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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 33
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A2779/02
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OPINION OF
LORD DRUMMOND YOUNG
in the cause
CRAIG MIDDLETON
Pursuer;
against
C.P.S. 2000 LTD
Defenders:
________________
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Pursuer: McEachran, QC;
Digby Brown, SSC
Defenders: Gallagher; A & WM Urquhart
24
February 2006
[1] On 11 August 2000 the pursuer sustained an accident in the course of
his employment with the defenders. He
was working as a labourer on maintenance work at Big W Retail Park, in Edinburgh. The pursuer was instructed to clean out the
gutters in the building. To do that he
had to work on the roof, which was made of corrugated metal. Neither a harness nor crawling boards were
provided. As he was cleaning the gutters
the pursuer stepped on to a plastic window which gave way beneath him, and he
fell through it on to the floor underneath.
The precise distance that he fell is not known, but it was sufficient to
cause serious injuries. In the present
action the pursuer alleges that the accident was caused by the defenders'
breach of the duties contained in regulations 5, 6 and 7 of the
Construction (Health, Safety and Welfare) Regulations 1996 and regulations
4 and 6 of the Personal Protective Equipment at Work Regulations 1992. The defenders admit liability.
The pursuer's
physical injuries
[2] As a
result of the fall, the pursuer sustained a range of injuries. The primary physical injuries were as
follows. First, he suffered a comminuted
fracture of the olecranon process of the right elbow. Secondly, he suffered fractures of the base
of the 4th and 5th metacarpals of his right
hand. Thirdly, he suffered fractures of the
transverse processes of the 2nd, 3rd and 4th lumbar
vertebrae. The transverse processes are
the lugs found at the sides of the vertebrae.
Fourthly, he suffered a closed head injury.
[3] The
pursuer's orthopaedic injuries were spoken to by two surgeons, Mr S.K.
Mukherjee and Mr J.F. Keating. Both
were orthopaedic surgeons of great experience.
So far as prognosis was concerned, I preferred the evidence of Mr Keating. I formed the impression that he had
considered the case thoroughly, and he gave his evidence in a measured and
careful way. Mr Mukherjee, by
contrast, referred to matters in his evidence that were not touched upon in his
reports. This applied in particular to
the risk of arthritis affecting the pursuer's elbow and to damage to the spine
apart from that to the transverse processes.
In addition, Mr Mukherjee would not accept in cross-examination
that different surgeons might reach different measurements of movements in the
spine, a view that I thought surprising.
On the basis of Mr Keating's evidence, I conclude that the spinal
injury is likely to produce troublesome lumbar back pain for the foreseeable
future. That pain will make it difficult
for the pursuer to resume any occupation that involves a significant amount of
heavy manual work; it will, in particular, prevent him from finding work in the
building industry other than in an administrative or supervisory capacity.
[4] The
elbow fracture was treated by displacement and internal fixation, and the
fracture healed. Because of discomfort
arising from the internal fixation the pursuer required further surgery to remove
the fixation in January 2001. He
continued to experience pain and weakness in the elbow. Mr Keating found that there was a very
slight restriction of motion, and weakness in flexion and extension of the
elbow. His opinion was that residual
weakness and discomfort would persist, which might not fully recover. In addition, in the longer term
post-traumatic osteoarthritis of the elbow could develop. Nevertheless, following fractures of the
olecranon process it is uncommon for severe arthritis to develop. If it does develop, it normally does so
gradually over a very long period. The
elbow injury would also make it difficult for the pursuer to resume a job that
involved heavy manual labour, although he would be able to manage work of a
light manual nature or work of a sedentary nature. The fractures of the 4th and
5th metacarpals of the right hand were treated non-operatively,
and the fractures subsequently healed in a satisfactory position. Mr Keating thought that the pain in the
hand would eventually disappear and that the pursuer would have normal or near
normal function in the hand.
