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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Donnelly v. FAS Products [2004] ScotCS 73 (19 March 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/73.html Cite as: 2004 SCLR 678, [2004] ScotCS 73 |
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OUTER HOUSE, COURT OF SESSION |
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A3353/00
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OPINION OF LORD BRODIE in the cause KERRY DONNELLY Pursuer; against FAS PRODUCTS LIMITED Defenders:
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Pursuer: Allardice; Thompsons,
Defenders: MacSporran; Bishops
19 March 2004
Introduction
[1] The pursuer is Kerry Donnelly. She lives in Holytown, by Motherwell. The pursuer was born on 1 May 1979. She sues her former employers for damages in reparation for a severe crushing and burning injury to her left (dominant) hand sustained on 5 June 2000 when she was working as a production assistant in the defenders' factory. Liability has been admitted. There is no issue as to contributory negligence. The proof which I heard was accordingly concerned only with the quantification of the pursuer's claim for damages. [2] The pursuer suffered her injury while using a machine which moulded pie shells. Among the moving parts of the machine were two components which were guarded by a removable interlocked guard. Their purpose was to mould and then trim lumps of dough, thereby forming pie shells. The pursuer removed the guard in order to clean off a piece of dough which had become stuck. She expected that removal of the guard would shut down the moving parts of the machine. On this occasion it did not. The pursuer's left hand was crushed under a descending component. The pursuer's hand remained trapped for some ten minutes before it was freed. The part of the machinery in which the pursuer's hand was trapped was at high temperature. The pursuer's hand was severely burned. No other part of her body was injured in the accident. The pursuer suffered extreme pain. [3] I heard the evidence of the pursuer; Mr James Campbell Semple, a retired consultant orthopaedic and hand surgeon; Dr Rao, the pursuer's general medical practitioner; Dr Jennifer Elizabeth Caldwell, an occupational therapist; John Ellis, occupational therapist; Brian Keith, an employment consultant and careers adviser; Mrs Margaret Irwin, the pursuer's mother; and Mr Mark Broomfield, a lecturer in prosthetics and orthotics. The evidence of Sir Michael Bond, formerly Professor of Psychiatry at the University of Glasgow, had been taken on commission. The report of the commission was lodged as number 19 of process. [4] After hearing the evidence, I allowed the pursuer to amend the Closed Record by inserting the words "support and comfort" after "zips" where that word occurs at page 15B. [5] Parties were agreed that the appropriate award for solatium is £57,500. I was advised that there has been an interim payment of damages in the sum of £50,000, made on 5 December 2002. I was invited to make my assessment of the various heads of damages and, having done so, have the case brought out by order, in order that parties might advise me as to the final computation of damages, having regard to the interim payment, interest and the requirement to deduct benefits. I shall do so.The medical treatment received by the pursuer and the physical consequences of her injury
[6] The agreement between the parties as to the appropriate amount to be awarded by way of solatium meant that less evidence was led as to the exact nature of the pursuer's injury and the medical treatment that she received than otherwise might have been the case. She was taken to the Glasgow Royal Infirmary by a fellow employee. She was treated with morphine and diamorphine. She underwent a series of operations, the last of these being in August 2002. Her fingers on the left hand, other than the stump of her index finger, were removed. She retains her thumb (described by Mr Semple as normal in all respects). A graft of muscle tissue was taken from her right arm and a skin graft was taken from her right thigh for use in the re-construction of the pursuer's hand. She described the result of these operations as having left her with a hand which is "unsightly", "abnormal", "a mess". The appearance of the hand in August 2000 is illustrated in a number of photographs which are lodged as number 6/8 of process. Number 6/8/12 of process illustrates that part of the inside of the pursuer's right arm from which muscle tissue was taken and 6/8/15 illustrates that part of her right thigh from which a skin graft was taken. More recent photographs of the pursuer's left hand are appended to Mr Semple's report dated 23 July 2003, 6/14 of process. The pursuer feels embarrassed about the appearance of her hand and her right arm. She regards her hand and arm as unsightly. She keeps them covered when she can. The pursuer is not similarly concerned about the appearance of her leg. The pursuer is able to make a pinch grip between her thumb and what remains of her index finger, as is illustrated in one of the photographs appended to 6/14 of process. This allows her, for example, to pick up and carry her handbag and to hold a pile of photographs, but not to pick up a kettle full of water. Sometimes she drops things. She is able to do up "some" buttons but she cannot fasten or unfasten her bra. She uses her right hand if she wishes to pull a zip. The pursuer is conscious of cold. She is not now in pain but she did suffer pain for more than six months after the accident. The current condition of the pursuer's hand is permanent. [7] Initially, the pursuer's mother, Margaret Irwin, had to "do everything" for her. She helped care for the pursuer in hospital. When the pursuer was discharged from hospital her hand was heavily bandaged. She had no useful function in the hand and required a lot of assistance from her mother. Despite improvement in her condition, the pursuer has continued to receive help from, and spend most of her time with, her mother. She accepted in cross-examination that her mother has been over-protective of her. When Mrs Irwin came to give evidence she said that she had been told that she was over-protective of the pursuer but explained that she was always concerned that the pursuer might hurt herself. In his report on his interview and examination of the pursuer carried out on 5 July 2002, number 6/10 of process Mr Semple records the pursuer's account to him of her mother always standing behind her in the kitchen in case she injures either hand on cooking equipment and he offers the view that it would be much better if the pursuer were allowed and indeed encouraged to make a life of her own. When it was put to Professor Sir Michael Bond, in the course of cross-examination, that the pursuer's mother was over-protective, he accepted that she might be regarded as over-protective but that her daughter was showing very dependent childlike behaviour which elicits in a mother protective behaviour in response. He thought that this was to be regarded as a normal phase in the process of getting through this problem. [8] The pursuer has been and remains clearly very significantly disabled by reason of having lost the greater part of the index finger and all of the remaining fingers of her dominant left hand. When asked, during examination in chief, whether she was now able to look after herself, the pursuer said that there were some things that she was still not able to do. She gave the instance of food preparation. This was the only example she was able to give of a task requiring two hands with which she might experience difficulty. She explained, at another point in her evidence, that she sometimes cooks but that she finds that she cannot put things in the oven. She has difficulty with shopping when it involves purchasing a number of items. She said that she cannot put groceries into a bag. She drops items that she wishes to purchase. It is difficult for her to count money. The pursuer will avoid shopping for clothes when the shops are busy. [9] The pursuer is able to use a washing machine but said that she could not hand wash. The pursuer said she could hoover. Her mother, on the other hand, gave hoovering as an example of something which the pursuer no longer did. [10] The pursuer and her mother live together. No one else lives in the house. With the exception of the holiday in Greece which is referred to below the pursuer and her mother have not been separated since the accident. The pursuer said that as she has got better she has become able to go out alone but she is happier when someone is with her. If unaccompanied she may "get into a panic". She therefore generally goes out with her mother. About six months after the accident she had felt able to go out to the pub with her sister. The pursuer confirmed that she got benefit from the emotional support of her mother. [11] When Mrs Irwin was asked, subject to an objection by Mr MacSporran that there was no record for this line of evidence, whether the pursuer would be able to set up home on her own, Mrs Irwin said that she did not think that the pursuer would be able to cope as most tasks needed two hands and the pursuer had only a pinch grip in her left hand. The report by Dr Caldwell, number 6/20 of process, which was spoken to by Dr Caldwell in evidence, expresses the view, at page 18, that should the pursuer get married and therefore move out of her mother's house, she would require additional help with housework and later, should she have a family, she would require additional help such as a nanny or children's help. The pursuer was not asked about any of this beyond saying that "hopefully" she could see a future in which she was married with children, although she was not thinking of this at present. I shall return to what is to be made of Dr Caldwell's evidence later in this opinion. [12] The pursuer said in evidence that she was scared of trains. She could use buses but wished to have someone with her because she had difficulty in holding on in order to maintain her balance when standing. It was helpful to have someone else to pay. She finds it easier to use a taxi than a bus. This avoids the problems associated with getting in and out of a bus and paying the fare. Prior to the accident the pursuer might take a taxi once or twice a week. The pursuer does not now drive nor has she ever driven a motor car. [13] Before the accident the pursuer helped in the house. She washed her own clothes and helped with shopping, cooking and other household chores. She kept her room tidy. She now does not do so much. Prior to the accident the pursuer also helped her aunt by babysitting her two children. She has not done this since the accident. She would be "a bit nervous watching them in case they hurt themselves". She now does not have the same degree of patience as she formerly had.The pursuer's home circumstances and the psychological consequences of her injury
