not believe it was improper to do the above, I believe it was a misjudgement on the part of the witness to seek to follow the pursuer's twitter account. The witness was aware of the background to this case and the pursuer's difficulties with the defenders' experts and was aware that he could not interview her because of this. Because of these sensitivities I do not believe he should have sought to follow the site, as this potentially could have upset the pursuer. There was also criticism of the logo which the witness had for his twitter account. This showed his judo black belt. Again it is possible the pursuer might have found this image disturbing and it reinforced my view that it was a misjudgement to seek to follow the site.

[171] However, in making the above comments I am far from holding that what the witness did was improper, and that the witness had done this, did not cause me to believe that I should not have regard to his evidence.

[172] A further criticism made by Mr Smith of this witness was to say that he was disparaging. It was submitted that this was shown first by the witness describing head hunters as bottom feeders. First on looking to his evidence this description, as I understood it, was applied to the firms which the pursuer's two experts were involved with. As I understood it the term was not being applied generally to head hunters. I understood from his evidence that the term was in general use in his industry. The witness had done certain research regarding these firms which showed that they were at the lower end, in size terms, in the head hunting market and that accordingly this reflected on the amount of experience the two expert witnesses for the pursuer had. I believe that the witness was entitled to make these comments and there was nothing improper in his so doing.

[173] It was said that he made remarks without foundation and an example of these was: banks were sexist. There was as I understood it no dispute that there was a very significant divergence between the number of women at all levels in investment banking and the number of men. The pursuer's own experts accepted that this was the case, although they also went on to say that recently certain banks were taking positive steps to change this. At least one possible reason for this was discrimination based on sex, either conscious or unconscious, on the part of banks when hiring. It seems to me the witness was entitled to hold this view on the statistics and based on his own understanding of the City. The next criticism was that the witness said bankers were in it for money. The evidence as a whole before me was that investment banking was a very highly paid profession but a very highly pressured profession. It attracted the best people from many academic backgrounds. Against that background there appears to me to be a basis for saying that one of the drivers for entry into the profession is the potential earnings.

[174] Another criticism that was made was that the witness said one reason for possible burn out within banking was the taking of drugs by certain members of the profession. There were no statistics upon which this was based. It appeared to be based on the witness' general understanding of the profession. It seems to me that the witness was entitled to make this remark, however, I attached no significance to it.

[175] I have taken some time to deal with these criticisms in that it was clear that there was, on behalf of the pursuer, a root and branch attack on this witness. Having looked at each of the criticisms I am not persuaded that they are well founded.

[176] Having rejected the pursuer's senior counsel's submission on admissibility and with respect to the behaviour of the witness I will have regard to the evidence of Mr Gilbert. I will later in my opinion turn to deal with the separate issue of the weight which should be placed on his views.

Summary of expert evidence on the first issue
[177] Senior counsel for the pursuer relied on the evidence of Mr Fisk and Mr Oyegbite to support his position that it was a certainty that the pursuer would have become a quant in late 2008.

[178] Both Mr Fisk and Mr Oyegbite were head-hunters and both specialised in the area of placing quants. It was Mr Fisk's position in his evidence that there was a 90% chance of the pursuer having obtained such employment in late 2008. Mr Oyegbite stated in his evidence that there was a 90% - 95% chance of the pursuer having obtained employment as a quant at that time.

[179] The defenders relied on the following experts: Mr Gilbert; Mr Davies and Ms Hollywood.

[180] These witnesses did not give a precise figure, when assessing the prospects of the pursuer obtaining such employment. However it was clear from their evidence that they were of the view that the pursuer's prospects of obtaining such employment at that time were of a markedly lesser order than that put forward on behalf of the pursuer. It was counsel for the defenders' position at the end of the day that the chances were so low as to amount to mere speculation.

Submissions
[181] Senior counsel for the pursuer submitted that Mr Fisk and Mr Oyegbite were possessed of the special knowledge required to be an expert on the various employment issues raised given their close involvement in the market of appointing quants. Mr Smith's position was that their evidence should be accepted in its entirety. In support of that contention, he submitted that their reports were well researched and based substantially on the market that they knew at the time which was of direct relevance to the matters at issue for the court. In short, they were able to provide the answer to the question: what were the chances of the pursuer obtaining employment as a quant in 2008? Their reports he described as being logical, clear, measured and informed. They had prepared their reports independently of each other and had come to the same conclusions. It was submitted that the defenders 'experts' criticism and the cross examination of them that they were salesmen was unbecoming of cross examination. He asked the rhetorical question: what, we may ask are they selling? They were clearly he argued not selling the pursuer as she was not on the market. They confirmed that they were not being paid in any way dependant upon the result of this case. He then asked two further questions: have they been misled by the pursuer? Are they trying to mislead the court? Neither of these he submitted could be stated responsibly. He then asked: are they just misguided? He then answered this question by contending that there was no basis upon which that could be said.

[182] Mr Smith's views regarding the defenders' experts were equally trenchant. It was his position that if I should hold that Mr Gilbert's evidence was admissible then I should have no regard to it. It was his position that I should attach no weight to that evidence given the submissions he had advanced regarding admissibility. It was his position, as I understood it, that these criticisms even if not sufficient to make Mr Gilbert's evidence wholly inadmissible, seriously reflected on the weight that should be attached to his views.

[183] In addition to the foregoing points, senior counsel advanced a number of further reasons for attaching no weight to the views of Mr Gilbert.

(1) He had no knowledge of what CERN did (describing it as the institution in Switzerland that has the tunnel and carries out research): no knowledge of what the pursuer's PhD thesis was actually about; and did not meet the pursuer herself. Each of these factors was critical to the evidence of Fisk and Oyegbite, and they were unchallenged about the importance of the first two being critical to the chances of success in obtaining a job as a quant. Their reports also made it clear that these were important factors, yet Mr Gilbert - who had time to investigate the companies that they worked for did not find out what CERN did.

(2) By his own acknowledgment, his failure to meet with the pursuer was a disadvantage. If the court needed just one reason for rejecting his evidence, it was that. But as the court should appreciate, there was frankly so much material to work with as to why he should be rejected, it was difficult to know where to start or where to stop.

(3) It was also submitted that Mr Gilbert's report was substantially based on opinions of others that were not to be afforded any weight. It seemed to be based on conversations with his neighbour, selective reading from articles, general comments about the banking world and so on. What, it was submitted was his special experience relating to quant recruitment? The answer was none.

(4) His position on the disadvantages of the pursuer being female were simply untenable. The views of Fisk and Oyegbite were informed and made sense. Indeed, even in Gilbert's own report he talked of a drive to redress the gender imbalance: yet he was prepared to say, without any evidence whatsoever, that there was no more than lip service being paid to penalty.

(5) In conclusion, his report was ill informed, biased, illogical and opinionated without any of the necessary ingredients of a proper expert opinion. It should be rejected in its entirety.

[184] His position regarding Mr Davies and Miss Hollywood was, that they did not have the necessary expertise to opine on these matters.

[185] In summary Mr Smith's position was this: Mr Gilbert's evidence either was not expert evidence or was of so little value as to amount to nothing, Mr Davies was simply to be put to one side as he accepted the pursuer's two experts had certain advantages in commenting on the area of quant recruitment and Miss Hollywood's evidence was of no value, it was not expert. Thus, he submitted that the court was left with the uncontradicted evidence of Mr Fisk and Mr Oyegbite, and although he conceded that whether the court accepted or rejected their expert evidence was a matter for the court, he contended that, where expert evidence was particularly within the knowledge or experience of the expert so that the court had no insight of its own in respect of that evidence, the court should be very slow to reject the evidence of the expert. He submitted that that was especially so, if unchallenged, when they gave evidence. In support of this submission, he referred me to Harley v Smith 2009 PIQR 11 in circumstances where the expert evidence was uncontradicted, it should not be rejected unless it was patently absurd. It was his position that the evidence of Mr Fisk and Mr Oyegbite was far from being absurd and rather it could properly be described as compelling.

Defenders' reply

[186] (1) Looking to the evidence of Mr Fisk and Mr Oyegbite, Mr McLean submitted that as head-hunters they had never given evidence in Court before and had for their entire adult lives been working as salesmen. They held no professional qualifications and had no experience of assessing an individual for the purposes of preparing an independent report for the Court. Both had taken the pursuer entirely at face value. Mr Fisk had not even carried out the sorts of background checks on the pursuer that he would normally have carried out on a candidate. Neither of them had ever worked as a quant, a quant trader or even on the trading floor of an investment bank. Really the only question they could possibly answer was: could you "pitch" this CV for a sale to one of the firms who might have been hiring quants in 2008, and do you think you could have made a sale? As confident salesmen, albeit people whose annual success in placing quants never went beyond the fingers of two hands (with some repeat business moving an established quant from one place to another) and in the case of Mr Oyegbite never went beyond placing one or two quants a year at entry level (and he did nothing else), they both were happy in the witness box to put their hands up to a very high chance of a sale being made. He submitted that that was what one would expect a salesman to say (as Mr Davies remarked in his evidence). It was of particular interest that particularly in the case of Mr Oyegbite his evidence on the percentage chance of success in the witness box went well beyond the much more sensible and tentative views expressed in his written report. It turned out that his unheralded view was strangely and, he submitted, suspiciously similar to that of his friend and former and older colleague, Mr Fisk, whose report he had seen after he had completed his own.

(2) Mr Fisk was part of Carrington Fox, which he joined straight from university, where he studied not physics or maths but Geography. He did not do, and could never do, the work of a quant. He plunged himself into sales. Likewise, Mr Oyegbite moved from university (Applied Business Management) straight into sales, and was not in any sense a quant. From the evidence of Mr Gilbert, a very experienced recruitment consultant, the Court could accept that in order to make sales in such a market the important thing was to be a persuasive salesman - you did not really need to understand what it was you were selling. Carrington Fox, the Court had heard from Messrs Fisk and Oyegbite, was a firm with a name chosen purely because it combined a name thought to gain great trust (Carrington) and a name purely chosen to suggest a frisson of cleverness (Fox), in other words an exercise in spin. Mr Gilbert, a long established recruitment consultant, gave evidence of the endemic temptation of such consultants to "big it up". Carrington Fox was placed by Mr Gilbert in the bottom rung of recruitment consultants working in the City. As the Court heard, it went through a very difficult time in 2008, with profits falling as the global crisis hit, and since then both Fisk and Oyegbite, who were presented as "competitors" but who were also actually friends, had left the company to join even smaller operations. Mr Fisk was briefly allowed to own 25% of a Carrington Fox subsidiary which seemed not to have been successful, and now worked not only selling quant type CVs but also commodities traders. Mr Oyegbite, who is only 27 years old, was somehow promoted to the rank of senior consultant, aged 22, within 6 months of leaving university. Mr Oyegbite gave interesting evidence as to how many quants he had actually placed - very small numbers of entry level quants, none of them women, yet he was happy to give evidence about the many benefits of having women applicants. Both felt able to provide feedback from unnamed clients, the Court not being permitted to know who the providers of this hearsay evidence are, which evidence was in any event not entirely supportive. In the box, Mr Oyegbite was prepared to accept that he would have expected to have better CVs than the pursuer's if he was looking to place a quant in 2008.

(3) Mr Gilbert was able, apart from anything else, to give the Court a better view of Messrs Fisk and Oyegbite as experts. It was highly relevant that neither of them had heard of McLaggan, the definitive benchmarking service for jobs in finance, until it had been drawn to their attention by Mr Gilbert. Both confirmed that having had McLaggan drawn to their attention they found that it was indeed, as Mr Gilbert said, the only reliable set of data available. Therefore one must doubt that Fisk and Oyegbite were particularly well informed on such matters. Mr Gilbert made it clear that the enterprises with which they had worked were very minor players in the industry and expressed surprise that they would be able to find the time and take the risk of getting involved in litigation, when in Mr Gilbert's experience no serious or successful head hunter would do so.

[187] As regards Mr Davies, he submitted that he is very well known in these courts and he submitted had given his evidence in a professional, independent and careful way. It was Mr McLean's submission that his evidence should be accepted in its entirety. Equally Ms Hollywood's evidence should be accepted.