[5] In
addition, the pursuer suffered bladder and erectile problems as a result of the
injuries sustained to his back. It was
accepted by the defender that these problems were caused by the pursuer's back
injury. Evidence on these matters took
the form of the evidence on commission of Mr T.B. Hargreave and a report
from Mr Michael Fraser; that report was agreed by the parties to be the
equivalent of verbal evidence. Both were
consultant urological surgeons. Mr Hargreave
had conducted urodynamic tests on the pursuer.
These indicated that there was a failure of the bladder muscle to
generate any pressure; the result was that the pursuer emptied his bladder by
abdominal push. That had the effect that
he required to sit down to urinate as the abdominal push tended to cause
emptying of the bowel with each urination. Mr Hargreave considered that a major
disability, although the extent to which a person was able to cope with it
depended on their motivation. Mr Hargreave's
impression of the pursuer was that he appeared quite motivated to complete his
college course, and attain a qualification and get a job; he was able to work
around his problem at lectures. The
pursuer's problems could, however, become worse in later life if prostate
problems emerged. Mr Hargrave
thought that after the age of 50 he might well require either prostate
surgery at an earlier age than usual or self-catheterization. In addition, there was an unquantifiable risk
that the pursuer might require a urinary bypass operation at the age of
approximately 60; that might occur if he suffered repeated urinary
infections or back pressure on his kidneys. Until approximately the age of 50, the
pursuer's condition was likely to be stable.
He did, however, require two visit the lavatory
approximately every hour. Mr Fraser's
evidence was broadly similar. He thought
that the pursuer was at minimal risk of kidney function impairment, because his
bladder was of low pressure, but he had a higher theoretical risk of urinary
tract infections or formation of bladder stones if his bladder emptying were
impaired.
The pursuer's
account of his injuries and their effect
[6] The
pursuer gave evidence that he had been rendered unconscious by the accident but
recovered consciousness shortly thereafter.
He was taken by ambulance to Edinburgh Royal Infirmary, where his
injuries were treated. His right arm was
placed in a plastic cast, but he suffered pain from his back and elbow. The day after the accident an operation was
carried out on his elbow. Altogether he
was in hospital for five to seven days.
He suffered pain during that period, but received painkillers to deal
with it. Approximately five months after
his discharge from hospital he underwent a further operation on his arm to
remove one of the pins that had been used to fix the bones.
[7] The
pursuer stated that he suffers continual back pain; this occurs early in the
morning if he has taken physical exercise, and can occur when he is walking or
standing. It also occurs in the evenings
when he has been sitting a long time.
Because of the injury to his elbow he would find any job involving heavy
manual work difficult. He accepted,
however, that he could lift moderate and light weights. He described the practical effect of his
bladder problems; the result is that he has to visit the lavatory approximately
24 times per day, and has to plan journeys in such a way as to enable him
to do that. He accepted, however, that
during the night he would only have to visit the lavatory between one and three
times. His bladder problems also caused
embarrassment in his social life. He
tends now not to visit public houses because of the number of times that he
requires to urinate in the course of an evening. He has also experienced problems with his
bowels since the accident. The pursuer
also described the problems arising from his erectile dysfunction; this problem
is treated with medication, but it causes significant practical difficulties.
[8] Before
the accident the pursuer had been keen on sport, especially running and
swimming. He had been a competitive
swimmer, and could manage 1 mile per day.
He was not able to do that any longer because of pressure from his
elbow. He had visited the gym regularly
before the accident, but did not do so now because the running machine hurt his
back. He had also been keen on water
sports, including water ski-ing. He was
unable to follow these pursuits now because of the accident. His weight had increased by approximately
three stone since the accident, although he tried to exercise by walking.