[14] At the time of the accident the pursuer lived in family with her mother, her father and her younger sister, Jenny (now 19 years of age). She regarded herself as a normal young woman who enjoyed dancing and going out with her friends in Motherwell and Hamilton. She was not easily upset. In evidence she described herself as profoundly emotionally affected by the accident. On a scale of 1 to 10, she assessed the degree of this at 10. She compared the effect upon her of the loss of the fingers of her left hand to a death. She felt bitter about the accident. She had lost her dominant hand because of someone's mistake. She felt resentment and anger towards her younger sister, who, in contrast to her, had an appearance and functional abilities which were unimpaired. Mrs Irwin described the pursuer as being aggressive and bad-tempered when she returned home from hospital. The pursuer's sleep was disturbed. She suffered nightmares about the accident. She slept with her mother for a period of about six months. She was scared "like a child". Professor Bond described this as regression towards the childhood state, meaning that the pursuer behaved more like a child than an adult. She no longer suffers from nightmares. I understood from the evidence of Professor Bond that he regarded regression towards the childhood state as a phase. I understood the pursuer to have passed through it. [15] Dr Rao considered that the psychological impact of the accident on the pursuer has been as important as its purely physical impact. He had first found her to be clinically depressed in 2000. He prescribed Amitriptyline, an anti-depressant, and Loprazolam, a sedative, in order to help her sleep. Later the prescribed dose was increased. A second anti-depressant, Citalopram, was added in January 2003. The pursuer has also been prescribed a further anti-depressant, Seroxat, and a tranquilliser, Thioridazine. [16] The pursuer's history includes two episodes of self-harm through drug overdose. The pursuer was admitted to the Psychiatric Department of Monklands Hospital on 15 February 2002. She admitted to taking an impulsive overdose of Amitriptyline and Tramadol. She was discharged from hospital on 17 February 2002. The pursuer was examined by the duty psychiatrist at Wishaw General Hospital (a senior house officer) on 14 June 2003. She was intoxicated and there was reason to believe that she had ingested as many as 16 Amitriptyline tablets. She gave a history of low mood, reduced appetite, impaired concentration and reduced sleep. It was Dr Rao's view that this demonstrated that the pursuer was still depressed as at June 2003. He considered that her depression was mainly related to the accident. The pursuer was taking anti-depressant medication on a daily basis until a few weeks before the proof. As at the date of proof she was trying to manage without medication. [17] At the time of her accident the pursuer had a boyfriend. They have since split up. She described her reaction to this as "I thought no one wanted me any more". She described an occasion, which I took to have made an impression upon her, when she had been out and a young man had approached her but when he noticed her injured hand he walked away. [18] As I have already indicated, as the pursuer has recovered she has become able to go out alone, but she is happier when there is someone with her. She prefers to go out with her mother. The pursuer does not very often go out socially. I gained the impression that since the accident mother and daughter have spent the greater part of their waking hours together, with Mrs Irwin caring for the pursuer much as a mother would with a young child. [19] However, since the accident the pursuer has been on holiday to Greece with a friend. When the pursuer described this in evidence it was my impression that she had enjoyed herself and that she had been less self-conscious about her injury than was the case at home because she was among people who did not know her. On the other hand, when she came to give evidence, Mrs Irwin said that the pursuer had not enjoyed herself. Mrs Irwin had not seen any difference in the pursuer's demeanour on her return from holiday. [20] The pursuer has attended a clinical psychologist, Dr Marie Fitzpatrick, in relation to the emotional impact of her accident but has only done so since October 2002. Prior to that date she received nothing by way of sustained counselling or sustained professionally provided psychological support. Initially the pursuer saw Dr Fitzpatrick weekly, now she sees her once every two weeks. The pursuer considers that she is benefiting from this treatment. [21] Mr Semple saw the pursuer on 13 October 2000 (report 6/1 of process). He saw her again on 5 July 2002 (report 6/10 of process). Mr Semple saw the pursuer most recently on 11 July 2003 (report 6/14 of process). His report on that most recent interview and examination indicates that he found an improvement in her attitude. He described her as much more positive and outgoing. He found it easy to have a conversation with her. She met his eye without difficulty. He reported her as no longer keeping her hand covered and using it to gesticulate when appropriate. Mr Semple expanded upon this in evidence. He said that on 11 July 2003 he found her to be enormously improved. She was chatting and acting in a normal fashion. Previously she had been a "psychological mess". Mr Semple was familiar with the "Slough of Despond" into which patients with maimed hands often descend. He recognised the pursuer as having been despondent but he considered that she had recovered well from this condition. [22] In his report dated 30 July 2001 (prepared following examination and interview of the pursuer and interview of her mother on 10 July 2001), number 6/6 of process, to which he spoke when giving evidence on commission, Professor Sir Michael Bond gave the opinion that the accident suffered by the pursuer, with its consequent catastrophic injury, resulted in a marked psychological reaction with the characteristics of post traumatic stress disorder, DSM IV 309.81, with a phobia of hot objects and working with industrial machinery, DSM IV 309.29. He found her behaviour to be marked by a regression to a child-like state of dependency on her mother. While the symptoms of post traumatic stress disorder had lessened as at July 2001, the pursuer's phobic symptoms remained. In addition, the pursuer exhibited an adjustment disorder with mixed anxiety and depressed mood, DSM IV 309.28. Professor Bond interviewed and examined the pursuer again on 9 July 2002. His report on that examination and interview is number 6/7 of process. He spoke to the contents of that report when giving evidence. On a questionnaire completed immediately prior to the interview in July 2002, the pursuer scored highly for both depression and anxiety. This was not consistent with her clinical presentation during interview. Professor Bond concluded that the pursuer was down-playing her symptoms when being interviewed by him. The pursuer wore gloves when she came to Professor Bond's clinic. The pursuer told Professor Bond that she was very self-conscious about the appearance of her left hand. This was confirmed by Professor Bond's observations. Professor Bond concluded his report of 9 July 2002 in the following terms (which were read to and confirmed by him when giving evidence on commission): "Miss Donnelly's lack of engagement in social activities, or with rehabilitation, her general low level of interest, her tendency to remain in bed, her feelings of being 'fed up' and her anxieties in shops unless accompanied by her mother, all indicate that she has not yet fully adjusted emotionally to her disabilities and the losses, as she perceives them, in her life. It is most regrettable that she has not received any professional help whatsoever from a clinical psychologist during the past year. She needs urgently a programme that will help develop coping strategies, improve her level of motivation, and reduce her anger at her plight. A serious attempt should be made to deal with these issues because, with help, I believe that Miss Donnelly's level of emotional adjustment may be improved considerably with the result that she will have the capacity to enjoy her home and social life once more and consider a suitable form of work. Although the provision of a prosthesis will help I believe that it alone will not bring about such changes." Professor Bond saw the pursuer again on 19 August 2003. On this occasion the pursuer was not accompanied by her mother, who was