Discussion
[188] I take as my starting point that it is for the pursuer to satisfy the court as to the likelihood of her having become a quant in late 2008 had she been diagnosed as having small scale invasive cancer in 2006 followed by a small scale operation as opposed to her diagnosis only having taken place in 2008 with the resultant considerably larger scale treatment.

[189] I first therefore turn to look at the evidence upon which she principally seeks to rely in establishing her position, namely: that of Mr Fisk and Mr Oyegbite.

[190] At the outset I would wish to deal with certain specific submissions made by counsel for the defenders criticising the evidence of these witnesses before turning to analyse their evidence in some detail.

[191] I reject, what in part, seemed to underlie certain of the submissions of Mr McLean that Mr Fisk and Mr Oyegbite had got together to prepare their reports.

[192] This was, as I recall, never put to these witnesses by Mr McLean and if this was to be submitted, it should as a matter of fairness, have been put to them for their comment. In any event, on looking to their evidence as a whole and the way they gave their evidence, I am unable to find anything that supports this submission. I did not believe at any point these witnesses were deliberately seeking to mislead the court. The fact that they both reached the same conclusion on the purser's prospects of obtaining employment as a quant in late 2008 does not in my opinion in any way support such a conclusion. I am unaware, from the submissions of Mr McLean, of any other piece of evidence upon which he relied in order to make this submission. For these reasons I reject the submission.

[193] Secondly, I reject the submission that because these two witnesses had not previously given evidence in court that this debarred them, in some unspecified way, from giving expert evidence. All experts give evidence for the first time and the mere fact that this case was the first occasion on which they had given evidence as an expert, of itself in no way, undermines their evidence. Rather in my view what has to be looked at is the question: whether they, having regard to the principles I outlined earlier, regarding the giving of expert evidence, have the necessary expertise in order to give expert evidence.

[194] This last comment brings me to a third submission of Mr McLean, namely: that because headhunters are salesmen, (and I accept that there is a substantial sales component in the job of headhunter), that this somehow means that they cannot give expert evidence or at least so seriously undermines the quality of any such evidence as to render it worthless.

[195] As I have said, the appropriate question to ask is: have they the experience to give evidence on the issues upon which they opined? In relation to this part of the case what they were being asked to comment upon was the pursuer's prospects of obtaining employment as a quant in late 2008. Having regard to the fact that they were both headhunters at the relevant time, whose principal job was on behalf of client banks and other financial institutions to put forward candidates for quant jobs, I believe that they do have the experience to comment on the said question and the other issues upon which they opined. They know the quant market; they know the types of persons the banks are looking for; they know the types of persons they put forward for such jobs and the types of persons ultimately chosen; they know the earnings packages offered to candidates by their clients and they have knowledge of what the job of a quant entails. This gives them the experience and knowledge to give expert evidence on this question. I recognise, that in particular Mr Oyegbite had not placed a huge number of quants. However, I believed he had placed sufficient, in what is a small market to opine as an expert.

[196] Turning to Mr Fisk's and Mr Oyegbite's detailed evidence and the terms of the reports to which they respectively spoke in the course of their evidence, I am not persuaded that their evidence was sufficiently compelling when fully analysed to support their conclusion, amounting in all real senses, to certainty that the pursuer would have found a position as a quant in late 2008 and I have reached that conclusion for the following reasons:

I

[197] Mr Fisk had prepared two reports 6/41 of process and 6/71 of process which can be found respectively at tab 27, pp1132-1148 and tab 28 pp2185-2225. Mr Fisk at paragraph 15.1 (p2209) of his second report in a section headed: "Summary of conclusions so far", says the following:

"I have, so far, concluded that on the balance of probabilities, the pursuer would have obtained employment as a front office quant by the last quarter of 2008".

[198] Earlier in his report at paragraph 11.1 (p2203) he had opined:

"In my opinion there was a significant prospect that Miss McGlone would have been able to secure an entry level quantative analyst position over the summer of 2008".

[199] In addition at paragraph 10.3 (p2202) he similarly opined:

"I have no hesitation in saying that on the balance of probability the pursuer would have, but for her illness, been able to secure employment as a quant".

Mr Oyegbite's report is 6/72 of process and can be found at tab 29 pp2226 - 2250. Mr Oyegbite in a section of his report headed: "Overall conclusion" (p2248) said this:

"Having assessed Dr McGlone's academic qualifications, personality and initiative, I have come to the conclusion that she would have had a good chance of securing a position as a front office quantative analyst within an investment bank or quantative trader within a hedge fund or prop trading firm in 2008, despite the market crash. This is mainly because she would have considered working anywhere in the world on the impressive CV (in particular her PhD and work at CERN). How long the process of securing a position would have taken is very much harder to determine. Her chance of securing a quant role were high also because she possessed a good combination of mathematical and programming skills in addition to a sound understanding of mathematical finance and derivatives that are needed for this type of role. Her main weaknesses in her résumé is clearly the fact that she had not studied at one of Oxford, Cambridge, Imperial or Warwick University. However, the fact that she studied at CERN would have gone some way to counterbalancing this because of its general recognition as a world class institution for scientific research.

It is important to mention that the points raised above would have aided Dr McGlone in securing at least a first round interview for quant roles. How she would have faired during these interviews and how far her career as a quant would have gone is very much harder to say. However, it is important to mention that very few quants get invited for first round interviews. That stage of the process is therefore significant".

[200] In my opinion, the foregoing views could not fit in with the eventual position taken up in evidence by Mr Fisk and Mr Oyegbite, of certainty that the pursuer would obtain such employment at that date.

[201] There was no explanation in their evidence as to why their conclusion and in particular the very tentative conclusions of Mr Oyegbite had changed to such an extent. There was in looking to their whole evidence nothing which justified this change.

[202] This difference for which I could find no sound basis within their evidence materially undermined my confidence in the cogency of their final conclusion.

II

[203] Further the opinions of certainty expressed by these witnesses appear to take no account of the financial downturn from September 2008. In his report and evidence Mr Fisk made reference to this. For example he stated this in his report at paragraphs 11.1 and 11.2 (p2203):

"I acknowledge that the wider macro economic environment would certainly have had an effect on this (the pursuer's prospects of obtaining employment in 2008) and made it more difficult than in prior years. We must therefore understand the impact this would have had to an entry level quantative analyst in 2008.

The financial crisis, which became highly publicised through the fall of Lehman Brothers in September 2008, unquestionably had a direct effect on the hiring climate in the investment banking industry. In its worst cases it led to the fall of entire investment banks with teams of people being made redundant and in the following months and year the full effects have been seen in an industry which is now very much in a transitory phase."

[204] At 11.7 Mr Fisk (p2204) went on to say this:

"The credit crisis hit the financial industry hard. As the creators of many of the derivative instruments that caused the crash, they were the first to feel the effects:"

[205] At 11.10 (p2205) he further says this:

"In my opinion it would have been more difficult to have secured a job in 2008 than it would have in 2007 or the four years beforehand".

[206] He concludes his consideration of the effect of the market downturn on the pursuer's obtaining employment by saying this at 11.11:

"It is my opinion that on the balance of probabilities, Miss McGlone would have found an appointment as a quant even in that difficult marker".

[207] In the course of his evidence he stated that September 2008 to January 2009 was a difficult time to find a job and that anyone looking for a job would have struggled and that 2009 was the worst year to get a job and that it was pretty horrible.

[208] Despite all of the above there is no real allowance in the opinion given by Mr Fisk to take account of this factor.

[209] He in his evidence stated that in all real senses there was a certainty of the pursuer obtaining employment as a quant (ie 90% chance). I would in no way demur from the position put forward by senior counsel for the pursuer that this amounted to a position of certainty as did the position of Mr Oyegbite (at 90/95%).

[210] There is in my view an illogicality in Mr Fisk holding to a view of virtual certainty despite his views as expressed on the market crash. One cannot on the one hand accept that there was a massive downturn which had a very material effect on hiring yet simultaneously assert that that has no real effect on your confidence in someone like the pursuer finding a job in those conditions and that your view remains that the pursuer would be virtually certain of obtaining employment in her chosen career.

[211] Mr Oyegbite says this about the effect of what he describes as the "Market Crash of 2007" p2235.

"The market crash of 2007 was followed by an unprecedented reduction in hiring within quantative analysis at investment banks. As a headhunter specialising in the quantative analysis market there were very few hires across the board with the investment banking clients that I was dealing with, primarily within the UK market. However, there were still hires within the UK within investment banks and in Switzerland and Asia Pacific region... Generally speaking, my opinion is that the slow down in hiring in the UK market coincided with an increase in hiring in Asia. In addition, clients within the Asia market also had a general preference for European and US qualified candidates ahead of local candidates due to the advancement of their work and experience relative to the growing but fairly nascent local talent pool.

Conclusion

My understanding is that Dr McGlone began her applications for positions within investment banking toward the end of summer 2008. Although she may have struggled to find a position as a quantative analyst at an investment bank during 2008, her prospects of employment would have been greatly enhanced if she were willing to consider working for an investment bank in Switzerland, or an investment bank in the Asia Pacific Region."

[212] He goes on to say this at page 2240:

"Although the market crash of 2007 saw a reduction of hiring within investment banks for quants, the effect on hiring within hedge funds and prop trading firms was very much the opposite. This was a time when quant trading became an increasingly popular way for hedge funds and prop trading firms to make money. One of the main reasons for this is that the market turmoil created a lot of volatility in the financial markets and these present quantitative traders with opportunities to profit. Many of these firms wanted to grow their existing team significantly and some firms that do not trade this way suddenly looked to grow new teams. The increase in hiring was across all levels and was not only in the UK but globally."

[213] In cross examination he accepted that it was more difficult to place a quant in 2008 than in 2007. He went on to say he had only placed 1 quant in 2009 and 2 in each of the years 2010 and 2011. Again there is an acceptance of downturn and increased difficulty in placing quants but no reduction from his position of virtual certainty.

[214] Again the above impacted on the confidence I could place on their conclusions.

III

[215] Both Mr Fisk and Mr Oyegbite as part of their research carried out what was described as field testing; this was placing the pursuer's CV before a number of persons with experience in the market and asking them to give an assessment of the pursuer as a would be applicant for a position in late 2008.

[216] Mr Fisk dealt with the replies at paragraph 10.1 of his report at pages 2201 and 2202.

[217] I accept that the responses contained many positive comments upon the pursuer's curriculum vitae. What, however, is noticeable is that there is not a single comment within these responses to the effect that the pursuer would definitely have been hired by anyone.

[218] It could be said that the most positive comment coming in the majority of the responses was this:

"A profile certainly worthy of an initial (ie first) interview, providing they were hiring a junior quantitative analyst at the time."

[219] However, on the downside so far as the pursuer obtaining such employment are the following comments which come from the majority of respondents as I understand the terms of the report:

"Mixed feelings over Glasgow as an Institution for Physics"

"May have sent a test for her to complete which analysed coding and mathematical ability prior to interview." (ie not even saying would certainly give her a first interview based on her CV alone).

"A lot of female quants lack the hard core coding skills for the front office and are more common in model validation". (an example of the view that men are preferred to women in this area).

"Women can be seen as better placed going into trading and structuring/sales roles as they are more client facing than men." (another example of the view that men are preferred to women in this area).

[220] Turning to Mr Oyegbite's report he put the curriculum vitae to only two clients. However he gave their detailed responses at pages 2243 and 2244.

[221] Client 1 said inter alia the following:

"She does not come from one of the top places, and the typical intake for the interview phase is typically at least 2/3 from Oxbridge, French Grandesecoles, Moscow State Uni etc...which would make it a bit more challenging for places having to filter a lot of candidates."

"It is likely she would get to the quant interview phase. Maybe in not all banks, but certainly she would get interviews in some."

"There is not a lot saying business on the CV."

"Based purely on the CV, it is difficult to say what would be the outcome after the interviews. As you know, the ratio between number of interviewees and the number of job offers is not that high."

"The other point to take into account is that graduate programmes have shrunk significantly with the crisis and it is a lot tougher these days than it used to be."