[9] The
pursuer stated that he became depressed as a result of his condition, and in
particular the pain that he suffered in his back and elbow. He had hoped to pursue a career in the
building industry, performing physical work, but he was now unable to do that
because of his injuries. He also found
that the sexual and bladder problems were causing difficulties. He tried to adjust to his situation, but
found it hard to do so. He received
medication to deal with the pain. This
consisted of a range of painkillers, namely tranadol, dihydrocodeine,
co-codamol and ibuprofen. He took the
latter two drugs daily and the others if he had episodes of pain. He also received medication for his
bladder. He had stopped taking
anti-depressants because he found that they made matters worse. The pursuer also stated that his condition
since the accident had tended to make him irritable, whereas previously he had
been good tempered.
[10] The
pursuer's evidence on the above matters was in large part supported by the
evidence of his mother, Jane Orr, and his girlfriend, Geraldine Irvine. I accept that evidence as a substantially
accurate account of the effect that the pursuer's injuries had had on him.
Psychiatric
injury
[11] Evidence
on the psychological effect of the accident on the pursuer was led from Dr Jonathan
Cavanagh, a senior lecturer in psychiatry at Glasgow University and an honorary consultant
psychiatrist. Dr Cavanagh stated
that the pursuer had described a number of problems with his intellectual and
emotional functions. These included
anhedonia (loss of pleasure), a loss of self-confidence and self esteem, which
affected the pursuer's social and family life, insomnia, irritability and loss
of libido. (The last of these, however,
contradicted the pursuer's own evidence in court). Dr Cavanagh expressed the opinion that
the pursuer was suffering from an adjustment disorder; this took the form of a
depressive adjustment reaction. It meant
that he was having difficulty in adjusting to an adverse
events in his daily life. Dr Cavanagh
expressed the view that this disorder was likely to continue for some time and
that the prognosis was not good, although he accepted that the research in this
area had been limited. Dr Cavanagh
also referred to the pain that the pursuer was suffering. Altogether, his assessment was that the
pursuer was significantly disabled by the adjustment disorder and the pain
resulting from the accident. That would
have a negative effect on the pursuer's ability to motivate himself
and, when combined with low self esteem and hopelessness, would lead him into
something of a downward spiral. In cross-examination,
however, Dr Cavanagh accepted that adjustment disorder usually comes to an
end within six months or so.
[12] On the basis
of the evidence of both Dr Cavanagh and the pursuer, I consider that the
pursuer is suffering from substantial depression as a result of his
accident. The reasons for that were
quite evident from the pursuer's own evidence.
I accept Dr Cavanagh's evidence that the pursuer's problems took
the form of an adjustment disorder. At
the same time, however, I think that the problems are bound to get
significantly less as time passes. Dr Cavanagh
suggested that the pursuer might enter a downward spiral, and find it difficult
to motivate himself.
That did not accord with my impression of the pursuer, who appeared to
be making very fair efforts to pursue his course at Glasgow College of Building
and Printing.
Educational
and employment history
[13] The
pursuer was born on 20 August 1977, and was accordingly
22 years old at the date of the accident.
He had left school at the age of 16. He wanted to take up joinery work, his father
having been a joiner, but his parents thought that the leisure industry would
be a better option; the pursuer had been a competitive swimmer, and his mother
and grandfather had been involved in managing swimming pools and water
sports. After leaving school the pursuer
obtained a National Certificate qualification in leisure and recreation
management at North Glasgow College. He also worked part time as a swimming pool
attendant. He had then become a
full-time lifeguard and swimming instructor at the Marriott Hotel in Glasgow, and worked there for about
two and a half years. After that he
decided that he wanted to enter the building trade, and he took a course in
boatbuilding at James Watt College in Greenock; the pursuer stated that he
preferred to be "hands on" with tools. He stopped the course early, however, because
he was having difficulty in obtaining the necessary finance. After that, in 1998, he had started a
business with a friend laying laminated flooring. That business lasted for about a year, at
which point the pursuer had a disagreement with his partner and they decided to
cease business. Thereafter he was unemployed
for about six months, undertaking occasional casual work. He appears on occasion to have claimed
benefit while working. Subsequently he
worked in a bakery in Kirkintilloch for about 18 months; he stated that
that was not a career choice but was to earn money. He also continued to
perform a certain amount of casual work, fitting doors for friends and members
of his family. From about March 2000
he worked at Bishopbriggs Sports Centre, mostly part time, as a pool attendant
and lifeguard. His employer there was East Dunbartonshire Council. At about the start of July 2000, some
five weeks before the accident, the pursuer had obtained work with the
defenders as a result of social contacts.