unwell. Professor Bond's report on this examination and interview of the pursuer is dated 26 August 2003 and is number 6/15 of process. Again, Professor Bond spoke to the terms of that report when giving evidence on commission. Among the medical records to which he was referred there was a letter from Dr Marie Fitzpatrick, chartered clinical psychologist, dated 18 December 2002. Professor Bond accepted that it painted a rather blacker picture of the pursuer's emotional condition than had been reported by the pursuer to him. It appeared that the pursuer had not revealed to Professor Bond everything that had been happening. Specifically, she did not disclose the episode which occurred on 15 February 2002. Professor Bond considered that that more had been revealed to Dr Fitzpatrick than to him might reflect the fact that Dr Fitzpatrick was a woman. However, Professor Bond conducted a review of the pursuer's general practitioner's records dated between 10 July 2001 and 19 May 2003 in respect of which he prepared a supplementary report dated l2 September 2003, lodged as 6/22 and 6/23 of process. As a result of that review, Professor Bond concluded that the pursuer's emotional state has been significantly more disturbed than had been conveyed in his previous reports. In his opinion she will require further psychological treatment which will have to continue even after she acquires a prosthesis. In cross-examination Professor Bond explained that he thought the pursuer's main psychological problem now was anxiety rather than depression. Her anxieties related to her physical disability, her feelings about the appearance of her hand and her dyslexia. A component in her present condition was her anxiety relating to the current case. This added significantly to the background level of anxiety which the pursuer experienced all the time. However, in Professor Bond's opinion, this would settle down quite quickly after the case was concluded. He considered that the pursuer will remain sensitive about the damage sustained to her hand for a period of up to three years. He confirmed that it was advice that the pursuer should receive treatment in respect of the psychological sequelae of her accident. He confirmed that he considered that the pursuer should be encouraged to go into a rehabilitation programme once her prosthesis has been supplied. As I understood Professor Bond's evidence, the programme he had in mind would be at a specialist centre (he offered as an example a programme provided by Rehab Scotland) and would be primarily focused on fitting the pursuer for employment. He acknowledged that the pursuer had reported to him that she had found Dr Fitzpatrick's work had been of significant help to the pursuer. [23] The pursuer's disability and the time and energy devoted to the pursuer by Mrs Irwin have had an adverse affect upon family relations. There were difficulties between the pursuer and her father. Mrs Irwin explained that the need for her to care for the pursuer meant that her relationship with her partner did not get priority. The pursuer's mother and her father are now separated. I accept that a material cause of this was the pursuer's accident and the response it evoked from the pursuer's mother. The way that it was put in evidence by Professor Bond is the relationship between the pursuer and her mother has fragmented the family and has to be resolved. In his opinion, this meant that not only the pursuer but also Mrs Irwin required professional help. It appeared to me when listening to Mrs Irwin give evidence that she has found her daughter's accident and its consequences, including this litigation, very stressful indeed. Her impatience with what was entirely proper cross-examination was telling. Family relationships have clearly been distorted, the pursuer's injury and Mrs Irwin's perception of her consequent disability having taken priority over everything else.The proposed prosthesis
[24] The pursuer proposes to purchase a prosthetic hand from Dorset Orthopaedic Company Limited, Ringwood, Hampshire. She has attended for two fittings and she hopes to take delivery of the prosthesis in the near future. Its purchase price is £3947. A quotation in that sum is 6/16 of process. The pursuer paid a deposit of £1973 towards the purchase price on 8 October 2003. Number 6/18 of process is a receipted invoice in that sum. The prosthesis is of the nature of a glove which will fit over and around what remains of the pursuer's left hand. The pursuer's thumb will remain free. The prosthesis will be of cosmetic benefit. It will not improve the function of the pursuer's left hand. It is usual for a wearer to have two prostheses, of slightly different hue, one being worn in summer, the other in winter, with a view to approximating the change of skin colour consequent on sun-tan. They will require to be replaced by reason of wear and tear. Mr Semple, thought that a prosthesis should last at least a couple of years before requiring replacement (if the wearer uses two). Mr Broomfield was very familiar with the prostheses which are made by Dorset Orthopaedic. He knew that some patients had one prosthesis for winter and another prosthesis for summer. His evidence was that the lifespan of a prosthesis very much depended on its use. With heavy use it might last a year. With lighter use it might last 5 to 6 years. If appearance was important a patient might wear a prosthesis at work but Mr Broomfield would not recommend a patient to wear a cosmetic prosthesis when working. His evidence was that most patients do not wear a prosthesis at home. It is similar to a heavy glove. If a cosmetic prosthesis of the type supplied by Dorset Orthopaedic was not worn at home or at work but only when travelling between, Mr Broomfield considered that it might last between 5 and 10 years. However, in cross-examination, under reference to a letter written by Mr Semple, dated 20 September 2002, number 6/13 of process, in which Mr Semple refers to the standard practice of recommending two prostheses and goes on to state that a prosthesis will normally last two years if it is being actively used Mr Broomfield readily conceded a life of two years as "very likely". It was not absolutely clear to me that Mr Broomfield, when answering the question, had in mind the wearer having two prostheses available to her or, indeed, as would appear to be the case from his earlier evidence, that she might only wear a prosthesis for a few hours each day. However, there was no re-examination on the point and it did appear to be Mr Semple's evidence that a prosthesis will have a life of about two years assuming that it is worn for only part of the year. Accordingly, having regard to both Mr Semple's evidence and that of Mr Broomfield, I find that should she choose to wear a Dorset Orthopaedic prosthesis, the pursuer will have to replace it once a year. [25] That the pursuer might have a prosthetic hand was first raised by Mr Watson, who treated her. A prosthesis would be available free of charge to the pursuer as part of what is available from the National Health Service. However, when the pursuer had received an appointment in order to explore what might be done, this was cancelled by Mrs Irwin because it was her understanding that the pursuer was to undergo further surgery and that therefore it was premature for her to be fitted for a prosthesis. I was left with the impression that this matter might have been dealt with better. However, I consider that there is nothing in the circumstance that this appointment was cancelled to support a suggestion that the pursuer is other than genuine in her expressed wish to acquire a prosthesis. Indeed, the pursuer appeared to be very enthusiastic about the prospect of having a prosthetic hand. She considers that it would make her feel better and that, as a result, she would be better able to get on with things. She anticipates that with a prosthesis she will feel able to go out alone more readily than is the case at present. Her mother shares the pursuer's view that she will get a psychological benefit from wearing a prosthesis. When the pursuer had her fitting at Dorset Orthopaedic her mother saw "a wee glint of the old Kerry". Mrs Irwin was pinning her hopes on an improvement.Employment
[26] The pursuer left school in 1997. I did not understand her to have obtained any formal qualifications beyond standard grades at foundation level. She had difficulty reading and writing. She is dyslexic. She obtained a job with the defenders as a production operator and worked with them for a period of about a year and a half. After that she left as she did not get on well with a supervisor. She went to work with Lyons Speciality Foods. She worked for that company for a period she described as being about two years and then returned to work for the defenders in 2000. The supervisor with whom the pursuer did not enjoy a good relationship had left. Nothing turns on the exact periods during which the pursuer was employed by these two employers. I took the pursuer to be giving broad estimates of her periods of employment but to be indicating that she had been steadily in employment from leaving school until the date of her accident. She said that she enjoyed working as a production operator. At the time of her accident the pursuer was earning something of the order of £140 per week net of deductions. The parties are agreed that had the pursuer continued in the defender's employment her current annual net earnings would amount to £8029. I understood from Mr Allardice that that is the net equivalent of the minimum wage paid in respect of a 40 hour week. The pursuer's own assessment of her capacities, having regard to her dyslexia, was that she was not capable of doing a job which involved, for example, reading a manual or filling in forms.