"In the days when everybody was recruiting massively I would say that she had decent chances at a quant graduate position after interviews."

"If I look back at my teams when I was at Barcap I have not recruited anyone since and assuming that the filtering was done by me, it is likely I would see her for interview for my risk team. On the quant side, it is likely I would have a few more impressive CVs to consider. But that is only a gut feeling..."

[222] Client 2 said inter alia the following:

"Overall, if I were to recruit a junior quant, I don't see any reason why I would not talk to her, at least on the phone first to check her skills through some technical questions. Potentially, some people might not consider candidates coming (not) from top schools but this is not my philosophy."

"On average, in my experience an applicant who has been marketed for an interview with a client will not often have to go beyond four interviews. Therefore, if it has to be assumed that Dr McGlone would have had up to four interviews, it's a reasonable assumption that she would have obtained a job offer in that process. It is my conclusion that on the balance of probability, she would have had a number of interviews; and that she would have been made an offer of employment as a quant. Whilst I accept that there may be exceptions and she may not have been offered a job, I consider that to be an unlikely result."

[223] Looking at the responses they do appear to contain certain positive comments in them. However, they also contain parts in the sections which I have above quoted which are not entirely favourable when considering whether the pursuer would have got a job in this area in late 2008. In my view in order to reach a balanced and proper conclusion these factors had to be had regard to by Mr Fisk and Mr Oyegbite in giving an opinion on the pursuer's prospects of obtaining employment as a quant in late 2008. They have, in my judgment, failed to have regard to these factors. These factors must, in my opinion, have impacted on their conclusions as to her employability. In my judgment against the background of their own field testing, they could not properly come to a view that they were virtually certain that the pursuer would have obtained employment. These points again impacted on the confidence I could have in their conclusions.

IV

[224] It appears to me that there is a general difficulty with the reports and the evidence of Mr Fisk and Mr Oyegbite and that is a failure to recognise the difference between the likelihood of the pursuer obtaining an interview and her obtaining a job. I believe that there is a clear recognition in the field testing of the difference between interview and obtaining a job and that by no means all persons interviewed get the job for which they are interviewed. However, both witnesses seemed to take it as a given that the pursuer would, if interviewed, have obtained a job.

[225] Over and above the field testing the experience of the pursuer herself ran against the view that there was no difference between interview and the obtaining of a job. The pursuer had been interviewed twice for jobs in the City and on neither occasion had she obtained the job and on neither occasion had she gone beyond the stage of an initial interview (one face to face and the other by telephone).

[226] In relation to neither of these job applications for which she was interviewed had the pursuer made any reference to her having been ill or suffering from any form of disability, therefore these matters were unknown to the interviewers. The feedback which she had obtained from the interview with J P Morgan, had been very positive. Despite that feedback being very positive, she still did not obtain the job.

[227] Mr Fisk and Mr Oyegbite appeared to have attached no significance to these failures. Rather they took from the positive feedback from J P Morgan a further factor in supporting their eventual view of virtual certainty that the pursuer would have obtained employment. It seems to me that in judging the likelihood of the pursuer obtaining a job as a quant, they had to factor into this, her failures despite interviews and positive feedback to obtain employment in the City. They did not do this.

[228] Moreover, in my opinion in arriving at their conclusions on this issue they took no proper account of the pursuer's other applications which had not resulted in even interviews. As I understood their evidence they explained their reasons for this as being that the pursuer had not followed a targeted approach and that her applications would have been dealt with at a low level and that the banks would have had quotas for the number of people they were taking on through that type of process. However, this position which they took does not fit well with Mr Fisk's view of certainty on the pursuer obtaining a job whether she had a headhunter or not, which he expressed in the course of his evidence.

[229] This evidence as to the pursuer's failure to obtain jobs as at that date and failure even to obtain interviews on many occasions shows the competition that the pursuer was up against and although, as was accepted at all hands, the pursuer had a very good CV this would not on the evidence inevitably have got her an interview far less a job. The people she would have been competing against would have had broadly similar CVs. As was stated by one of the respondents to Mr Oyegbite he would have thought "it is likely I would have had a few more impressive CVs to consider."

V

[230] In the reports prepared by both Mr Fisk and Mr Oyegbite there were references to the Universities which people employing quants preferred candidates to have obtained their degrees.

[231] Mr Fisk at 8.7 p2200 of his report said this:

"Glasgow University is not held in as high regard by quantitative managers as Cambridge, Oxford and Imperial College. There is largely a bias towards these Universities however it is worth noting that some managers are not as concerned about the institution as others because a PhD is largely a personal research project conducted by the student, rather than taught by lecturers."

[232] Mr Oyegbite in his report at p 2232 said the following:

"Generally speaking, clients at top tier investment banks have a preference for UK educated candidates to have studied at one of Oxford, Cambridge, Imperial or Warwick Universities."

[233] These views as set out in their reports are reflected in the responses to the field testing. Given that this is a factor which on the basis of their own reports would to some extent have counted against the pursuer I believe that in saying that the pursuer was virtually certain to obtain a job they appear to have failed to take into account this particular matter. This is another factor striking at my confidence in their conclusions.

[234] Overall looking at the reports and evidence of Mr Fisk and Mr Oyegbite, I am clearly of the view that there was a significant degree of overselling of the pursuer's prospects of obtaining employment as at late 2008. In advancing a view of virtual certainty that the pursuer would have found such employment at that time I am of the view that this is a materially over enthusiastic assessment in her favour.

[235] I believe that this was influenced unconsciously by their employment as headhunters. They came from a sales driven background. They came from a background where you have to believe that you can successfully put forward candidates and believe that your candidates will be successful in obtaining the jobs for which you have put them forward. Both of them struck me as being very self confident, and very sure of their own abilities.

[236] Nothing I have said above should be construed as me saying that they breached any of the duties which they owed to the court. On the contrary I believe that they sought to have scrupulous regard for these. However, I believe their background unconsciously pushed them to their view of certainty in preference to their more tentative views as set forth in their reports.

Conclusions on the Evidence of the Pursuer's Experts
[237] For the foregoing reasons I am not persuaded that I can accept the conclusion reached by the pursuer's experts to the effect that the pursuer was virtually certain to have found employment at that time as a quant.

[238] Individually each of the above factors, to an extent, impacted on my confidence in the conclusion reached by Mr Fisk and Mr Oyegbite. When taken cumulatively I am unable to place confidence in their conclusion.

[239] It seems to me that their reports and their evidence superficially support their conclusions. I was at least initially attracted by their conclusions. However, on a proper, detailed and critical analysis I am satisfied that there is no sound basis for their conclusion.

[240] I am not persuaded on the material they provided that an opinion of virtual certainty could be justified.

[241] It appears to me that their conclusion is on the basis of the information which they put before me simply unrealistically optimistic.

[242] I accept that as argued by Mr Smith the court should be mindful when looking at unchallenged expert evidence, which is dealing with an area that lies outwith normal day to day experience, about which the court can have no particular insight, then the court should be slow to reject the conclusion of the expert. However, I also remind myself that the court is not bound in such circumstances to accept the conclusion of an expert. It is for the expert to provide the necessary evidence to support the accuracy of his opinion. It is in relation to the provision of this evidence to support their view of certainty that these witnesses have failed. Rather I believe that material parts of their reports and evidence point clearly in a direction different to their conclusion. In summary, looked at on its own, their conclusion on the basis of their evidence does not add up. I accordingly reject their conclusion of virtual certainty. I have arrived at this conclusion in the first place on a consideration of their evidence and without reference to the evidence led on behalf of the defenders to which I now turn.

The Defenders' Experts
[243] I first turn to Mr Gilbert. In relation to the issue of the pursuer's chances of obtaining employment as a quant in late 2008 his position in summary was as follows: having regard to his 40 years experience in the recruitment market, nobody would express a view of 90-95% confidence that a person would get a job. He found this view baffling and astonishing. He said that you could not put forward such a confident view, no matter how good a candidate. He felt it was very improbable that the pursuer would have got such a job at that time. He relied on a number of pieces of evidence to support this: the very few quant jobs (only 600 in the UK); the small percentage of females in such employment (only 7.17% in London and 8.3% globally) (see: para 8.2 of his report); the particular difficulty in obtaining employment in late 2008 due to the market downturn. He described the position relative to employment in the City as a "blood bath on the streets"; the general difficulty in a highly competitive market in relation to which the chances of getting a particular job as a quant were between 2 to 5% and that the chances only improved to 10 to 15%, if a first interview is achieved (see: paragraph 5.12 of his report); he highlighted the fact that the pursuer had not done an internship and the importance, in obtaining a job in the City, in having such experience, particularly in the difficult market conditions of late 2008 and finally the fact that the pursuer when she did apply for jobs in the City did not obtain a job. When further commenting on Mr Fisk's and Mr Oyegbite's reports he expressed the view that their firms were not at the top end of the headhunting market and they somewhat lacked experience. His general view on their reports was that their position on likelihood of finding a job for the above reasons was wildly over stated.

[244] Turning now to Mr Davies (whose report was 7/92 of process, tab 33), his evidence on this issue was in fairly short compass and can be summarised as this: the pursuer was a good candidate, there were, however, 20-30 people being interviewed for each job with good qualifications; the downturn had had an effect on hiring and there was increased competition for every job; when she had been interviewed for a job, which was a good road test of her abilities to get a job, she did not get a job, even though interviewed and this evidenced the difficulty, she would have had in 2008. He said this in evidence, which perhaps summed up his position: "I don't disagree she (the pursuer) is marketable - whether someone would bag her is speculative." His views were based on his general understanding of the market and market conditions.

[245] Miss Hollywood, from research, in documents and from speaking to two persons, namely: a Mr Youtan, head of Risk Management at Selby Jennings a provider of recruitment services to global financial institutions and a Mr Tattun, Global Quant Recruitment, she highlighted the following relative to the pursuer obtaining a job as a quant in Autumn 2008: the highly competitive nature of the market, with particular reference to the impact of the financial crisis, on the obtaining of a job as a quant at that time (see: in particular at 5:10 to 5:12 of her report).

[246] Mr Smith's position, as I understood it, was if I were going to consider the defenders' said experts I should prefer the evidence of Mr Fisk and Mr Oyegbite for these reasons: as regards Mr Gilbert he relied on his earlier criticisms, and if they were insufficient to disregard his evidence, nevertheless they rendered his evidence almost valueless.

[247] Mr Davies had in his evidence accepted that he would defer to the position of Mr Fisk and Mr Oyegbite due to their detailed knowledge of the quant market. Ms Hollywood's evidence was valueless.

[248] The pursuer's experts had seen the pursuer and interviewed her. This gave them a material advantage in reaching their views over Mr Gilbert.

[249] Their position as people dealing solely with the placing of quants put them at a material advantage when put against evidence from the defenders' experts who did not have such hands on knowledge.

[250] Mr McLean urged upon me that I should prefer the view of Mr Gilbert, Mr Davies and Ms Hollywood. He submitted that the furthest that the pursuers experts could go was to say: that they could market the pursuer's CV and they thought they could make a sale and nothing further. Their experience was not that great they only on the evidence succeeded in placing a handful of quants per annum. He submitted that the feedback they had received was not entirely supportive of the position they were asserting. Their conclusions in their reports were much less positive than their eventual evidence on this issue. It was his general position that their views were very much overstated. He contended that their views should be read subject to the full picture as disclosed in the evidence of Davies, Gilbert and Hollywood who were all more experienced independent expert witnesses who had made appropriate investigations into the matters upon which they had been asked to comment.

Discussion on First Issue
[251] As I earlier in this opinion set out: looking to the pursuer's experts evidence on its own (ie accepting that there was no contradictory evidence), I am of the view that it falls well short of supporting the opinion of virtual certainty at which they arrived.

[252] I am confirmed that I am correct in reaching this conclusion by reference to the defenders' expert's opinions on this issue which I am to a material extent prepared to accept.

[253] These opinions when looked at together highlight the following:

(1) The considerable competitiveness at all times for the position of quant and the very high class candidates who will be presenting themselves.

(2) The material effect on the prospects of obtaining a position as a quant due to the downturn in late 2008 resulting in less hiring and even more competition.