The pursuer stated that the defenders were involved in building work and
he was interested in learning about that with a view to going into the building
industry. At the same time he continued
to perform part time work at Bishopbriggs Sports Centre.
[14] After
his accident the pursuer was unable to continue his work with the
defenders. Nevertheless, in
October 2000 he resumed work at Bishopbriggs Sports Centre as a part time
temporary leisure attendant. Initially
he worked on what were known as "dry side" shifts, which involved
tasks unconnected with the pool, such as setting up badminton courts. Subsequently he tried to work at the pool,
but he found that his back sometimes clicked out of place. If he was working as a lifeguard and that
happened to his back he would be in serious difficulties; as he put it, two
people would have to be rescued. In
addition, the work in the pool involved a lot of scrubbing at night, and that
made his back very sore. It appeared
that his fitness for the job was questioned because of his back problems. He left Bishopbriggs Sports Centre in
September 2002, in order to work for Arnold Clark. When he resigned from his employment with the
Council, his termination form stated that the reason was "New
job". Despite that statement, I am
satisfied on the basis of the pursuer's evidence that, as a matter of probability,
he left his employment with East Dunbartonshire Council because of the problems
with his back that resulted from the accident.
This point is of some importance, because it was suggested by counsel
for the defenders in submission that his decision to leave the Council's
employment was entirely voluntary, and could not be ascribed to the
consequences of the accident. As I have
indicated, I do not think that such a conclusion is supported by the
evidence. In any event, the pursuer
indicated that he took a drop in wages to work for Arnold Clark.
[15] Initially
he was to drive a delivery van for Arnold Clark, but after he started he
was asked to work in the warehouse. He
found difficulty in working in the warehouse, however, because he could not
lift the components that were stored there.
Consequently he left Arnold Clark on 2 December
2000,
although he was paid wages to the end of the year. Thereafter he was unemployed until
February 2001, when he obtained work (on an agency basis) in a call centre
run by Norwich Union Insurance. He
worked there for about six weeks. The
pursuer stated that when working for Norwich Union he was criticized for going
to the lavatory too often, although he had explained his problem before he
started the job. He also had a dispute
with his supervisor as to where his car was parked, and he was asked to leave
the premises. Consequently that job came
to an end in about March or April 2003.
The defenders led evidence from Miss Dawn McCallum, an employee of
Reed Employment, the agency that had actually employed the pursuer. She spoke to inquiries that Reed had made in
relation to the termination of the pursuer's employment. These had disclosed that the pursuer had had
an argument with his supervisor about parking his car, but that he had also
been told by Norwich Union that his attitude was not good and that he needed to
pick up his sales.
[16] Thereafter
the pursuer decided to try to obtain an academic qualification to enable him to
work in the field of construction management.
In August 2003 he began a National Certificate course in
Architecture, Building and Quantity Surveying at Glasgow College of Building
and Printing. He completed that, and
in 2004 he began a two-year Higher National Diploma course in the Built
Environment, with specialisms in Architecture, Quantity Surveying and Building
Management. At the time of the proof the
pursuer was in the first year of that course.
He stated that he was having some difficulty with the course. He was
dyslexic, and required special back up to compensate for that. He also found that his lack of training in
mathematics and physics was causing problems with certain parts of the
course. He thought, however, that the
second year would be easier than the first.
If he completed the course he would try to obtain work in the field of
construction management. In a letter
from the College it was indicated that the pursuer missed the equivalent of
approximately one day per week. His year
tutor had been concerned about his attendance, but the pursuer had always cited
his industrial injuries as being the cause.