[27] It was the pursuer's evidence, which I accepted, that had it not been for the accident she would have proposed to have remained in employment, even in the event that she married and had children. [28] Since the accident the pursuer has had a job working for two hours a day, two or three days a week, in a nursery over a period of about a month. She felt awkward. The children asked her about her injury. She did not know what to say. She did not feel able to continue. [29] The pursuer would like to work. The question arises as to what employment, if any, she is now capable of. She would be too afraid to work with machinery, something noted by Professor Bond. As I have already indicated, it is Professor Bond's belief that the pursuer's confidence will improve after the resolution of her claim for damages and the provision of a prosthetic hand. Rehabilitation (which Professor Bond considered should be at a specialist centre) will then be possible, opening up the prospect of the pursuer obtaining work. His estimate was a further three years before the pursuer could return to work, although it might not be as long as that. Mr Semple thought that the pursuer has been fit for a broad range of occupations from perhaps the Spring of 2003 but he accepted that he had not submitted the pursuer to any sort of formal assessment. Mr Ellis did carry out such an assessment on 12 September 2002. His report, to which he spoke in evidence, is number 6/12 of process. He found that the pursuer had good balance. He found that she was able to perform tasks in the postures of sitting, standing, stooping and crouching and kneeling and had no difficulties changing between these postures but that she did not have the necessary physical abilities to perform the duties of a machine operator or that of any work requiring lifting and handling with two hands. He identified two jobs which matched the pursuer's abilities: nursery nurse and a packer of light goods, but he accepted that the need for formal training (which the pursuer is disinclined to undertake) and the pursuer's self-consciousness about her appearance made nursery nursing an inappropriate choice. Mr Keith gave evidence under reference to his reports, numbers 6/11 (prepared after interview on 2 May 2001) and 6/17 (prepared after consideration of the reports there identified and a telephone conversation with the pursuer) of process. He considered that, for functional reasons, it was very unlikely that the pursuer would obtain work as a packer of light goods. In his evidence Mr Keith canvassed a number of occupations which might be suitable for the pursuer but in respect of each he considered that there were significant barriers which would have to be overcome by the pursuer in order to obtain and then retain employment. Looking at each individual possible occupation for the pursuer he did not find it easy to see her working in that capacity. He found it difficult to identify a job for which the pursuer was a strong candidate. The pursuer's embarrassment at her appearance was important. The pursuer has no formal qualifications (which an employer might look for less because they are necessary for the job but because they demonstrate that the job applicant is capable of sustained effort). She has few transferable skills. She has little interest in lengthy re-training. She is dyslexic. She will find it difficult to fill in a job application form or to complete any written test she might be required to do. The pursuer has been out of work for more than three years. Potential employers are suspicious of job applicants who have been out of work for even a few months. She cannot drive which might make access to work difficult. She is disadvantaged in the employment market. Nevertheless, given her youth and what Mr Keith described as her enthusiasm about returning to employment and looking to the generality of the labour market (as opposed to looking at specific occupations), he considered that there was a reasonably good chance of the pursuer finding work at some future point in time. For someone of the pursuer's age, it is likely that something will turn up. That assessment assumed an improvement in what Mr Keith understood to be the psychological condition of the pursuer. I took Mr Keith's information as to the psychological condition of the pursuer to be based on the reports by Professor Sir Michael Bond which are referred to in Mr Keith's report 6/17. [30] Mr Ellis considered that the pursuer will require preparation, advice and support in making the transition back into work or training. Mr Keith identified the possibility of initially working in supported accommodation ("Workstep") as a route into open employment. In October 2004 the protection provided by the Disability Discrimination Act 1995 will be extended to all sizes of employer. In Mr Keith's opinion, it would be surprising if this did not improve the prospects for disabled persons in the employment market. In cross-examination Mr Keith offered the opinion that it would take a minimum of one year, perhaps two, before the pursuer would succeed in obtaining employment. [31] Mr Keith considered that "theoretically" the pursuer might have worked until she was 65, had it not been for the accident. Similarly, should she obtain employment in the future she might retain it until she was 65.The evidence of Dr Jennifer Caldwell
[32] Dr Caldwell is an occupational therapist. She has worked in the field since 1974. She now teaches occupational therapy and since 2000 she has been the professional lead of the Department of Occupational Therapy at the School of Health Studies, The Robert Gordon University, Aberdeen. She is a doctor of philosophy. This degree was awarded in 1997. The subject of her thesis was "Self Assessment Skills of Occupational Therapy Students". Her list of papers presented at conferences, which is part of her curriculum vitae (incorporated within productions 6/9 and 6/20), would suggest a particular interest in the topic of self-assessment by students. [33] Since 1995 Dr Caldwell has acted as an expert witness, providing what are described in her curriculum vitae as "services reports" to solicitors and courts and appearing in court to speak to these reports. Dr Caldwell spends some 6 to 8 hours per week preparing such reports. Productions 6/9 and 6/20 are examples. They relate to the pursuer. Production 6/9 is dated 3 September 2002. Production 6/20 is dated 10 October 2003. Production 6/20 is, in large part, a restatement of production 6/9. As appears from paragraphs 1.1 and 1.2 of the reports and as was explained by Dr Caldwell in evidence, she interviewed the pursuer on a visit to the pursuer's home on 31 August 2002. She met and spoke to the pursuer's mother. She had sight of the reports prepared by Mr Semple and Professor Sir Michael Bond which are dated prior to 31 August 2002. She had sight of a precognition of the pursuer dated 3 August 2000. Dr Caldwell did not have further contact with the pursuer subsequent to 31 August 2002. However, Dr Caldwell described production 6/20 as updating production 6/9 and clearly she intended 6/20 to supersede 6/9. Her evidence was led under reference to 6/20. Essentially, Dr Caldwell's evidence in chief was a recitation of the terms of 6/20 of process. [34] Dr Caldwell's report, 6/20, is divided into ten parts. Part 10 contains Dr Caldwell's curriculum vitae. Part 1 is headed "Introduction and background information". At paragraph 1.3 Dr Caldwell identifies the purpose of the report as being to: detail the help and assistance required by the pursuer following her accident, provided by her immediate family; quantify help and assistance required; detail the help and assistance required in the future; and estimate financial costs involved in any future help and assistance required. The remainder of part 1 provides information about the pursuer, her accommodation and the nature of her disability. This information is consistent with and does not go beyond what was spoken to in evidence by the pursuer and other witnesses. For that reason I accept it as accurate. Part 2 of the report is headed "Personal/functional needs assessment". It is introduced with the sentence:"The following opinion of care required is based on professional judgement and experience of working with individuals with similar conditions to that experienced by Miss Donnelly."
Notwithstanding the terms of the introductory sentence, what follows is an account of consequences of the pursuer's disability, with the look, as is the case with part 1, of having been derived from the identified medical reports and either the precognition of the pursuer or the interview of her. Much, but not all, of what appears in part 2 is consistent with what was spoken to in evidence by the pursuer and other witnesses. Part 2 includes assessments, judgements and conclusions. It is not always made clear upon what basis these assessments, judgements and conclusions are presented. Merely by way of example, I mention a sentence which appears in paragraph 2.8:
"Miss Donnelly's reliance on her mother led to strained relationships within the family and as a result her father moved out of the home setting up in a flat nearby."
That is a conclusion as to the relationship between cause and effect. It may well be a correct conclusion. It is certainly not inconsistent with other evidence that I heard during the proof and it is not very different from the finding that I record at paragraph [23] above. It was not challenged in cross-examination. However, if one was limited to reading Dr Caldwell's report, one would be left not knowing what is the provenance of this conclusion. It might simply be the reported view of the pursuer and therefore hearsay, admissible hearsay, but hearsay nonetheless. Similarly, it might be the reported view of her mother. It might, on the other hand, be an inference drawn by Dr Caldwell from such information as is available to her. If it is an inference, however sound it may be, Dr Caldwell has stepped into the role of fact-finder. That is usually the role of the court. I accept that this particular matter was largely cleared up, almost at the end of Dr Caldwell's re-examination, when she said that:
"I was told that a reason why the pursuer's father had left was the extra support which her mother was giving to the pursuer".
She did not say by whom she was told this. I stress that I have no reason to doubt the accuracy of this statement, either as it appears in the report or in its slightly different formulation in the course of Dr Caldwell's evidence. However, I see the presentation of this particular piece of information as illustrating the difficulty I had in ascertaining precisely what it was that the evidence of Dr Caldwell had to offer towards the resolution of the case. This is obviously crucial when it comes to the assessment of what damages are to be awarded under reference to sections 8 and 9 of the Administration of Justice Act 1982 ("the 1982 Act").