(3) The difficulties of a woman getting a job as a quant.

(4) The vast difference between obtaining an interview and actually getting a job.

(5) The road testing of the pursuer was a further negative factor when considering her prospects.

[254] Their overall view was that the pursuer's prospects of obtaining employment as a quant in late 2008 (although they did not place a precise percentage figure on it) was low, and very significantly lower than that placed upon it by the purser's said experts. I believe their conclusion that the pursuer's chances of obtaining a job as a quant were very significantly less than that put forward by the pursuer's experts are all reasonable on the basis of the evidence. The conclusions were all soundly based being based upon proper and full research and based on their general experience and understanding of the employment issues and the market. They had had full regard to all relevant matters, unlike the pursuer's experts. I note that their reports were each prepared from a somewhat different standpoint; the experience and background of each of the defence witnesses was somewhat different, however, they arrived at the same broad conclusion. In that they approached the question from different standpoints and yet arrived at the same conclusion in my view enhanced the cogency of their conclusion. Their views were well reasoned and supported each other forming a very powerful body of evidence.

[255] Mr Gilbert's views on the difficulties which women had was founded on his experience and on the research he had done which showed a considerable imbalance between numbers of women employed as quants and the percentage of women in the general population. This problem was in any event to some extent recognised by the pursuer's own experts. In saying that certain client banks were seeking now to redress the balance clearly illustrated that there was a problem. That certain banks were seeking to redress this does not in my view establish that at the relevant time it was not a material problem.

[256] It appears to me that each of the defenders' witnesses set forth a sound basis for attaching significant weight to these factors both individually and in particular when taken cumulatively.

[257] I am convinced that these factors when taken together with other factors to which I have earlier referred conclusively point to the pursuer's prospects of obtaining such employment at that time being materially less than the virtual certainty spoken to by the pursuer's experts.

[258] I now turn to consider the extent to which her prospects were decreased from the figure given by the pursuer's experts.

[259] As I have said no precise figure was given by any of the defenders' experts relative to her prospects. I was urged by Mr McLean to take the view that on the evidence her prospects were so uncertain I really couldn't put a figure on it.

[260] I do not believe even on the defenders' experts' evidence I would be justified in holding that that was the case.

[261] Looking to their views as a whole I believe they were concluding that the chances would be well below 50% and I believe a figure in the region of 15 to 20% chance could be justified on their evidence.

[262] However, I am not satisfied looking to the whole evidence that the pursuer's prospects were so low. I have come to the view that her chances were somewhat greater than that.

[263] I have concluded this for these reasons. Firstly Mr Gilbert unlike the pursuer's two experts did not have an opportunity to interview the pursuer. He recognised that this was a weakness in his report, and I believe he was correct to make this concession. Ms Hollywood equally had not seen the pursuer.

[264] In my opinion in assessing how likely someone is to be successful at an interview having met the person must be of some assistance. An applicant is more than a CV their personality and character must play a part. The pursuer's experts had an opportunity to interview the pursuer and formed a very favourable impression of her. This causes me to believe that the pursuer's prospect were somewhat better than those being expressed by the defenders experts.

[265] Secondly there is I believe some merit in the submission that where expressing a view on whether someone is likely to become a quant the person with direct hands on experience of taking part in that process, such as a head-hunter who specialises in such an area, has an added insight into the prospect, and gives that person an advantage in commenting over someone who has no such experience and has come to a view based on research. Two examples of this greater insight are in the context of this case: the view expressed by the pursuer's experts regarding how CERN might be regarded by certain of their clients as being a factor which to some extent would redress the balance of the pursuer not having attended Oxford or Cambridge and their understanding from certain clients that they were seeking to take steps to deal with issues of gender imbalance.

[266] That there was some advantage in being a headhunter in commenting on this issue was recognised by Mr Davies in his evidence and I believe he was correct in recognising this. This added insight is a factor which in my judgment also entitles me to increase the pursuer's prospects from the figure argued for by the defenders.

Conclusion on First Issue
[267] I am persuaded that weighing the various factors as best I can that a 30% chance, properly reflects the pursuer's prospects at that time of obtaining a job as a quant.

The likelihood of the Pursuer becoming a quant
[268] Mr Smith's position was that in seeking to identify a base line of lost income, the starting point was the certainty of the pursuer having become a front desk modelling quant. In that I have held that the pursuer's chances of becoming such were significantly less than a certainty I reject this submission.

The pursuer's likely career path
[269] The next issue is, on the assumption that the pursuer would have become a quant, what was her likely career path? The pursuer's approach was this: there was a reasonable degree of certainty as to how the pursuer's career would progress and her earnings therefrom as set out in the calculations provided to me set out in the appendix to this opinion. The defenders' position was that there were so many uncertainties that consideration of her future prospects came down to being no more than speculation. Mr Fisk in his report at paragraph 15.1 came to this view on the pursuer's prospects;

"She would probably have been an entry level quant for 3 years and a mid-level quant for 5 years".

[270] However, I note the following comments at paragraph 16.6 of the same report:

"Redundancy: having gained a position as part of the front office quantitative group in summer 08, there is a chance that Miss McGlone would have been made redundant in the following months and years as part of firm wide cuts. This is of course a realistic possibility given the global economic conditions; however, there were more quant analysts who kept their jobs during this period then lost them. Additional to this that at junior level Miss McGlone would have been malleable enough to be moulded into other positions within the Bank. Accordingly, whilst it may be the case that she would have been made redundant, it is on balance less likely and she would have retained her job". (My emphasis). The question of redundancy is clearly on the evidence of Mr Fisk a material uncertainty.

[271] In his report, Mr Fisk has assumed the pursuer would have worked as a quant in London (see: paragraph 16.5). The pursuer's position in evidence was that she was willing to be geographically mobile. Mr Fisk goes on to say that pay structures do not dramatically vary around the world. However, he highlights the issue of local tax rates. Certain evidence was led before me on this issue of taxation, in particular from Stephen Hay. Mr Smith in his submissions argued that a 20% tax rate should be applied to the pursuer's earnings across the whole of her career to reflect that she might have worked in a low tax country or a high tax country. I believe this issue of the pursuer working abroad is a very major imponderable. The pursuer may or may not have worked abroad, there is no way in which a percentage figure could be put on her chances of working abroad. It is not possible to judge at what stage in her career she would have worked abroad or for how long she would have done so. It is equally not capable of a figure being placed on the likelihood of where she would have worked and accordingly under what tax regime.

[272] In my view, given the foregoing factors, it is not an appropriate approach which can be followed in calculating loss of income that I should apply a flat tax rate of 20% across her lifetime earnings.

[273] In addition a further uncertainty is brought into the calculation of her future earnings, if I am to have regard to her working abroad. The issue which I consider is raised is this: in what currency would she be paid? I heard no evidence on this issue. However, I am not persuaded that I should assume that the pursuer would be paid in pounds sterling if working abroad. Accordingly this issue of currency is another uncertainty.

[274] As to the figures for level of pay put forward by Mr Fisk in his report, I note he says this at paragraph 16.7;

"Since 2009 the remuneration levels that have been witnessed across the front office of investment banks has been hugely varied but are beginning to become aligned once again as the major players in the market looked to calibrate their pay structures to one another".

He goes on to say this at paragraph 16.9:

"It is certainly fair to say that due to the limited profitability on many desks combined with the huge uncertainties in the market over this time, the bonuses received by many between 2008/09 were hugely varied but with the general trend being significantly less than those of a pre 2008 market".

Finally, at paragraph 16.10 he says this:

"The impact of the credit crunch on the market as a whole cannot be overestimated however and it led to easily the most varied period of remuneration across all financial markets in recent times. This means it is incredibly difficult to predict exactly the pay levels of any quant during this time as whole teams were being made redundant whilst others were receiving bumper bonuses in order to retain their best staff".

Lastly, at paragraph 16.8 there was recognition by Mr Fisk that there had been and would be further change, in the way that salaries would be structured in the City. He accepted that there would be a fundamental change towards basic salaries being a larger proportion of total compensation. He accepted that this was a major trend and was as a result of the credit crunch and government legislation related to bonus payments.

[275] In my view all of the above give rise to uncertainties as to the level of remuneration which would be received by quants in the future.

[276] The Fisk data see: 16:18 and 16:27 give two sets of earning figures for the pursuer. The first of these was based on the pursuer working for a tier one bank and the second was based on her working for a tier two bank.

[277] Mr Smith urged upon me that the figures which I should use in calculating the pursuer's loss of income were those for a tier one bank. I am not satisfied looking to the whole evidence that the pursuer would undoubtedly, had she found employment as a quant at all, have worked for a tier one bank rather than a tier two bank. This is yet another uncertainty as regards the pursuer's prospects.

[278] With respect to the length of career the pursuer would have had, it was Mr Smith's position that she would have worked as a quant until aged 55. In my view the evidence did not support my concluding that the pursuer would have worked for that length of time as a quant.

[279] Mr Fisk said this about the issue of retirement:

"Retirement is a very interesting concept in the quantative analysis world as the discipline itself is in its infancy. Due to lack of data, it is not possible to speculate with any accuracy what the likely scenario would have been". (My emphasis). (See; paragraph 18.1).

[280] He also says at paragraph 18.3:

"Having canvassed many existing quants however, a 25 year career after completing a PhD is certainly not out of the question and many suggested that this sounded accurate and achievable".

[281] It appears to me that when Mr Fisk said this:

"Due to lack of data, it is not possible to speculate with any degree of accuracy what the likely scenario would have been".

that for me to have concluded that the pursuer would have worked as a quant to 55 would have been pure speculation. There is simply not the information before me to entitle me to reach that conclusion. I believe that it is impossible to put any percentage figure on the likelihood of the pursuer working to 55 as a quant.

[282] Moreover, there is the issue of burn out, in the very high pressure jobs in the City, one of which is being a quant. It appeared to be accepted in the evidence that in general, persons working in such high pressure jobs do tend to retire at ages younger than in other sectors of the economy. Mr Fisk in relation to this issue said this at paragraph 18.12 of his report:

"The pressures of the job are of course obvious. Long days - often up to 12 to 14 hours - are expected. For how long one can sustain a career at that level and under those pressures is a matter that I do not feel able to provide an opinion upon".

[283] Leaving aside the general lack of information as to the time persons work as quants, there were further uncertainties in relation to the time that the pursuer would have worked which related particularly to the pursuer's own circumstances.

[284] It was the pursuer's position in evidence, that she wanted to have three or four children. Had she had children, this at a minimum would have required her to have one or more career breaks at unknown stages of her career. The effects on her career of such breaks are unknown. It may have had very little effect, it may have had significant effects, including the possibility that after having a number of children she would not wish to return to work or that she wished to work in a different and less pressured environment and this could have had an effect on her career and the earnings therefrom. I believe that it is very difficult to judge the extent that having children may have had on her career, its length and what she earned from that career.

[285] There is in addition to the foregoing this question: If the pursuer stepped off the quant path in her career; when would this occur; what would she then have done and what would have been her earnings? It appears to underlie Mr Fisk's report that there was a real possibility of such a move during the pursuer's career, see: for example between paragraphs 18.4 and 18.12 of his report. What the pursuer might have earned in any one of the large range of options which are referred to there is simply unknowable.

[286] At paragraph 18.13, Mr Fisk says this:

"If she impressed as a quant, that opportunity is one that she could certainly have had very realistic chances of achieving".

In this section, Mr Fisk appears to raise what is very much an uncertainty in this case when considering the pursuer's prospects and it is this: it is simply an unknown, how the pursuer would have progressed as a quant. She has no track record as a quant upon which a proper assessment of how she would have done could be based. Over and above that she had no work record in banking, such as having done an internship, which would have given a foundation for seeing how she would have got on as a quant. As I have said earlier in this opinion, it is difficult to judge how good her prospects of becoming a quant were, it is materially more difficult in judging how successful she would have been as a quant. This is in my view a very significant imponderable.

[287] Mr Smith, in his approach to damages, contended that I should take into account the prospect of the pursuer having gone to work for a hedge fund. It was his position that I should make a very substantial award on this basis.