The course is continuously assessed, and so far he had passed most of
the units that he had studied, although he had not achieved a merit pass in
any.
Future
employment prospects
[17] Evidence
was led from two employment consultants, Mr Peter Davies for the pursuer
and Mr Andrew Dewar for the defenders.
Mr Davies was of opinion that the pursuer found himself in a
difficult and frustrating position because of his injuries. He was disabled, with the attendant
disadvantages of disability. He lacked
flexibility in the labour market.
Consequently he was less likely to be economically active and more
likely to be unemployed than if he were fully fit. Mr Davies thought it probable that the
pursuer would find employment but would drop out of the labour market
approximately 10 years earlier than he would if fully fit. That opinion was backed by a survey based on
unemployment rates according to age (No 6/3 of process, table 1). It
would also be more difficult for the pursuer to find work than if he were fully
fit. Consequently, if he found himself
unemployed, he would remain in that situation for longer than a fully fit
man. In addition, the pursuer appeared
to be dyslexic, although he might obtain specialist treatment for that condition. Tests indicated that he was stronger in
non-verbal areas than in areas that involved verbal and numerical
reasoning. His educational aptitude was
at the tenth percentile, although his non-verbal score indicated that he
functioned at the 60th percentile. That indicated that he was more likely to be
suited to practical activities than to those with a high level of theoretical
content. This presented the pursuer with
a dilemma; his physical disabilities prevented him from obtaining the sort of
employment to which he was best suited, while his dyslexia prevented him from
taking on clerical or administrative tasks at more than a fairly basic
level. Mr Davies also considered
that the adjustment disorder that had been diagnosed by Dr Cavanagh was
likely to present significant difficulties.
[18] Mr Davies
thought that, but for his accident, the pursuer would have found employment in
the construction industry. He had not
undertaken training in a trade, with the result that he was likely to be
employed as a labourer or as a mate to a tradesman. Mr Davies accordingly considered that
his earnings but for the accident should be based on the average earnings of
labourers in the construction industry or mates to tradesmen in the
construction industry. With his
disabilities, however, matters were much less certain. It was not clear whether he would be able to
complete the course that he had undertaken at the Glasgow College of Building and
Printing. Even if he completed the
course, his prospects of employment were not certain. He did not want to work full-time in an
office, but his physical difficulties would make anything else difficult. Overall, Mr Davies thought that the
pursuer would find employment, but only on a part-time basis, which would be
the most sustainable form of work for him.
Otherwise he might move from one short-term job to another, until his
employment record became such that he would have difficulty in finding another
job. On that basis, Mr Davies put
forward a range of figures for the pursuer's future earnings; these were based
on the average earnings of those engaged in administrative work and as leisure
assistants with local authorities.
[19] Mr Dewar
stated that the pursuer had told him that the owner of the defenders "was
going to teach him all the building trades", in which case he would have
earned between £10 and £15 per hour, or £20,000-£30,000 per
annum. Mr Dewar was not convinced
by this; the pursuer's wages at the time of the accident had been fairly
low. Moreover, Mr Dewar thought
that it was unlikely that the pursuer could have become a tradesman; he was
more likely to have found himself in a semi-skilled position, involved in
something like roofing, flooring or plastering; alternatively he might have
found work assisting a tradesman. In a
semi-skilled position, Mr Dewar thought that the pursuer might have earned
approximately £15,000 per annum; £20,000 was at the very top end of
likely earnings in such a position. Mr Dewar
further pointed out that at the time of the accident the pursuer appeared to
have been working very long hours, both for the defenders and at the leisure
centre. He doubted whether the pursuer
would have been able to sustain working what was effectively a 90 hour
week. Mr Dewar provided
calculations of the pursuer's likely future earnings if he had not had the
accident on the basis that he would have found work as a labourer or
semi-skilled workman in the construction industry. That was merely an assumption based on what
the pursuer told him, however, and I am not convinced that the pursuer would
necessarily have obtained such work; I discuss this point at paragraph [21]
below.