[35] Part 3 of Dr Caldwell's report is headed "Additional help required." Paragraphs 3.1, 3.2 and 3.3 set out the rates payable per hour to agency provided personal carers, home helps and home companions from 1 February 1992 until the date of the report. The source of this information is helpfully identified as being 2003 Facts & Figures, Tables for the Calculation of Damages compiled and edited by members of the (English) Professional Negligence Bar Association under the general editorship of Robin de Wilde QC, a publication that I would suppose to be very familiar to all personal injury practitioners. Dr Caldwell quotes the hourly rates gross (this, she explains, includes VAT on agency commission and a provision for employer's National Insurance contribution and holiday accrual) and net. As can be seen from Facts & Figures (4th edition) at page 235, Dr Caldwell appears to have taken the gross rates of the British Nursing Association, but in a footnote at page 12 of 6/20 she states that these rates are consistent with rates paid by Crossroads Scotland. The net figure is derived by deducting 20 per cent from the gross figure. In paragraphs 3.4, 3.5 and 3.6, Dr Caldwell allocates numbers of hours per week against particular periods (dictated by the dates upon which pay rates changed) as against personal help, psychological support and loss of services which would have been provided by the pursuer to other members of her family. I note that Dr Caldwell heads paragraph 3.4 "Estimate of additional personal help given by family" (emphasis added). The evidence led from the pursuer and Mrs Irwin at proof was restricted to help given to the pursuer by her mother. The hours allocated by Dr Caldwell are set out in multiples of seven per week, reflecting her choice of one, two or three hours per day. In relation to the past, the hours allocated against additional personal help for a particular period are always the same as the hours allocated against psychological support for the same period but they are cumulative hours. For example, for the period 26 February 2003 to 1 October 2003 Dr Caldwell allocates 7 hours per week to additional personal care and a further 7 hours per week to psychological support. When I asked Dr Caldwell about the almost exact correspondence of personal care hours to psychological support hours in respect of the past (it does not apply in relation to the future), she replied that there was no particular reason for this. It was simply coincidence. In order to quantity the value of the services provided and services lost Dr Caldwell sets against the allocated hours the net rates for personal carers in respect of personal help and psychological support and the net rates for home helps and home companions in respect of the services that would otherwise have been provided by the pursuer to members of her family. This produces a total of £16,246.51 as Dr Caldwell's estimate of additional personal help given by family for the period 2 June 2000 until 1 October 2003; £16,102.24 in respect of psychological support for the same period; and £4990.02 for loss of services provided by the pursuer, again for the same period. In part 5 of her report Dr Caldwell brings out a total of £39,616.77 as her total estimate of past (up to 1 October 2003) care provided by the family, services by the pursuer lost to the family and extra costs incurred. Part 4 of the report lists a number of un-vouched travel costs to which is added £10 in respect of the purchase of a tin opener. Part 6 is headed "Future care". It provides a cost of future care at £11,937.64 per annum in respect of "personal activities", psychological support, lost services and of taxi fares, to which a further £10,000 per annum for domestic help is to be added in the event that the pursuer sets up her own home and yet a further £11,265 per annum is to be added for child care in the event of the pursuer having children. Parts 7 and 8 of the report are in the form of summaries of what has gone before. [36] What is absent from Dr Caldwell's report is any explanation as to how she arrives at the numbers of hours which she allocates to additional personal help and psychological support both in respect of the past and in respect of the future. Dr Caldwell did, however, give some evidence about this. When asked why she allocated 21 hours per week to particular periods she began by saying that this is what she had been told by the Donnelly family. She qualified this by saying that the number of hours was based on her personal knowledge, from experience of how long "people with disabilities" take to carry out tasks. At another point in her evidence she said that what she had said was "based on her professional judgement". When asked why she chose 28 as the number of hours for the period of six months following the discharge of the pursuer from hospital, whereas the number of hours for the period of in-patient care had been 21, Dr Caldwell replied that it would probably have taken the pursuer 3/4 hour to dress. Dr Caldwell identified hair care, tying shoe laces, doing up zips, cutting and painting toe nails, shaving legs and managing money in a shop as activities with which the pursuer would require assistance. She gave the instances of washing dishes, helping with meals, cleaning her room, hovering and shopping as services which the pursuer could no longer perform for her family. In the future Dr Caldwell thought that the pursuer would require help with buttons and doing her hair. Dr Caldwell's 7 hours per week for "personal activities" in the future is the same as the number of hours allocated to additional personal help given by the family as at 1 October 2003. The same can be said about the 7 hours in respect of lost services provided by the pursuer. When asked if she had made any allowance for possible improvement in function on the pursuer's part, Dr Caldwell said that she had not. It would appear therefore that Dr Caldwell assumes that the current level of care provided and services foregone will continue for some unidentified time into the future. While Dr Caldwell currently allocated 7 hours per week to psychological support, she increased this to 21 hours per week for the future. When asked about this in examination-in-chief, her explanation was that this would be required when the pursuer returned to work and began to socialise with her friends. In cross-examination, she accepted that the psychological component in any services required by the pursuer may reduce as the pursuer adjusts to her situation but Dr Caldwell immediately qualified that by saying that the pursuer may (on the other hand) need additional psychological support. In re-examination, Dr Caldwell said that the pursuer may need additional support "in the early months or years" of her going back to work. Beyond that Dr Caldwell provided no explanation of the figures she put forward for the future. In particular, there was no explanation as to why she suggested the figure of £10,000 for domestic help in the home or £11,265 for child care. These figures, as far as I could discern, were presented on no identified factual basis whatsoever other than the hypothesis that the pursuer had set up her own home and had had one or more children. [37] When asked by Mr MacSporran in cross-examination what was her understanding of the pursuer's ability to do up zips or buttons, Dr Caldwell thought that the pursuer could possibly do so but with extreme difficulty. She did not know whether the pursuer was able to hold a pile of photographs with her right hand and flick through them with her left hand. As to whether the pursuer could hold a purse in her left hand, Dr Caldwell thought that she possibly could, but it would depend upon the style of the purse. When asked if she was aware of the provisions of sections 8 and 9 of the 1982 Act, she replied that she was. When asked whether she had applied her mind to the statutory "necessary services" test provided by the statute ("such sum as represents reasonable remuneration" for "necessary services ...rendered", in terms of section 8; and "reasonable sum by way of damages in respect of the inability to render ...personal services, in terms of section 9) she replied "yes". Beyond the proposition being put to Dr Caldwell that a lot of the services were not necessary and the totals were overly inflated, with which she disagreed, the matter was not taken further either by Mr MacSporran or Dr Caldwell.Quantification of damages
Solatium
[38] As I have recorded above, parties were agreed that the appropriate award for solatium is £57,500, that 50%of that sum should be allocated to the past and 50% to the future, and that interest should run on the past element at the rate of 4% from 5 June 2000 until the date of decree and that interest should run on the whole sum from the date of decree at the rate of 8%.Cost of medical treatment
[39] This relates to the provision of a cosmetic partial hand prosthesis. I understood counsel to be agreed that the cost of the prosthesis which the pursuer has ordered should be recoverable as damages. This is amounts to £3947, payable in two equal instalments: the first on 8 October 2003, the second at a future date. In addition, the pursuer and her mother have incurred or will incur travelling costs totalling £1600 in relation to fitting her prosthesis. I understood counsel to be agreed that this cost was recoverable. [40] On the basis of the evidence discussed above, I have found that should the pursuer choose to wear a Dorset Orthopaedics prosthesis she will require to replace it each year at an annual cost of £3947. Table 20 of the Ogden Tables, 4th edition gives something in excess of 30 as a full life multiplier for the pursuer. Mr Allardice invited me to apply that multiplier to the multiplicand of £3947 to produce a rounded figure of £120,000. Mr MacSporran submitted that the evidence did not justify such an award. In order to recover future costs or outlays it was for the pursuer to establish that she will in fact incur these costs or outlays. In relation to a prosthetic hand it was for the pursuer to prove that she was indeed going to replace it each year and that she will meet the cost out of her own funds. This, Mr MacSporran submitted, she had failed to do. The pursuer had given no evidence that she would pay for a prosthesis beyond the one that had been ordered. Mr MacSporran reminded me that prostheses were available under the NHS. She might never wear a prosthesis. She had received interim damages in the sum of £50,000 in December 2002 and yet it was only in the latter