[288] At 16.4 of his report, Mr Fisk opines that one job open to the pursuer would be something called: a hedge fund quantative strategist developer. It is not clear from the evidence before me whether this was the same as what a quant analyst did in a bank. Again I do not believe that I am able with any degree of certainty on the basis of the evidence before me to put any figure on the likelihood of the pursuer obtaining such a position and if so at what stage of her career and what figures she would have earned therefrom.

[289] The last factor in considering the pursuer's future as a quant analyst is this: would the fact that she is a woman have held her back? The general impression I formed on the evidence was that the area of investment banking and in particular the profession of quant was one which was very much dominated by males. It appeared that to some extent steps were being taken by certain banks to deal with this issue of gender imbalance. The question, however, is this: in judging the pursuer's prospects, is it a factor to be taken into account that she is a woman. It is, I judge, a factor, which in the real, rather than the ideal world, some regard has to be had. It is a factor, perhaps minor, which, in my judgment may have had an effect on the pursuer's career. It is yet another uncertainty in relation to the pursuer's prospects.

[290] In relation to her career path and future prospects had she obtained employment as a quant Ms Hollywood highlighted the following uncertainties:

(a) What her remuneration package would be, given the reduction in bonus payments (see 5:15 to 5:18).

(b) Her promotion prospects when viewed against the number of females who achieved high ranking positions in banking (see: 5:21 and 5:22).

(c) Her likely retrial age (see: 5:23 to 5:30).

(d) The effect on her career of having children.

(e) The possibility of her adopting other career paths at various stages in her career.

Mr Gilbert made similar points in sections 10 to 14 of his report.

[291] Overall, given that the pursuer's career as a quant had not started, there are in my judgment too few indicators to judge the career path which she would have followed and to place figures with any degree of certainty on her likely earnings. Given my views regarding this issue as just summarised this has an effect on the approach to loss of earnings to which I will turn later in this opinion.

Residual earning capacity
[292] There was in considering the pursuer's future loss of earnings the further issue of residual earning capacity. The submission by Mr Smith in relation to this was a short one and was this. The pursuer has no residual earning capacity.

[293] He submitted that residual earning capacity was an element in mitigation of loss. It was therefore for the defenders to prove that the pursuer would be capable of some work and thereafter to establish what that work would be and what the pursuer would earn from that. It was his position that in light of the psychological evidence the pursuer had what he described as a long road ahead before she could work at all.

[294] In addition he submitted, given that she was never asked in evidence about becoming a teacher or a lecturer, it was not possible for the court to hold that it was reasonable for her to become such. If the court were to hold, that it was reasonable, then the costs involved in retraining should be paid by the defenders and there was evidence from Peter Davies that these costs would be $50,000 per annum.

[295] Counsel for the defenders made substantial submissions on this aspect of the case. Firstly he generally submitted that in making any attempt to assess lost earnings, the court needed to take account of the pursuer's residual earning capacity. The pursuer's position had tended to the effect that career and life were over for her. She could only cuddle babies - "hold the hands of children" as she put it on day 2 of her evidence. He argued that this was grossly to underestimate her and her prospects. The Court should recall the standard of the performance at JPM, within less than a year of her diagnosis and treatment, and her persuasive performances for Messrs Fisk and Oyegbite. She still had a highly acute intelligence, her qualifications, a sophisticated knowledge of computing, and a significant level of ambition - she had taken some years out of the employment market doing things that she had found therapeutic and conducting this litigation in order to sort out her life, but once that was all done then he submitted that she had significant earning capacity available to her. Any suggestion that this pursuer would do sheltered work for the disabled, or nothing, was almost insulting to this pursuer. She had made clear in her evidence that she wanted a career she could be proud of, and that she was looking to take further courses to make that happen - e.g. at Berkley to do a course in humanitarian law, as she advised both Dr McKinlay and Professor Freeman. She had shown at LSE in 2011 that she had, in her own words, "still got it," and with suitable adaptions would be able to continue to do well on courses. She spoke on day 6 of her evidence of her commitment to making a positive contribution in whatever career she eventually turned out to have. It was clear from her notes for interviews considered on day 6 of her evidence that she considered herself to have very considerable potential. She acknowledged on that day that she had explored various options, including study in the USA, and that she was working on her life. She concluded by accepting that she wanted a career she could be proud of and that it was appropriate that she worked remuneratively.

[296] The correct prognosis, he contended, was that she would continue to get better, as she had from time to time accepted. The evidence of Professor Freeman and Dr McKinlay was that she had shown remarkable resilience, to finish her PhD, to make multiple applications to many institutions, to get interviews and do well in them, and to get herself off drugs by force of character until the litigation had intervened again. In the result, she had considerable prospects. The timescale within which she would be able to enter competitive employment was to be measured in months rather than years. In support of this he made reference to Professor Freeman's views on that point, which were that within 9-10 months of the end of litigation he would expect her to have made considerable progress and already to be fit to undertake employment or at least training. Dr McKinlay expected significant improvement within months, with or without therapy. They certainly felt that the period of five to ten years suggested by Dr Carson was excessive.

[297] Moreover, he submitted that it suited the pursuer for now to refuse to identify what it is she would actually do, rather than permit some discount to be applied to what it is submitted would be a spurious exercise based on Mr Fisk's figures. She had a report available from Mr Carter as an employment expert who dealt with future employability, but had chosen not to lead him. In the absence of any specification about this from the pursuer, the Court had the benefit of the reports from Peter Davies, Trevor Gilbert and Alison Hollywood for the defenders. These set out in some detail a range of alternative careers and earnings that the pursuer might pursue once the litigation has ceased to consume all her attention and ability. The one she had expressed interest in to the defenders' experts, humanitarian law in the USA, plainly had the potential to be significantly remunerative.

In addition as the pursuer had refused to give any clear or at least realistic guidance to the Court on what she would plan to do, it was submitted that at the least, in recognition of the pursuer's liability to take reasonable steps to mitigate her loss, it should be assumed that she would commence employment in the future earning a reasonable wage. To give full wage loss multiplier for whole of adult life would be to grossly overvalue her claim.

[298] Lastly he argued that there were even jobs in finance open to the pursuer, including less stressful, and less well-paid, mid-office quantitative jobs in risk management, or work as an actuary. The pursuer may consider them below her, but that was not a reasonable reason for her to decline to explore such avenues. The court had relevant figures here accepted by Mr Davies under reference to Mr Carter's report. Overall, it was submitted that the Court should not simply accept at face value any contention that all this pursuer could do for the rest of her life was hug babies for no pay.

Discussion: Residual earning capacity
[299] I, without difficulty, reject the submission made on behalf of the pursuer that she has no residual earning capacity. I am clearly of the view that she has such.

[300] I would observe in relation to this issue:

i My view earlier expressed that, once this case is completed, the pursuer will make a reasonably quick recovery broadly in line with the timetable put forward by the defenders' experts Professor Freeman and Doctor McKinlay.

ii My view regarding her personality and character, namely: that she is a very determined, focused and self confident individual who has always wanted to do well. I do not think that the injuries she has sustained have in anyway altered this.

iii She has an extremely good curriculum vitae to put before employers.

iv Mr Davies in his evidence said that she had shown since her injuries a lot of strength and resilience. This was evidenced by her making numerous applications for employment, whilst still not fully recovered, attending courses and seeking to obtain qualifications.

v She has done certain work with orphans since her injuries.

vi She has travelled widely and to developing countries since her injuries.

vii She was able to physically cope with the rigours of giving evidence over a lengthy period of time. I have made certain comments about this earlier in this opinion. I believe she could physically cope with full time employment.

viii Her intellect remains intact.

All of the above factors point very definitely towards someone who has a significant residual earning capacity.

[301] I believe the area in relation to which the pursuer's evidence was most exaggerated, either consciously or unconsciously, related to her ability to do any further work.

[302] As regards what the pursuer is capable of doing, I note that according to the evidence of Mr Davies, broadly supported by the evidence of Mr Gilbert and Miss Hollywood, she was capable of doing a broad range of jobs. Mr Davies in his evidence said that she had lots of options: she could, given her curriculum vitae work in academia; as an actuary; for an NGO and in the voluntary sector.

[303] As to whether she would become a quant or work in some other high earning capacity in the City I have come to the conclusion that that is no longer open to her as a result of her injuries.

[304] In coming to the above conclusion, I have had particular regard to the views of Mr Davies: he said this in his evidence:

"The pursuer has been 'away from her field' for sometime, her skills and understanding will be rusty - not up to date. In financial sector, so competitive that a bit of rust is enough to cause you to grind to a halt."

[305] This opinion expressed by Mr Davies is broadly echoed at pages 36 and 37 (p2220 and p2221) of Mr Fisk's report.

[306] I preferred this evidence to the somewhat tentative view put forward by Mr Gilbert that she might be able to obtain a City job. I also, broadly for the reasons as outlined by Mr Davies, in relation to his views on her inability to work in the City, have come to the conclusion that she could not work as a lawyer. It would appear to me that this is an equally competitive area and it would be extremely difficult for her to obtain employment therein given the very significant gap between her finishing her original academic studies and the time after requalifying she could eventually enter that employment.

[307] In considering residual earning capacity it appears to me from the evidence of the pursuer that the areas in which she is now interested in pursuing a career are in the voluntary/NGO/charity sector. She has shown an interest in orphaned children and generally expressed an interest in working in an area where she was able to be of assistance to people. I do believe she could work in this area and it would be reasonable to expect her to do so.

[308] Certain figures were given for earnings in employment within that broad area both by Mr Davies at paragraph 4.9 of his report and by Mr Gilbert in his report at paragraph 17.9 and by Miss Hollywood at 17:13. I have had regard to these figures. However, there are various uncertainties here, as to what precisely the pursuer would earn and the issue of possible promotion arises. In addition there is the issue of her having children. I have taken a broad approach to these matters as part of my calculation of loss of earnings.

[309] In considering this issue of residual employment capacity I have also had regard to the views of Mr Gilbert expressed at 17.13 of his report where he emphasises that it should not be underestimated how difficult it would be for the pursuer to enter the labour market at the present time given the gap in her curriculum vitae and where competition at the present time is very fierce particularly in the graduate market.

[310] In relation to other possible areas in which the pursuer cold be employed as suggested by the defenders' experts I find it very difficult to know how realistic it is to expect that the pursuer should enter academia or become an actuary as there was, as submitted by Mr Smith, little or no evidence about these matters. In these circumstances I do not believe that it would be appropriate to have regard to these figures.

Approach to loss of earnings
[311] Having considered the various issues regarding the pursuer's possible career, I turn to consider parties' approach as to how I should assess damages for loss of earnings. As with so much in this case, parties were poles apart in relation to how this matter should be approached.

[312] On behalf of the pursuer, I was invited to take the conventional multiplier/multiplicand approach. In expanding upon that general submission, Mr Smith said that a baseline could be established, namely: the pursuer's certainty in becoming a quant in 2008. As I understand it, he accepted that thereafter there could not be certainty as to the way in which the pursuer's career would have developed. However, it was his position that I could evaluate her claim on the basis of establishing the chance that a particular event would have occurred at a particular time. This approach has been adopted in many cases. I was referred in particular to XYZ v Portsmouth Hospitals NHS Trust [2011] EWCH 243 (QB) which contains a review of the previous cases in which this approach has been adopted and the applicable principles of law.

[313] On the other hand it was argued on behalf of the defenders that such an approach, given the uncertainties in this case was not appropriate and that I should take the approach of the kind taken in Blamire v South Cumbria Health Authority 1993 PIQR Q1. It was drawn to my attention that this was an approach that had been followed in two recent Scottish cases, namely: McGhee v Diageo Plc [2008] CSOH 74 and Brand v Transocean North Sea Ltd & Another [2011] CSOH 57. It was also an approach which was referred to in McGregor On Damages as being appropriate in circumstances of uncertainty as to a claimant's future prospects.

[314] I am persuaded that having regard to the whole circumstances of this case that it is not appropriate to adopt the conventional approach, as urged upon me by Mr Smith, and that the proper approach is that set forth in Blamire.