[20] Mr Dewar
also commented on the qualification that the pursuer was likely to obtain if he
completed his HND course at Glasgow College of Building and Printing. He pointed out that approximately half of the
students leave after the first year, but some obtain an HNC. In the pursuer's case the HND qualification
was likely to lead to a job in construction management, in which case he was
likely to obtain an average salary of approximately £20,000 per
annum. Higher salaries could be
obtained, but generally by individuals who had served an apprenticeship or had
worked extensively in the building industry; the pursuer was not in that
position. Because the pursuer did not
have other qualifications in engineering or building, it was unlikely that he
would be employed by a company carrying out large projects; it was more likely
that he would find employment with a small or medium-sized building company in
central Scotland. Mr Dewar based his estimates of future
employment on that premise. Mr Davies
doubted if this premise was likely to be fulfilled, principally because he
thought it highly doubtful whether the pursuer would complete his HND course.
[21] On the
basis of the evidence of Mr Davies and Dr Cavanagh, I conclude that
the pursuer is experiencing considerable difficulty in adjusting to his present
physical state, and to the limitations that that places on his ability to find
work. I also conclude, on the basis of
the evidence of the pursuer, Mr Davies and Mr Dewar, that the
pursuer's dyslexia is a significant problem in finding further employment. Physically, he is incapable of heavy manual
work, but the dyslexia makes it difficult for him to perform non-manual or
administrative work at more than a fairly basic level. If the accident had not occurred, I conclude
that the pursuer would have tried to find work of an unskilled or semi-skilled
nature in the building industry. I am
not convinced, however, that he would necessarily have obtained such work, at
least on a permanent basis; his record was of moving from job to job, and he
frequently worked on a casual basis. The
pursuer would not have been in a position to learn a skilled trade. Moreover, the defenders were engaged in
maintenance rather than building work, and I do not
think that his employment prospects in the building industry would have been
greatly assisted by working for them. In
addition, his job with the defenders was essentially temporary in nature, and
was unskilled. That was apparent from
the evidence of Mr Grant Burns, who had been the manager of the defenders
at the time of the pursuer's accident.
His evidence, which I accept, was that the pursuer would have been kept
on for between one month and six weeks after the job on which
the pursuer was employed came to an end.
He had not had any discussions with the pursuer regarding training, or
to indicate that he would become a full-time member of staff. Nevertheless, the construction industry was
clearly the pursuer's first choice, and I consider that the earnings of men
involved in labouring jobs in that industry would give a reasonable indication
of the pursuer's likely future earnings.
[22] I find
it much more difficult to predict the pursuer's future prospects of employment,
for a number of reasons. First, the
pursuer's record of employment, both before and after the accident, is highly
erratic, with substantial part-time and casual work. In addition, there was a relatively little
evidence of his past earnings. Secondly,
it is not clear whether the pursuer will complete his course at Glasgow College
of Building and Printing, and if so whether he will emerge with an HND or
merely an HNC. He is undoubtedly having
difficulties with the course, partly on account of his dyslexia, partly on
account of deficiencies in his mathematical skills and his knowledge of
mathematics and physics, and partly because of the effect of his physical
injuries. Mr Davies thought that he
would not complete the course, emerging with at most an HNC. The pursuer, on the other hand, thought that
the second year might be easier on account of its greater emphasis on practical
work. I find this matter especially
difficult to predict largely because I lacked detailed information about the
pursuer's progress on the course. I
think, however, that I must give some weight to the possibility that the
pursuer will complete the course successfully.