part of 2003 that she had taken steps to acquire a prosthesis. One might think if she was indeed anxious to obtain a prosthesis that she would have acquired it by now. If the court was inclined to award damages on the basis that the pursuer would replace the prosthesis she was in process of acquiring, it should calculate damages on the basis of replacement only once every five years. [41] In my opinion, on the evidence led, it is Mr Allardice's approach which is to be preferred. The pursuer, who is a young woman, has suffered a disfiguring injury in respect of which she is entitled to reparation. In so far as money can achieve this she is accordingly entitled to be put in the position in which she would have been had it not been for the defender's breach of duty. I have accepted the evidence that she is very conscious of her cosmetic defect and would wish to conceal this by wearing a prosthesis. She has taken steps to obtain a prosthesis which was commended by the well qualified experts who gave evidence on this matter, Mr Semple and Mr Broomfield. On the evidence she will require to replace that prosthesis from time to time and she might reasonably wish to have two prostheses at any one time in order that she would have the option of wearing a slightly differently coloured one during the summer months in order that it better approximates her natural skin tone. If the pursuer has two prostheses that will obviously prolong their lives because each prosthesis will be worn less frequently than would be the case if the pursuer had only one. That was taken into account by Mr Semple and, as is discussed at paragraph [24] above a life of two years was accepted by Mr Broomfield. I am not sure what more the pursuer could do by way of proving that she probably will incur the cost of replacing the prosthesis each year for as long as she chooses to wear it. She is not obliged to use the National Health Service in order to acquire a prosthesis: Law Reform (Personal Injuries) Act 1948 section 2(4). While I cannot be certain that the pursuer will in fact choose to replace her prosthesis every year, I consider that she is entitled to be put into such a position that she is able to do so. A prosthesis is a poor substitute for lost fingers but it is the only substitute that is available. The principle of restitutio in integrum applies. If it is necessary for the pursuer to succeed in recovering the whole life cost of replacement that I find that she probably will replace the prosthesis each year by private purchase (assuming that she is placed in such a financial position as to allow her to do so), then I make that finding. I award £120,000 under this head. No claim was advanced for travelling costs associated with future purchases of prostheses.Loss of earnings to date
[42] The parties are agreed that the pursuer has suffered a net loss of wages amounting to £22,965 and that interest should run thereon at the rate of 4% from 5 June 2000 until the date of decree.Future loss of earnings
[43] The parties are agreed that had the pursuer continued in the defender's employment her current annual net earnings would amount to £8029. I understood from Mr Allardice that that is the net equivalent of the minimum wage paid in respect of a 40 hour week. Mr Allardice argued that in order to quantify future loss of earnings I should apply a multiplier to an annual multiplicand of £8029. The multiplier should be selected by assuming employment to age 65. That meant that the appropriate Ogden Table was table 26. At the current discount rate of 2.5% that gave a figure before adjustment of 25.37 for a 24 year old female such as the pursuer. Mr Allardice referred me to section B of the Explanatory Notes to the Ogden Tables. He suggested adjusting for contingencies other than mortality by applying a factor of 0.97. He characterised the pursuer's employment as low risk but this was exactly balanced by the pursuer's employment being located in Scotland. Thus, had the pursuer been so disabled that she was unlikely to work again, Mr Allardice would have put forward a multiplier of 24.61. He did not argue that that was in fact the position. The pursuer was not entirely unfit for employment. However, it would be three years before the pursuer would be ready to look for work. Then she would face a job search of up to two years. She had few transferable skills. She was dyslexic. Accordingly, while it was appropriate to discount the full disability multiplier of 24.61 in order to allow for the prospect of the pursuer obtaining employment the discount should reflect the likely delay and difficulty in the pursuer finding a job and the likely difficulty which will then experience in keeping it. Under reference to the decision of Lord Macfadyen in Duffy v Macfish 2001 SLT 833, Mr Allardice suggested a discount of 25%, giving a multiplier of 18.15. He also referred to McDonald v Chalmers 2000 SLT 455 at 458E and Wilson v Pyeroy Ltd 2000 SLT 1087 at 1091L to 1092A with a view to encouraging me to take as my starting point a multiplier derived from the appropriate Ogden Table without looking for further evidence of, for example, rates of return on investment. [44] On the basis of the evidence led, Mr MacSporran did not accept that the starting point was Ogden Table 26. His submission was that each case depended on its own circumstances but it was for a pursuer to prove his or her loss by satisfactory and sufficient evidence. This, he said, the pursuer had not done. Accordingly, the pursuer's damages under the head of future loss of remuneration should be restricted to the amount which represents the minimum that can reasonably be inferred as appropriate on the basis of such evidence as there is: Clark v Sutherland 1993 SC 320 at 323. Mr MacSporran first reminded me of the evidence to the effect that the pursuer was fit for employment or would be fit for employment within a short period of time. Mr Semple thought that the pursuer has been fit for a broad range of occupations from perhaps the Spring of 2003. Professor Bond's estimate was a further three years before the pursuer could return to work, although it "could be sooner". It was important to bear in mind that Professor Bond did not have before him the information that the pursuer had a concrete plan to go to Dorset Orthopaedics. The pursuer's own evidence was that she had found Dr Fitzpatrick's treatment of assistance and that once the current proceedings were over that would remove a source of anxiety. Mr Keith had said that he hoped and thought that the pursuer would obtain a job in one year or two. Mr MacSporran then turned to what he submitted was the unsatisfactory state of the evidence. The pursuer had said that she would have continued to work in the factory notwithstanding her wish to marry and have a family (as I have found) but that the future was nevertheless left obscure as to what she would have been doing in 10 or 20 or 30 years time had it not been for her accident. It was therefore inappropriate to take a multiplier from Table 26 with a view to applying a multiplier (albeit an adjusted multiplier) to a multiplicand of a year's loss of earnings. Mr MacSporran's submission was that I should award no more than three years loss or £24,087. If I was against him on that, I should award no more than a loss over ten years, computed as three years at an annual loss of £8029 and a further seven years at half that annual figure. Another way of stating that would be the figure derived from an annual multiplicand of £8029 and a multiplier of 6.5. Either way, Mr MacSporran's alternative figure for future loss of earnings was £52,182. This is to be contrasted with Mr Allardice's figure of £145,726.35. [45] I have no difficulty in accepting Mr Allardice's submission that in a case where the multiplier/multiplicand method of assessing loss over a period of years is appropriate, the court should simply take a multiplier from the Ogden Tables, using the currently approved discount rate, without looking for other evidence as to rates of return. I would further respectfully agree with the approach taken by Lord Reed in Wilson v Pyeroy Ltd supra at 1092 H to L which is to use the Tables and their Explanatory Notes as precisely as is possible and not to modify the resulting figures by judicial approximations or such adjustments as are thought to be reasonable based on the practice adopted prior to the decision in Wells v Wells [1999] 1 AC 345, when the discount rate was implicitly assumed to be 4% or 5% and it was thought that allowing for contingencies required quite severe discounting of multipliers. That said, because Mr Allardice accepts that this is not a case where the pursuer is disabled for life and it is therefore uncertain as to whether, and if so when, the pursuer will return to work and in that event whether she will retain employment, the initial precision of his arithmetic is quickly abandoned in favour of broad discounting, reminiscent of the pre-Wells approach. Indeed Mr Allardice concluded his submissions on this head of damages by expressly not demurring from the suggestion that the court would wish to deal with the matter as broadly as possible. I see the court as having no alternative but to do just that. [46] I reject Mr MacSporran's submission that the pursuer's evidence was unsatisfactory. It is true that the pursuer said little about her future intentions. She did, however, indicate that she intended to continue to work in the future and that that would have been her intention even if she had married and had children. Given her age at the time of her accident it is hardly surprising that her evidence did not go beyond that. It is important, in my opinion, to bear in mind that the pursuer was being paid quite modest remuneration and that the agreed rate which she is to be taken to have earned had she not been injured is no more than the minimum wage. Prior to her accident the pursuer had a history of steady employment. This is not a case where the court is being invited to speculate about career advancement or indeed to do anything other than to assume continued employment at the most basic level of earnings. [47] As is explained by Lord MacFadyen in Duffy v Macfish supra at 840I, what Mr Allardice was inviting me to do was to discount the actuarially derived multiplier to reflect the pursuer's prospects of obtaining and retaining suitable employment. As Lord MacFadyen puts it at 840I:"The better the pursuer's prospects of employment, the heavier the discount ought to be. It is not, however, a matter capable of precise calculation."