[315] In order to follow a conventional approach, I would have to establish a baseline figure, namely: a starting figure for an annual salary in relation to which there is reasonable certainty.

[316] Had I accepted that it was certain that the pursuer would have become a quant I could have used the Fisk figures as a base figure. However, it was not established to the level of certainty necessary that the pursuer would have in fact become a quant, for the reasons I have outlined earlier in this opinion.

[317] In Blamire, Balcolmb L J in stating why a conventional approach was not appropriate observed:

"There are far too many imponderables here for the judge to have been bound to take the conventional approach".

[318] In the case before me, I believe there are far too many imponderables to take the conventional approach. I would summarise these as follows:

i Would the pursuer have become a quant?

ii If so, would she have been made redundant, due to the financial turndown?

iii Would she have been employed at a tier one or a tier two bank?

iv Would she have been employed with a hedge fund, if so, when?

v What effect would her having children have had on her career?

vi Would she have worked abroad and if so, when and for how long and where?

vii Would she have continued throughout her career as a quant or in some other capacity of the type suggested by Mr Fisk?

viii Would she have worked until 55 and if so, in what capacity?

ix Would she have been subject to different tax regimes and if so, what would these have been?

x If she had worked abroad in what currency would she have been paid?

xi Would she have been affected in her career by the fact that she was a woman?

xii Would she have been successful as a quant?

The above factors all raised possibilities, chances and doubts as to how her career might have progressed and what she might have been paid during the course of that career. Her possible career path appeared riddled with uncertainties, doubts and imponderables. I do not believe that her career path could be defined with anything like sufficient precision to follow an approach of the type followed in the XYZ case and the cases reviewed therein. The whole uncertainty of the position regarding her prospects was summed up it seemed to me by Mr Fisk at 20.3 of his report where he says this:

"The career path that Miss McGlone would have taken is difficult to predict given the number of factors at play from the initial interview through to her success or failure as a quant; but I have outlined the remuneration ranges that a typical quant could expect to receive throughout their career".

[319] Mr Smith's approach which involved using the base figure of her employment as a quant, thereafter using the Fisk figures to establish the baseline figure and to take into account promotion, thereafter adding in a factor for possible employment at a hedge fund and saying she would have worked until 55 was on the evidence not open to me. There are simply too many possibilities, uncertainties and imponderables to take his suggested approach.

[320] Although I have held that there are uncertainties, doubts etc, which prevent me following a conventional approach, I am not saying the pursuer's claim that she would have been a high earner is entirely speculative and accordingly must fail. Rather given the foregoing, it is appropriate to use a Blamire approach and to come to a broad assessment of lost earnings.

[321] In seeking to assess a figure for loss of earnings, I have had regard to the various uncertainties to which I have referred and sought to balance these in order to arrive at a lump sum award which fairly represents the pursuer's loss of earnings. In addition, I have taken account of various factors, arising from the evidence, as providing a foundation and setting certain broad parameters in seeking to arrive at a proper figure. The particular factors to which I have had regard are these:

i The pursuer's excellent academic record.

ii My views as regards her personality and character as earlier set out including inter alia: her drive, focus, determination, resilience and toughness.

iii The acceptance by the defenders in the course of submissions to me, that but for the negligence, the pursuer would have started some reasonably high paying career in October 2008. I would say in relation to this concession by the defenders; had they not conceded this, I would have concluded on the evidence that she would have started some reasonably high paying career at that time.

iv The defenders acceptance that what they described as a generous approach would on a rough and ready basis to allow £50,000 net per annum for the pursuer's past loss. Looking to the broad spread of figures relative to possible employment which were before me this did not appear an unreasonable approach.

v That the pursuer's intention in 2008 was to take up work as a quant.

vi That I have held that the pursuer's chances of so doing were approximately 30%.

vii That I have before me the Fisk figures at 16.18 and 16.27 which provide some, if imperfect, guidance as to possible earnings as a quant. I have used the Fisk figures here, as in the end of the day they did not differ significantly from those put forward on behalf of the defenders. It appeared a reasonable approach to make use of them.

viii I have had regard to the pursuer's residual earning capacity to which I have referred earlier in this opinion.

ix Lastly, I seek to factor in to my calculation the various other possibilities, chances, etc upon which I have been unable to place any percentage figures which I have earlier listed.

Calculation of wage loss
[322] With respect to the calculation of loss of earnings, taking that background into account, I have proceeded as follows:

[323] As regards loss of earnings to date, I have taken as my starting point the figure conceded by the defenders of a net loss of £50,000 per annum. I have then had regard to the Fisk figures as set forth in the table at 16.18 in his report in order to take account of the chance that the pursuer would in fact have been a quant and progressed as set out there for the last approximately 41/4 years with a tier one bank and would have thus earned at a materially higher level than that conceded on behalf of the defenders.

[324] Looking at these two figures, the £50,000 per annum conceded on behalf of the defenders and the Fisk figures I have then had to make a broad assessment of the chances of the pursuer having obtained this higher income as a quant and I have added an allowance to that £50,000 per annum to take account of these various chances. I have in the whole circumstances added a figure of £100,000 which would give a figure for loss of earnings to date that being for a period of 41/4 years of £312,500 net.

[325] As regards the future, I would first allow the pursuer a period of two years following the final decision in this case as a period in which it is not appropriate to take account of any residual earning capacity.

[326] I have arrived at the above figure on the basis of my acceptance of the defenders' experts that she will be able to get back to work in months, rather than the substantial number of years as put forward on behalf of the pursuer by her experts. I have then allowed a period to take account of the undoubted difficulties in finding employment as particularly highlighted by Mr Gilbert.

[327] In calculating the loss for this particular time period, I have had regard to the figure conceded on behalf of the defenders and the Fisk figures and sought to assess where between these I should strike the balance having regard to all of the contingencies which I have listed.

[328] Having regard to all of the above my assessment of the appropriate figure for this branch of the claim is £180,000 net.

[329] There will require to be a figure added to cover the gap in time between the calculations carried out to give a figure for loss of earnings to date and the second calculation for the two year period.

[330] The foregoing figure arises in this way: the litigation involving the pursuer will not be completed on my issuing my opinion. There is to be a further proof to decide the issues which have been reserved.

[331] On the evidence, it is clearly the case, that the pursuer will not start her recovery until the litigation is completed. Accordingly the two year period I have assessed would only start on the completion of the case as a whole. In these circumstances the matter will, I believe, have to come back before me for an assessment of the figure of loss I should apply to that period.

[332] Looking beyond that two year period and to the future, I have had regard to the defenders' conceded figure of £50,000 net per annum, Mr Fisk's figures at 16.18 and 16.27 of his report, such figures as there were for earnings within a hedge fund and the figures of Mr Davies, Mr Gilbert and Ms Hollywood regarding possible employment within the general, charitable/NGO sphere (to reflect residual earning capacity). Thereafter I have sought to factor in all of the imponderables. Lastly in arriving at this figure I have had regard to the normal retiral age of 60 for women. In so doing I have sought to take account of the further figure sought by Mr Smith for the period beyond when he said the pursuer would retire at 55, when, according to him she would continue to work. I believe having regard to all of these factors that an appropriate figure would be £1,250,000.

[333] Accordingly applying the Blamire approach my assessment of the appropriate sum for loss of earnings gives a figure of £1,742,500.

[334] Given, I have held that there was no perfect mathematical way of calculating compensation for loss of earnings, I have been unable to lay out any precise calculations as to how I have assessed the global figure at which I have arrived. However, in order to show that this was not a figure arrived at by merely plucking it out of the air, and therefore amounted to no more that mere speculation, I have set out the considerations which I took into account. In so doing, I have sought to set forth a foundation and structure for my approach and to lay out in as much detail as possible the parameters I have applied in reaching my conclusion as to the appropriate sum to award under these heads of damage.

Interest
[335] The question of interest on past solatium and past loss of earnings require to be considered. I was not addressed on these issues and would intend to have the matter put out by order as regard the issue of interest except in so far as I have already dealt with the question of interest.

Pension loss
[336] The next head of damage which I require to consider is pension loss. The calculation of pension loss, is a function of the figure arrived at for income loss. I have concluded that a fair and reasonable approach to this issue would be to follow that suggested by Mr Smith, which was based on the evidence of Mr Davies and Dr Pollock, and that is to take 10% of the figure I am ascribing to loss of income to cover pension loss. This would give a figure of £174,250. This figure will also require to be updated at some future stage to make an allowance for the additional period I have to calculate for wage loss referred to earlier.

The discount rate
[337] Had I been applying a conventional multiplier/multiplicand approach to the calculation of loss of income, I would have had to consider the question of what was the appropriate discount rate to apply. I heard submissions on this issue and believe it proper to give my decision on the matter, even though I am not going to apply a conventional approach.

[338] The pursuer's position was a short one and was this: I should apply a zero per cent discount rate. That submission was based on two answers of Dr Pollock on the rates of return from Index Linked Government Stocks. In support of his position Mr Smith broadly relied on the decision in Simon v Helmot [2012] UKPC 5. It was the position of the defenders that I should apply a 2.5% discount rate.

[339] Mr McLean made a fairly substantial submission on this issue. He began by looking at the background to this issue which was the decision of the House of Lords in Wells v Wells 1999 1 AC 345.

[340] He submitted that in that case, the House of Lords had to consider how to fix a multiplier rate that was dependable and applicable across the range of cases in order to provide certainty. They did so by fixing a discount rate of 3%.

[341] The House made it clear that for the longer term the rate should be set under the Damages Act by the Lord Chancellor (or in Scotland, now, the Scottish Ministers) - see per Lord Lloyd at 375D-E, Lord Steyn at 388D-E, Lord Hope at 393A-C and F-G, Lord Clyde at 397F and Lord Hutton at 404. This was then pursued by the then Lord Chancellor resulting in the Damages (Personal Injury) Order 2001. The Order was affirmed in 2001, and a Statement dated 27^th July 2001 was issued by the then Lord Chancellor on the reasons for fixing the rate as it had been. It was clear from the Statement that in fixing the rate the Lord Chancellor was taking into account a broader range of considerations than just the return for the time being on Index-Linked government Stocks. The Scottish Ministers have followed suit (see the Damages (Personal Injury) (Scotland) Order 2002 (SSI 2002/46). This was also accompanied by an Explanatory Note. The legislation did leave over the possibility of a particular case requiring the fixing of a particular alternative rate (see section 1(2) of the 1996 Act). However, he submitted that the plain reading of this provision was that the difference must depend on the particular case and its facts, rather than on a broad submission that the whole economy had changed.

[342] He went on to consider what had happened in the Courts since the passing of the foregoing legislation. In England attempts had been made to have Courts select other discount rates. However these had not prospered. In Warriner v Warriner [2002] 1 WLR 1703, an attempt was made to lead evidence from a forensic accountant on the appropriate discount rate, with a view to seeking a lower rate than 2.5%. The Court of Appeal overruled the judge's decision to allow the evidence and limited significantly the circumstances in which such evidence could be led (see paras 28-35 and 39-40, per Dyson LJ: paras 41-45 per Latham CJ). A different line was taken in Cooke v United Bristol Healthcare NHS Trust [2004] 1 WLR 251, when three separate cases were considered by the Court of Appeal, again in relation to attempts to lead evidence as to what the discount rate should be. It was held that what was proposed was an illegitimate assault on the Lord Chancellor's discount rate and on the efficacy of the 1996 Act (see paras 28-30 per Laws LJ; paras 44-46 per Dyson LJ; paras 54-57, per Carnwath LJ). Since then, at least in England, no further assault had been made on the principles of the 2.5% discount rate; instead attempts had been made to have the Lord Chancellor review that rate (including by Judicial Review at the instance of the Association of Personal Injury Lawyers). He submitted that in this area there was no basis for treating these Court of Appeal decisions as other than highly persuasive.

[343] He accepted that a wide debate about the appropriate rate was live as at the date of making these submissions in light of general changed circumstances. The matter had been returned to the Lord Chancellor to reconsider, and it was understood that a consultation had been held and the results of the reconsideration were awaited. Until that happened, the Courts remained obliged to have regard to the 2.5% figure in terms of the SI and the SSI. An attempt in England to postpone hearings in cases pending the conclusion of the Lord Chancellor's consultation had failed at first instance (Love v Dewsbury [2010] EWHC 3452).