Thirdly, if the pursuer obtains a qualification, it is difficult to know
what his prospects of a career in the construction industry are. The evidence on this matter was far from
conclusive; Mr Davies thought that he might obtain work in a small or
medium-sized contractor, but pointed out that the smaller firms are usually
managed by their owners. On balance, I
think that, if the pursuer completes the course, he should be able to find work
in construction management. That is so
notwithstanding his disability, which I think is managed sufficiently well to
enable him to keep a job. Fourthly, if
the pursuer fails to find work in construction management, there are
uncertainties as to what alternative forms of employment might be available. Mr Dewar thought that he would be able
to find employment in an office or in the security industry. I agree with that assessment. Fifthly, because of the pursuer's
disabilities, it is not clear whether he will be able to maintain full-time
employment throughout his working life. Mr Davies
thought that he might only take on part-time work, but this was contradicted by
the fact that the pursuer had taken on full-time work following his
accident. I accept that there is a risk
that the pursuer might ultimately feel constrained to work part time, but I
think that that is a risk that is only likely to materialize in the relatively
distant future. That was no evidence that, in his present condition, the
pursuer is not capable of putting in a full week's work. Mr Dewar felt that on balance the
pursuer should be able to maintain full-time employment, and I accept his
evidence on this matter. Consequently I
reject Mr Davies' suggestion that the pursuer will probably only obtain
part-time employment, and I think that the risk of part-time employment in the
future can be taken into account by making certain assumptions in calculating
compensation for loss of employability.
Sixthly, it is not clear whether the pursuer is likely to have
substantial periods out of work, to a greater extent than would be expected of
a man who did not have his disabilities.
Mr Davies cited figures from the ILO that suggested that those with
disabilities suffer longer periods out of work.
Mr Dewar accepted the conclusion drawn from those figures to some extent, although he pointed out that the disabled tend to
have fewer qualifications, and less good qualifications, than the population
generally. The lack of a qualification
is a major factor in predicting unemployment. In addition, it is obvious that
the category "disabled" covers a wide range of disabilities;
obviously those with more severe disabilities will have greater difficulty in
obtaining and keeping work. The
pursuer's disability is clearly not in the most serious category. I accordingly conclude that the effect of his
disability on his prospects of obtaining work will be significant but not as
great as is indicated by the ILO figures mentioned by Mr Davies. It is nevertheless very difficult to predict
what that effect is likely to be.
Seventhly, I conclude that the pursuer is likely to retire early on
account of his disabilities. I base this
conclusion on the evidence of Mr Davies, who relied on the ILO figures;
these suggested that fewer than half of the disabled are in employment after
the age of 55 and less than 30% after the age of 60. Nevertheless, those figures are subject to
the same qualifications as the figures relating to periods of
unemployment. Overall, I think it likely
that the pursuer will retire slightly earlier than he would otherwise have
done, by a margin of five years or thereby.
[23] Because
of the foregoing uncertainties, I am of opinion that it is not appropriate to
calculate future loss of earnings, but rather to assess damages on the basis of
future loss of employability. I will now
consider the various heads of loss claimed by the pursuer.
Solatium
[24] Counsel
for the pursuer referred to a number of cases involving jury awards. I accept that jury awards may be looked at in
assessing solatium: Shaher v British Aerospace Flying College Ltd, 2003
SLT 791. The first award cited was Leeder v Advocate General, 2004 Rep LR 99, a case involving severe back
injuries where £250,000 was awarded.
I thought that the injuries in that case were very much more serious
than those suffered by the pursuer. The
same was true, although to a lesser extent, of Tate v Fischer, 1997 Rep
LR (Quantum) 17 and Gartley v R. McCartney (Painters) Ltd.,
1997 Rep LR (Quantum) 18, cases in which awards were made of, at
updated values, £87,000 and £81,200.
On the other hand, the present pursuer was significantly younger than
the pursuers in those cases. Counsel
also cited Towers v Jack, 2004 GWD 21-459, where £70,000
was awarded. He then referred to the
Guidelines for the assessment of damages issued by the Judicial Studies Board
in England and Wales. He submitted that three heads were
relevant. The first was that dealing
with back injuries that can be considered severe but not in the most severe
category. The level of award suggested
is in the region of £45,000. Counsel submitted that more should be awarded
on account of the pursuer's age at the date of the accident; he suggested an
award of up to £60,000. The second
head was that dealing with elbow injuries that involve impairment of function
but do not involve major surgery or significant disability. The suggested level of award is between £8,750
and £17,500; counsel suggested that £15,000 was appropriate because
of the pursuer's age and the permanent nature of his condition. The third head was that involving moderate to
moderately severe psychiatric damage.