It is in fact not far short of a guess, albeit a guess informed by the available evidence. My interpretation of that evidence is that the pursuer faces very real difficulties in re-establishing herself in the workplace. On this I prefer the evidence of Mr Ellis, Mr Keith and Professor Bond to that of Mr Semple. I accept what Mr Semple had to say about the effectiveness of the pursuer's pinch grip and the date by which she had such a grip. These are matters on which he is well qualified to give evidence. I am not persuaded, having regard to Mr Semple's evidence and the other evidence in the case, that I should rely on his estimate of the date by which the pursuer should be regarded as capable of taking up employment. Her significant physical disability, her current low level of skills, her dyslexia and her associated disinclination to embark on training mean that the jobs she is suited for are very limited. Psychologically, she is not yet fit for work. In looking for work she will be disadvantaged in not having worked for a considerable period of time. On the other hand all those who gave evidence thought that she would be successful in getting a job. She wants to be employed. She is young and personable. In my judgement, with appropriate rehabilitation and assistance in placement, it is likely that she will be successful in obtaining full-time work, albeit in perhaps three or four years time. There will remain the issue of whether the pursuer will retain the job that she gets. Doing as best I can in all the circumstances and having regard to the guidance available from Lord MacFadyen's opinion in Duffy supra, I accept Mr Allardice's approach of discounting from a multiplier of 24.61 (assuming therefore that the pursuer would have worked to age 65) but, reflecting my judgement as to the pursuer's prospects of getting and retaining employment (bearing in mind that she is not yet fit to look for a job), I adopt a heavier discount of 40%. I will round up the resultant multiplier slightly to 15. The damages under this head will accordingly amount to £120,435
Additional travelling expenses
[48] The pursuer avers that:
"She has incurred cost for travelling to and from medical appointments. She requires to use taxis as she has difficulty using buses. She will continue to incur such travelling expenses in the future."
Mr Allardice submitted that I should award damages in the sum of £2278 in respect of the past. That is the sum brought out in paragraph 4 of Dr Caldwell's report. As far as the future is concerned, I should adopt Dr Caldwell's figure of £9 per week, set out in paragraph 6.1. The annual equivalent of that is £468 and, in Mr Allardice's submission, I should apply a whole life multiplier of 30.84 (Ogden Table 20) to that figure in order to produce a total of £14,433.
[49] Mr MacSporran questioned the assistance to be got from a care report when considering the extra cost of travel. The pursuer would have been a better source of evidence. Despite the absence of direct evidence on the point, he was prepared, however, to concede £1000 as far as the past was concerned. Looking to the future, while he accepted that the pursuer was disabled and had given evidence as to her embarrassment when using public transport and her problems in managing change, it was a matter of everyday experience that many people, the elderly or young mothers with children, for example, used buses despite the difficulty that that presented. The pursuer was a fit young woman. She should not be regarded as being unfit to use a bus. He submitted that no more than a lump sum of £1000 should be allowed in respect of future travelling difficulties. [50] I prefer the approach of Mr MacSporran. I consider the point he made in cross-examination about the use of a bus pass as a means of avoiding difficulty in handling change to have been a valid one. I shall have more to say about the evidence of Dr Caldwell but where quantification of outlays is in issue, it is not sufficient to present estimates in the guise of expert evidence: cf Gordon v Wilson 1992 SLT 849 at 855K to 856F. In the circumstances I shall award the figures conceded by Mr MacSporran under this head: £1000 for the past and a further £1000 for the future.Services
[51] The pursuer makes claims, both in respect of the past and the future, under reference to sections 8 and 9 of the Administration of Justice Act 1982. The relevant averments begin at page 14 of the Closed Record of 28 October 2003 and continue on page 15. They are in these terms:"Following the accident the pursuer's mother and sister have rendered extensive necessary services to her. They continue to do so and will do so in the future. The pursuer has been unable to render personal services to her family and remains unable to do so. Initially after the accident and following the pursuer's operations, she has required assistance with all aspects of personal and daily living, including washing, bathing, hair care, feeding and drinking and providing psychological support and comfort. At home the pursuer required assistance with washing, bathing, dressing, personal hygiene and toileting as well as with support and comfort. She continues to require assistance with tasks such as tying shoelaces, fastening buttons, using zips, support and comfort and two-handed tasks. Previously the pursuer assisted with domestic tasks in the house such as washing clothes and dishes and shopping. She was unable to do so for a while and remains restricted. She also was in the habit of baby-sitting for younger members of the family."
"Another exception to the general rule against examining witnesses on matters of opinion, occurs wherever the issue involves scientific knowledge, or acquaintance with the rules of any trade, manufacture, or business with which men of ordinary intelligence are not likely to be familiar ... A foundation for such an examination must always be laid by ascertaining whether the witness is a person of skill or an 'expert' (the English term), under which is included those who have a theoretical acquaintance with the subject, as well as men who speak from practical knowledge."
I accept that Dr Caldwell is a person who has a theoretical acquaintance with and practical knowledge of the science or discipline of occupational therapy. That she also prepares "services reports" on a regular, and I assume, commercial, basis, neither advances nor detracts from that. What I do not accept is that this particular case gives rise to an issue which "involves scientific knowledge, or acquaintance with the rules of any trade, manufacture, or business with which [persons] of ordinary intelligence are not likely to be familiar". The propositions that the court is asked to accept are: (1) that the pursuer has required and will in future require the assistance of her mother in a number of ways; (2) that the assistance which has been and will probably be provided by Mrs Irwin takes the form of "necessary services" as that expression is to be understood in terms of section 8 of the 1982 Act; (3) that, had it not been for the accident, the pursuer would have done things for her relatives which she now cannot do; and (4) that the doing of these things would have amounted to the rendering of personal services as that expression is to be understood in terms of section 9(3) of the Act. Propositions (1) and (3) are matters of fact, readily understood by persons of ordinary intelligence. Propositions (2) and (4) are matters of law. It is true that the court must also determine what represents "reasonable remuneration" for section 8 services and "a reasonable sum by way of damages" in respect of the inability to render section 9 services, and that, on the authority of Forsyth's C.B. v Govan Shipbuilders Ltd 1988 SLT 321 at 327A to B and Clark v Sutherland, 1993 SC 320 at 323H, that evidence should be led to enable the court to assess accurately what in all the circumstances a reasonable remuneration in respect of services rendered by a relative would be. However, there is no need for opinion evidence in relation to reasonable remuneration. In the case of Kendal v Carl Davies to which I was referred, Lady Paton accepted that the primary measure of damages for services and paid care should be the value of the services and the cost of the paid care. It is reasonably clear from consideration of that decision and the authorities to which Lady Paton was referred, that by "value of the services", she had in mind a figure derived from what would be the cost of purchasing equivalent services commercially. That is certainly the approach she adopted in the case of Wallace v Paterson supra, to which I was also referred. It accordingly may be necessary to lead evidence of the rates charged commercially for equivalent services in order to provide the court with some basis for determining what is, in the circumstances of a particular case, reasonable. However that is simply evidence of fact. I say that it "may" be necessary to lead evidence of the rates charged commercially for equivalent services. In this case Dr Caldwell reproduced, with due acknowledgement, rates which are collected in Facts & Figures supra. I would respectfully commend her for so doing. Facts & Figures is a compilation of what the foreword to the first edition describes as the building blocks of information and aids to calculation needed in the preparation of schedules of damages. It is a work which is or should be readily available to counsel. Its contents should be capable of agreement without the need for the leading of evidence. Once commercial rates have been established or agreed it is a matter for the Court, in the circumstances of the particular case, to determine what is reasonable remuneration, in the light of the evidence as to commercial rates.
[61] As I have indicated, I do not consider this to be a case where there is proper scope for opinion evidence and for that reason I would not be inclined to attach weight to the report spoken to by Dr Caldwell. However, even if I am wrong as to whether opinion evidence has any place in this particular case in relation to the services claims, I have not been persuaded by Dr Caldwell that I should have regard to her views. Dr Caldwell put forward figures for the hours per day spent and to be spent, on average, in providing services to the pursuer. She said that these figure were based on her "professional judgement". However there was no explanation as to what she meant by that. There was no explanation of what, in particular, was the nature of the expertise that allowed her to make a judgement which could not be made by someone who lacked her expertise. There was no explanation as to how such expertise was applied in order to produce conclusions. Accepting that Dr Caldwell has knowledge, based on experience, of how long "people with disabilities" take to carry out particular tasks, she did not explain how exactly she had used this knowledge in this particular case, or, more importantly, why her knowledge of "people with disabilities" was to be preferred to information, derived from primary sources of factual evidence, about this particular pursuer, with all her individual abilities and disabilities. Dr Caldwell gave no explanation of the process which led to her choosing a particular number of hours per day or per week. She disclosed nothing in the way of reasoning which could be examined with a view to determine what weight, if any, was to be given to what were put forward as her conclusions. This is simply not good enough. The relevant authorities are very familiar. As Lord President Cooper observed in Davie v The Magistrates of Edinburgh 1953 SC 34 at 40:"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, any more than a technical assessor can substitute his advice for the judgment of the court - SS Bogota v SS Alconda 1923 SC 526. Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the judge or jury. In particular, the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry very little weight, for it cannot be tested by cross examination nor independently appraised, and the parties have invited the decision of a judicial tribunal and not an oracular pronouncement of an expert."