[344] It was submitted that the sum and substance of the evidence in this case - two answers from Dr Pollock on rates of return on ILGS - were insufficient for the Court to begin to second guess the Lord Chancellor and/or the Scottish Ministers on this very important general matter of principle. There was no justification whatsoever for not applying the system that had been set by Parliament and approved by the House of Lords in Wells - namely that the proper statutory authority should fix the rate applicable. Therefore, tempting though it may be to utilise other rates in Dr Pollock's spreadsheet, that should not be done.

[345] Turning to the pursuer's reliance on Simon v Helmot the Court had already heard the basis on which the defenders would distinguish that case. In terms of paras 14, 28ff, 41 and 56, per Lord Hope; para 65 per Lady Hale; para 76 per Lord Brown; para 83 per Lord Clarke; and para 107 per Lord Dyson, it is clear that the decision in that case was made (in the absence of the 1996 Act or any Order fixing a discount rate for Guernsey) by reference to detailed expert evidence firmly focused on the distinct financial and economic situation in Guernsey. In this case, no material evidence about the discount rate had been led, or at least none of any relevance to this precise case - there were only the two answers of Dr Pollock as to the rate or return on ILGS on two recent dates. The pursuer's senior counsel distinctly disavowed any reliance on any other answer that Dr Pollock gave. There was no evidence to the effect, indeed, that economic issues in Guernsey had any similarity to those in Scotland.

[346] I believe that the analysis of this issue by Mr McLean is correct. In particular for the reasons advanced by him I consider that the English cases on this matter are highly persuasive (and they all favour the defenders' argument). Equally I believe that Simon v Helmot can be distinguished for the reasons advanced by him. I do not see any evidence before me in this case which would have satisfied me that I should apply a rate other than 2.5%. Accordingly for the reasons advanced by Mr McLean, if required to apply a discount rate, I would have applied a rate of 2.5%. It would not have been appropriate to apply any other rate.

[347] There are a number of other, perhaps more minor points, which I now turn to look at in turn.

Plastic surgery
[348] The pursuer sought the cost of a plastic surgery procedure, which it was her position she intended to undergo. The cost of this was as set out by Mr Butterworth and was agreed in 6/30 of process. However, it was the submission on behalf of the defenders that this sum should not be awarded to the pursuer and that argument was put forward on this basis: despite the pursuer's assertions to the contrary in the course of her evidence, she would probably not undergo the procedure.

[349] In elaboration of this submission Mr McLean said this: the operation would involve surgery with a less that 100% chance of success, as set out in Mr Butterworth's letter. Dr Soutter had given evidence that he found a well healed, almost invisible scar across the abdomen and that no plastic surgery was necessary. Furthermore the pursuer had had ample money to have the plastic surgery carried out since May 2011 but had done nothing about it. Accordingly, it was submitted that these points showed that the pursuer would never have the surgery.

[350] Mr Smith, in reply said that I should accept the pursuer's evidence. If I did not do so then the scars would continue to be present and that fact should be reflected in any award of solatium, by an increase in the award of solatium.

[351] It is correct that the pursuer does not like doctors or medical procedures. However, she has as a result of her injury required to go through a number of medical procedures and to a real extent has had to overcome this particular fear. The proposed procedure is nowhere as serious as those she has previously had to undergo by way of medical treatment and should not therefore be a major problem for her. In addition, the pursuer struck me as someone who was much more concerned about her personal appearance than the average person. Therefore I believe that she would be highly motivated to have this procedure. On balance I do not see any particular reason to hold that she would not have this treatment and accordingly I will award her the agreed sum.

Cost of retraining
[352] This issue arose in relation to residual earning capacity. In particular it arose in relation to the possibility of the pursuer being a lawyer either in the United States or here and certain figures were given in relation to that particular profession and the cost of retraining in the United States. In considering residual earning capacity I have held that the law was not really a viable option for the pursuer. It was the only matter on which there were any figures regarding re-training costs and given my position that I am not concluding that that is a viable option, the figures are of no assistance to me.

[353] There were no other figures before me and I am therefore unable to place any figure on the cost of retraining. In relation to her going into the area which I have held was reasonably open to her in the future, I did not understand that any particular re-training was necessary.

Interest
[354] In addition to the foregoing, there is the question of interest to which I have earlier referred. It was the submission on behalf of the defenders that I should take into account in relation to interest sought on any element of damages awarded in respect of the past that an interim payment in the nature of damages was made voluntarily on 12 May 2011 of £150,000. It was submitted that this should affect the running of interest. This matter I reserve to be considered at the by order hearing earlier referred to.

Objections
[355] A number of objections were taken in the course of the proof.

[356] These were referred to by Mr Smith in submission but not by Mr McLean.

(a) Objection was taken by the pursuer as regards questioning as to whether the pursuer would have had a similar reaction to the Lletz procedure as to the procedure which she in fact underwent. I reserved my position relating to this. The objection is of no significance as the evidence was at all hands that the pursuer's reaction would have been markedly different. Given this I believe I do not require to rule on this objection.

(b) As regards Mr Walleron's evidence relative to a person taking anti-depressants and how well they would cope in the City, I ruled on this at the time. However, Mr Smith has again raised the matter. This issue can be dealt with by my saying I attached no significance to the answers which he gave.

(c) Relative to the objection on behalf of the defenders' which I reserved relative to the evidence about arbitrage, it did not appear to be insisted upon. I formally repel the objection. The evidence in any event appeared of little or no significance.

(d) As regards the objection by the pursuer to questioning on botox injections which I repelled I had no regard to the evidence on this which I did not believe to be of significance.

(e) As regards the attack on the pursuer's credibility relative to evidence given before Lord Tyre, and some difference between that evidence and the evidence being given before me, an objection was taken by the pursuer on the basis it did not address any issues in the case. In my view the questioning was relevant, however, I attached no significance to it. It was relevant as the pursuer's credibility was an issue in the case.

Decision

[357] I have not at this stage pronounced an interlocutor awarding damages, I wish to be further addressed before doing so on (a) the issue of interest; (b) expenses and (c) how, I should reflect in my interlocutor the period in relation to which I have been unable to award damages in respect of loss of earnings and pension loss.

APPENDIX

SUMMARY OF DAMAGES CLAIMS ON DIFFERING HYPOTHESES

1. PAST LOSS OF COMPENSATION

Sheet 1 represents the past loss calculated on the total figures provided by Mr Fisk for top level T1 remuneration. The total comes to £940,000. From that falls to be deducted income tax, which we submit amounts to 20% (£188,000). The resultant figure is £752,000.

2. FUTURE LOSSES

One complication is the discount rate. For reasons already advanced and ruled upon, and upon the evidence from Dr Pollock regarding the ILGS rate applicable, it is submitted that the appropriate discount rate is 0%. However, calculations are carried out for not only 0% but for 2.5%. There are therefore two sets of figures to cover the same hypothesis.

0%: hypothesis 1

The assumption made is that the pursuer would have worked as a modelling quant for five years from now, having worked in that employment for the past five years too. She would have obtained the total compensation package from the Fisk data for the past, and indeed for the next five years. Thereafter, she would have moved to hedge funds; obtained the basdic salary which AO indicated was the same as that which she would have enjoyed as a modelling quant; but the bonus would be much higher.

The figure we suggest is 20% of the midpoint in the hedge fund bonuses, being 20% of midway between £200,000 and £5m (£2.4m) which amounts to £480,000.

If we take sheet 2; and add sheet 3, the total comes to £14,811,686. A deduction for income tax (at 20% being £2,962,337) brings a figure net of tax to age 55 of £11,849,349.

2.5% calculation on the same hypothesis:

The addition is of sheet 4 and sheet 5; less 20% for income tax. The total is £10,857,661-£2,171,532) = £8,686,128.80.

0% hypothesis 2:

If it is assumed that the Fisk data should simply be taken, ignoring the possibility of moving to a hedge fund, the total amount to age 55 is £13,634,588; tax at 20% amounts to £2,727,000. Net loss amounts to £10,907,000. See sheet 7.

2.5% on hypothesis 2 per sheet 6

The amount of loss to age 55 is almost exactly £10m; tax would be about £2m at 20%; and the loss would be £8m.

OTHER LOSSES

These calculations are only to age 55. It is submitted that this is a realistic figure to adopt, but there remains the very real chance that the pursuer would have worked on for at least another five to ten years. The court is invited to make a lump sum award to recognise that chance and to make an award that reflects the probable high sums that the pursuer would have been able to command at that stage of her career.

Bearing in mind that the compensation package would have been approaching at least £1m per annum, it is submitted that a sum amounting to £5m for that period, net of tax, is not in any way unrealistic and in fact is an appropriate sum to award.

SUMMARY

It has to be observed that there are so many variable in this case that there is indeed something of an attraction for the court to make findings and for the parties to work out the calculations arising. But as our system is not necessarily as flexible as that in England to permit that, the pursuer's submission is as follows:

1. The calculation should be 0% discount rate

Part Losses of Compensation	Year	Amount
	1	100000 }
	2	150000 }	FISK DATA
	3	190000 }	[2216]
	4	225000 }
	5	275000 }
Total		940000	Total Gross of Tax = Past Loss

Sheet 1

Dr Helen McGlone v Greater Glasgow Health Board

Loss of future earnings calculator Discount rate 0.00

Age	Year	Net earnings	Discounting factor	Discounted earnings	Survival probability	Expected earnings
33	2013	£315,000	1	£315,000	0.9996	£314,860
34	2014	£350,000	1	£350,000	0.9991	£349,678
35	2015	£385,000	1	£385,000	0.9986	£384,447
36	2016	£430,000	1	£430,000	0.9980	£429,144
37	2017	£455,000	1	£455,000	0.9974	£453,819
38	2018	£200,000	1	£200,000	0.9967	£199,349
39	2019	£200,000	1	£200,000	0.9960	£199,206
40	2020	£250,000	1	£250,000	0.9953	£248,817
41	2021	£250,000	1	£250,000	0.9945	£248,617
42	2022	£250,000	1	£250,000	0.9936	£248,408
43	2023	£250,000	1	£250,000	0.9928	£248,191
44	2024	£250,000	1	£250,000	0.9919	£247,964
45	2025	£250,000	1	£250,000	0.9909	£247,719
46	2026	£250,000	1	£250,000	0.9898	£247,452
47	2027	£250,000	1	£250,000	0.9886	£247,159
48	2028	£250,000	1	£250,000	0.9873	£246,831
49	2029	£250,000	1	£250,000	0.9859	£246,464
50	2030	£250,000	1	£250,000	0.9842	£246,059
51	2031	£250,000	1	£250,000	0.9825	£245,622
52	2032	£250,000	1	£250,000	0.9806	£245,156
53	2033	£250,000	1	£250,000	0.9786	£244,659
54	2034	£250,000	1	£250,000	0.9765	£244,126
55	2035	£250,000	1	£250,000	0.9742	£243,553
56	2036		1	£0	0.9717	£0
57	2037		1	£0	0.9691	£0
58	2038		1	£0	0.9663	£0
59	2039		1	£0	0.9633	£0
60	2040		1	£0	0.9601	£0
61	2041		1	£0	0.9566	£0
62	2042		1	£0	0.9529	£0
63	2043		1	£0	0.9488	£0
64	2044		1	£0	0.9444	£0
65	2045		1	£0	0.9397	£0
66	2046		1	£0	0.9346	£0
67	2047		1	£0	0.9291	£0
			Value of future earnings			£6,277,301

Fisk for 5 years w bonus

Then basic to age 65. Add sheet 3.

Sheet 2

Dr Helen McGlone v Greater Glasgow Health Board

Loss of future earnings calculator Discount rate 0.00

Age	Year	Net earnings	Discounting factor	Discounted earnings	Survival probability	Expected earnings
33	2013		1	£0	0.9996	£0
34	2014		1	£0	0.9991	£0
35	2015		1	£0	0.9986	£0
36	2016		1	£0	0.9980	£0
37	2017		1	£0	0.9974	£0
38	2018	£480,000	1	£480,000	0.9967	£478,438
39	2019	£480,000	1	£480,000	0.9960	£478,095
40	2020	£480,000	1	£480,000	0.9953	£477,729
41	2021	£480,000	1	£480,000	0.9945	£477,344
42	2022	£480,000	1	£480,000	0.9936	£476,944
43	2023	£480,000	1	£480,000	0.9928	£476,528
44	2024	£480,000	1	£480,000	0.9919	£476,090
45	2025	£480,000	1	£480,000	0.9909	£475,621
46	2026	£480,000	1	£480,000	0.9898	£475,109
47	2027	£480,000	1	£480,000	0.9886	£474,545
48	2028	£480,000	1	£480,000	0.9873	£473,916
49	2029	£480,000	1	£480,000	0.9859	£473,212
50	2030	£480,000	1	£480,000	0.9842	£472,433
51	2031	£480,000	1	£480,000	0.9825	£471,594
52	2032	£480,000	1	£480,000	0.9806	£470,699
53	2033	£480,000	1	£480,000	0.9786	£469,745
54	2034	£480,000	1	£480,000	0.9765	£468,722
55	2035	£480,000	1	£480,000	0.9742	£467,622
56	2036		1	£0	0.9717	£0
57	2037		1	£0	0.9691	£0
58	2038		1	£0	0.9663	£0
59	2039		1	£0	0.9633	£0
60	2040		1	£0	0.9601	£0
61	2041		1	£0	0.9566	£0
62	2042		1	£0	0.9529	£0
63	2043		1	£0	0.9488	£0
64	2044		1	£0	0.9444	£0
65	2045		1	£0	0.9397	£0
66	2046		1	£0	0.9346	£0
67	2047		1	£0	0.9291	£0
			Value of future earnings			£8,534,386

Oyegbite evidence of bonus.

From age 38 to age 55 assuming.

Chance of hedge bonus.

Sheet 3

Dr Helen McGlone v Greater Glasgow Health Board

Loss of future earnings calculator Discount rate 2.50

Age	Year	Net earnings	Discounting factor	Discounted earnings	Survival probability	Expected earnings
33	2013	£315,000	0.9756	£307,314	0.9996	£307,177
34	2014	£350,000	0.9518	£333,130	0.9991	£332,823
35	2015	£385,000	0.9286	£357,511	0.9986	£356,998
36	2016	£430,000	0.906	£389,580	0.9980	£388,804
37	2017	£455,000	0.8839	£402,175	0.9974	£401,130
38	2018	£200,000	0.8623	£172,460	0.9967	£171,899
39	2019	£200,000	0.8413	£168,260	0.9960	£167,952
40	2020	£250,000	0.8207	£205,175	0.9953	£204,204
41	2021	£250,000	0.8007	£200,175	0.9945	£199,068
42	2022	£250,000	0.7812	£195,300	0.9936	£194,056
43	2023	£250,000	0.7621	£190,525	0.9928	£189,147
44	2024	£250,000	0.7436	£185,900	0.9919	£184,383
45	2025	£250,000	0.7254	£181,350	0.9909	£179,696
46	2026	£250,000	0.7077	£176,925	0.9898	£175,122
47	2027	£250,000	0.6905	£172,625	0.9886	£170,663
48	2028	£250,000	0.6736	£168,400	0.9873	£166,266
49	2029	£250,000	0.6572	£164,300	0.9859	£161,976
50	2030	£250,000	0.6412	£160,300	0.9842	£157,773
51	2031	£250,000	0.6255	£156,375	0.9825	£153,636
52	2032	£250,000	0.6103	£152,575	0.9806	£149,619
53	2033	£250,000	0.5954	£148,850	0.9786	£145,670
54	2034	£250,000	0.5809	£145,225	0.9765	£141,813
55	2035	£250,000	0.5667	£141,675	0.9742	£138,022
56	2036		0.5529	£0	0.9717	£0
57	2037		0.5394	£0	0.9691	£0
58	2038		0.5262	£0	0.9663	£0
59	2039		0.5134	£0	0.9633	£0
60	2040		0.5009	£0	0.9601	£0
61	2041		0.4887	£0	0.9566	£0
62	2042		0.4767	£0	0.9529	£0
63	2043		0.4651	£0	0.9488	£0
64	2044		0.4538	£0	0.9444	£0
65	2045		0.4427	£0	0.9397	£0
66	2046		0.4319	£0	0.9346	£0
67	2047		0.4214	£0	0.9291	£0
						£4,837,540

As previous sheets with 2.5%

Sheet 4

Dr Helen McGlone v Greater Glasgow Health Board

Loss of future earnings calculator Discount rate 0.00

Age	Year	Net earnings	Discounting factor	Discounted earnings	Survival probability	Expected earnings
33	2013		0.9756	£0	0.9996	£0
34	2014		0.9518	£0	0.9991	£0
35	2015		0.9286	£0	0.9986	£0
36	2016		0.906	£0	0.9980	£0
37	2017		0.8839	£0	0.9974	£0
38	2018	£480,000	0.8623	£413,904	0.9967	£412,557
39	2019	£480,000	0.8413	£403,824	0.9960	£402,222
40	2020	£480,000	0.8207	£393,936	0.9953	£392,073
41	2021	£480,000	0.8007	£384,336	0.9945	£382,210
42	2022	£480,000	0.7812	£374,976	0.9936	£372,588
43	2023	£480,000	0.7621	£365,808	0.9928	£363,162
44	2024	£480,000	0.7436	£356,928	0.9919	£354,021
45	2025	£480,000	0.7254	£348,192	0.9909	£345,016
46	2026	£480,000	0.7077	£339,696	0.9898	£336,234
47	2027	£480,000	0.6905	£331,440	0.9886	£327,673
48	2028	£480,000	0.6736	£323,328	0.9873	£319,230
49	2029	£480,000	0.6572	£315,456	0.9859	£310,995
50	2030	£480,000	0.6412	£307,776	0.9842	£302,924
51	2031	£480,000	0.6255	£300,240	0.9825	£294,982
52	2032	£480,000	0.6103	£292,944	0.9806	£287,268
53	2033	£480,000	0.5954	£285,792	0.9786	£279,686
54	2034	£480,000	0.5809	£278,832	0.9765	£272,280
55	2035	£480,000	0.5667	£272,016	0.9742	£265,001
56	2036		0.5529	£0	0.9717	£0
57	2037		0.5394	£0	0.9691	£0
58	2038		0.5262	£0	0.9663	£0
59	2039		0.5134	£0	0.9633	£0
60	2040		0.5009	£0	0.9601	£0
61	2041		0.4887	£0	0.9566	£0
62	2042		0.4767	£0	0.9529	£0
63	2043		0.4651	£0	0.9488	£0
64	2044		0.4538	£0	0.9444	£0
65	2045		0.4427	£0	0.9397	£0
66	2046		0.4319	£0	0.9346	£0
67	2047		0.4214	£0	0.9291	£0
						£6,020,121

Sheet 5

Dr Helen McGlone v Greater Glasgow Health Board

Loss of future earnings calculator Discount rate 0.00

Age	Year	Net earnings	Discounting factor	Discounted earnings	Survival probability	Expected earnings
33	2013	£315,000	0.9756	£307,314	0.9996	£307,177
34	2014	£350,000	0.9518	£333,130	0.9991	£332,823
35	2015	£385,000	0.9286	£357,511	0.9986	£356,998
36	2016	£430,000	0.906	£389,580	0.9980	£388,804
37	2017	£455,000	0.8839	£402,175	0.9974	£401,130
38	2018	£525,000	0.8623	£452,708	0.9967	£451,234
39	2019	£600,000	0.8413	£504,780	0.9960	£502,777
40	2020	£625,000	0.8207	£512,938	0.9953	£510,511
41	2021	£650,000	0.8007	£520,455	0.9945	£517,576
42	2022	£675,000	0.7812	£527,310	0.9936	£523,952
43	2023	£675,000	0.7621	£514,418	0.9928	£510,696
44	2024	£675,000	0.7436	£501,930	0.9919	£497,842
45	2025	£675,000	0.7254	£489,645	0.9909	£485,178
46	2026	£675,000	0.7077	£477,698	0.9898	£472,830
47	2027	£675,000	0.6905	£466,088	0.9886	£460,790
48	2028	£675,000	0.6736	£454,680	0.9873	£448,917
49	2029	£675,000	0.6572	£443,610	0.9859	£437,336
50	2030	£675,000	0.6412	£432,810	0.9842	£425,987
51	2031	£675,000	0.6255	£422,213	0.9825	£414,818
52	2032	£675,000	0.6103	£411,953	0.9806	£403,970
53	2033	£675,000	0.5954	£401,895	0.9786	£393,308
54	2034	£675,000	0.5809	£392,108	0.9765	£382,894
55	2035	£675,000	0.5667	£382,523	0.9742	£372,658
56	2036		0.5529	£0	0.9717	£0
57	2037		0.5394	£0	0.9691	£0
58	2038		0.5262	£0	0.9663	£0
59	2039		0.5134	£0	0.9633	£0
60	2040		0.5009	£0	0.9601	£0
61	2041		0.4887	£0	0.9566	£0
62	2042		0.4767	£0	0.9529	£0
63	2043		0.4651	£0	0.9488	£0
64	2044		0.4538	£0	0.9444	£0
65	2045		0.4427	£0	0.9397	£0
66	2046		0.4319	£0	0.9346	£0
67	2047		0.4214	£0	0.9291	£0
						£10,000,209

Fisk data leaving aside hedge funds through to 55.

Sheet 6

Dr Helen McGlone v Greater Glasgow Health Board

Loss of future earnings calculator Discount rate 0.00

Age	Year	Net earnings	Discounting factor	Discounted earnings	Survival probability	Expected earnings
33	2013	£315,000	1	£315,000	0.9996	£314,860
34	2014	£350,000	1	£350,000	0.9991	£349,678
35	2015	£385,000	1	£385,000	0.9986	£384,447
36	2016	£430,000	1	£430,000	0.9980	£429,144
37	2017	£455,000	1	£455,000	0.9974	£453,819
38	2018	£525,000	1	£525,000	0.9967	£523,291
39	2019	£600,000	1	£600,000	0.9960	£597,619
40	2020	£625,000	1	£625,000	0.9953	£622,044
41	2021	£650,000	1	£650,000	0.9945	£646,404
42	2022	£675,000	1	£675,000	0.9936	£670,702
43	2023	£675,000	1	£675,000	0.9928	£670,117
44	2024	£675,000	1	£675,000	0.9919	£669,502
45	2025	£675,000	1	£675,000	0.9909	£668,842
46	2026	£675,000	1	£675,000	0.9898	£668,122
47	2027	£675,000	1	£675,000	0.9886	£667,328
48	2028	£675,000	1	£675,000	0.9873	£666,445
49	2029	£675,000	1	£675,000	0.9859	£665,454
50	2030	£675,000	1	£675,000	0.9842	£664,359
51	2031	£675,000	1	£675,000	0.9825	£663,179
52	2032	£675,000	1	£675,000	0.9806	£661,921
53	2033	£675,000	1	£675,000	0.9786	£660,578
54	2034	£675,000	1	£675,000	0.9765	£659,140
55	2035	£675,000	1	£675,000	0.9742	£657,593
56	2036		1	£0	0.9717	£0
57	2037		1	£0	0.9691	£0
58	2038		1	£0	0.9663	£0
59	2039		1	£0	0.9633	£0
60	2040		1	£0	0.9601	£0
61	2041		1	£0	0.9566	£0
62	2042		1	£0	0.9529	£0
63	2043		1	£0	0.9488	£0
64	2044		1	£0	0.9444	£0
65	2045		1	£0	0.9397	£0
66	2046		1	£0	0.9346	£0
67	2047		1	£0	0.9291	£0
						£13,634,588

As previous, but at 0%

Sheet 7

Solatium	175,000
Past wage loss net of tax	752,000
Loss to age 55	11,849,000
Loss from 55 to 60	5,000,000
Total loss of income		17,601,000
Pension at 10% of income	1760100
Scar revision	3750
	19,539,850