The point was put more succinctly, and more robustly, by Lord Avonside in Assessor for Lothian Region v Wilson 1979 SC341 at 349:
"It cannot be over-emphasised that no Committee or, for that matter, no Court, is in any way bound to accept expert evidence or to be dictated to by experts."
In Loveday v Renton and Welcome Foundation Limited [1990] Med LR 117, where what was in issue was whether administration of the pertussis vaccine could cause brain damage in young children, Stuart-Smith LJ said, inter alia, this about his general approach to the (very substantial) expert evidence in that case (supra at 125):
"In reaching my decision a number of processes have to be undertaken. The mere expression of opinion or belief by a witness, however eminent, that a vaccine can or cannot cause brain damage does not suffice. The court has to evaluate the witness and the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. ..."
Dr Caldwell made assertions. She entirely failed to explain to my satisfaction why she made these assertions. She disclosed no reasoning. She did not persuade me that she had fully taken into account the pursuer's abilities and disabilities as spoken to by the pursuer in evidence. This is no more than ipsa dixit. In cross-examination, Dr Caldwell said that in coming to the figures that she had put forward she had applied her mind to what is meant by "necessary services" in section 8. I cannot avoid the conclusion that, at best, what Dr Caldwell has done is to act as fact finder and then assessor of the facts she considered that she had found in order to state a number of hours that she considers might be attributed to "necessary services". These are tasks for the court (based on evidence led), not for a witness, however eminent that witness may be.
[62] In the circumstances, while I have considered Mr Allardice's submissions under reference to 6/20 of process, I attach no weight to Dr Caldwell's report as a source of evidence, other than in relation to commercial rates of remuneration. This throws me back on the other evidence in the case. There was not very much which would allow the assessment of necessary services provided and personal services foregone in terms of hours per day or hours per week. That may be thought to be a difficulty if I am to apply what Lady Paton identifies in Kendal v Carl Davies as the primary measure of this head of damages. It is perhaps not insuperable. Very properly, Mr MacSporran conceded that it was appropriate to make a not insubstantial award in respect of the past. He was also prepared to concede that awards should be made, albeit in relatively modest sums, in respect of the future. While I do not view 6/20 as a source of evidence upon which I can rely, it does set out a calculation of the value of services which was adopted by Mr Allardice in his submissions. I must have regard to that calculation as the alternative to the calculation advanced by Mr MacSporran. I have found it useful to compare Mr MacSporran's figures with the figures put forward by Mr Allardice under reference to 6/20 of process with a view to identifying the similarities and the dissimilarities in their respective approaches. The first thing I would notice is the broad similarity in hours per week (although Mr MacSporran allocates more hours to the initial period than does 6/20) and the total figures as between Mr MacSporran's calculation and paragraph 3.4 of 6/20 (the paragraph which relates to additional personal help given by family). Now, in 6/20 a further figure of £16,102.24 is put forward in respect of psychological support and the 6/20 figures are brought down only to 1 October 2003 but, nevertheless, I see what I have described as a similarity as a starting point. Both counsel have adopted net hourly rates, by which I mean rates which are arrived at by discounting the commercial rate to reflect the fact that a person who is employed to provide care does not receive the hourly rate that is charged for his services where that rate includes a profit element taken by an employing agency and provision for employers' national insurance contribution and holiday pay accrual. Moreover, the person employed to provide care will receive his or her remuneration net of tax and employee's national insurance contribution. Discounting the gross rate is an acknowledgement that it is what is actually received by the commercially employed carer that provides the measure of reasonable remuneration. It has the authority of, for example, Wallace v Paterson supra at 571F, citing O'Connor v Matthews 1996 SLT 408, and Fairhurst v St. Helens and Knowsley Health Authority, 1995 PIQR Q1. Reference can also be had to Evans v Pontypridd Roofing [2001] EWCA Civ 1657 and Lamey v Wirral Health Authority, Kemp & Kemp The Quantum of Damages A4-120, both cited in Facts & Figures supra at pages 232 and 233. Although both counsel adopted what I took to be discounted rates, neither counsel explained the arithmetical basis of the discount. The choice of a 20% discount is not explained in 6/20 of process. Mr McSporran did not explain why he favoured £5 per hour up until June 2002 and £5.50 thereafter. What is put forward in paragraph 3.4 of 6/20 are figures based on the commercial personal care at home rates, discounted by 20%. Very approximately, Mr MacSporran's figures reflect a 25% discount from the commercial home help and home companion rates for the relevant periods. I am conscious that by drawing attention to precise percentage discounts from the commercial rate, I may be seen to be suggesting that the assessment of damages under this head is capable of something like an exact calculation. In this case that is clearly not so, having regard to the nature of the evidence led. However, I do observe that in Wallace v Paterson supra, Lady Paton, following what had been done in other cases, adopted a 25% discount. In Wallace at 571 F Lady Paton uses the expression "the 25% reduction necessary to reflect the absence of tax and national insurance contributions". I do not understand her, however, to mean that the 25% has been arrived at by very precise arithmetic or that a discount of 25% (or indeed any discount) will always be appropriate. Each case, as she points out, depends on its own facts. Nevertheless, 25% is a commonly adopted discount and I am inclined to adopt it in the absence of argument to the contrary. On this I therefore prefer Mr MacSporran's calculation. I also prefer Mr MacSporran's implicit choice of the home help and companion rate as a starting point rather than the personal care at home rate adopted in 6/20. I accept that in the initial period following the pursuer's accident, the services rendered by Mrs Irwin were of the nature of personal care but, after about 6 months that would seem no longer to have been the case. The question remains as to whether Mr MacSporran's calculation allows for sufficient hours or, putting it differently, whether the more generous allocation of hours in 6/20, with a significant number of hours allocated to psychological support fits better with the evidence. I should say that I did not understand Mr MacSporran to be leaving psychological support out of account when putting forward his suggested calculation. For all the foregoing discussion of rates and discounts this head of damages does not, on the evidence available to me, admit of precise quantification. I see Mr MacSporran's calculation as better fitting the evidence than what was adopted by Mr Allardice but I am left with the impression that it, nevertheless, unduly under-rewards Mrs Irwin's devotion to her daughter's welfare over the three and half years or thereby since the accident. Doing the best that I can in the circumstances I shall award £20,000 in relation to the section 8 claim in so far as it related to the past. I shall award Mr MacSporran's proposed sum of £2500 in relation to the section 9 claim in so far as it related to the past. [63] In relation to the future, in respect of which there is no very satisfactory evidence, I shall award £10,000 in respect of the section 8 claim and £5000 in respect of the section 9 claim.Summary
2. Past medical treatment: £3947 for purchase of prosthesis, £1600 for associated travel cost.
3. Future medical treatment: £120,000
4. Loss of earnings to date: £22,965 with interest thereon at the rate of 4% from 5 June 2000 until the date of decree.
5. Future loss of earnings: £120,435
6. Additional travelling expenses: £1000 in respect of the past and £1000 in respect of the future.
7. Past services (sections 8 and 9 claims): £20,000 in respect of section 8 and £2500 in respect of section 9
8. Future services (sections 8 and 9 claims): £10,000 in respect of section 8 and £5000 in respect of section 9
Conclusion
[65] I shall uphold the pursuer's first plea-in-law. I shall uphold her second plea-in-law to the extent necessary to grant decree in the sum of damages, as assessed by me. As invited to, I propose to bring the case out by order before granting decree in order that I may be addressed on matters of arithmetic, the incidence of interest and the effect of the interim payment of damages.