The range of awards suggested for such injuries was from £3,250 to £30,000;
counsel suggested that the starting point should be £10,500, which was the
dividing line between moderate and moderately severe injuries, but that that
figure should be increased to £15,000 on account of the pursuer's
age. Finally, counsel submitted that the
three figures put forward by him, £60,000, £15,000 and £15,000,
should simply be added together to give a total of £90,000.
[25] Counsel
for the defender referred me to certain further cases, notably Wallace v Paterson, 2002 SLT 563, where a
pursuer who suffered serious multiple injuries that had profound effects on her
life was awarded £95,000. He
submitted, however, that the best guide was the Judicial Studies Board
guidelines. In this connection, it was
not appropriate to add together the various components of the pursuer's
injuries; instead, the court was required to reach a global figure for the
totality of the injuries: McCrum v Ballantyne, 1992 SLT 620. The most significant injuries were those to
the pursuer's back, and the head dealing with back injuries that were severe
but not in the most severe category should be used. Counsel suggested a figure of £40,000,
reduced slightly from the Judicial Studies Board figure of £45,000 because
the pursuer had not suffered significant scarring. It is true that scarring is referred to in
the relevant guideline, but merely as an example of one of the features that
may characterize this particular head.
For this reason I do not think that the absence of scarring merits any
reduction from the suggested figure of £45,000.
[26] I agree
with counsel for the defender that it is appropriate to assess a global figure
for the whole of the pursuer's injuries, and not to add different heads
together in the manner suggested by counsel for the pursuer. I further agree that the Judicial Studies
Board Guidelines are a helpful guide. In
my opinion the appropriate starting point is the figure of £45,000 that is
indicated there for back injuries that are severe but not in the most severe
category (excluding cases involving paralysis). The Guidelines indicate that
the features of such cases are typically impaired bladder and bowel function,
severe sexual difficulties and the possibility of future surgery. All of these exist to some extent in the
present case. I consider, however, that
some allowance must also be made for the injury to the pursuer's elbow and the
psychiatric difficulties that he is experiencing. In relation to the psychiatric difficulties,
however, all that is involved is an adjustment disorder, and in the normal case
an adjustment disorder is not usually a permanent condition. When these factors are taken into account, I
am of opinion that an award of £60,000 is appropriate. In view of the pursuer's age, I attribute
half of that to the past and half to the future. Interest will run at 4% on half of that sum
from the date of the accident to the date of decree.
Services and
prescription charges
[27] These
elements were agreed at £7,500 including interest. Interest will run on half of that amount at
4% from the date of the accident to the date of decree.
Past loss of
earnings
[28] It was
a matter of agreement that at the date of the accident the pursuer was earning £207
net per week; that sum includes his earnings from both the defenders and East
Dunbartonshire Council. On the basis of Mr Burns'
evidence, I consider that the pursuer would have remained employed by the
defenders for 10 weeks after the date of the accident. Thus he lost earnings of £2,070 during
the 10 weeks following the accident.
[29] Counsel
for the defender submitted that the pursuer's decision to leave employment with
East Dunbartonshire Council was voluntary, and therefore unrelated to the
accident. On that basis, he submitted that the pursuer should not be entitled
to recover for loss of earnings after October 2000, but should rather
receive damages for past loss of employability.
For the reasons stated above at paragraph [14] I am of opinion that
the decision to leave employment with East Dunbartonshire Council was, on the
balance of probabilities, caused by the pursuer's injuries and hence a
consequence of the accident. On that
basis I am of opinion that the pursuer continues to be entitled to recover loss
of earnings down to the date of the proof.
[30] The
alternative position taken by counsel for the defender was that the pursuer's
loss of earnings for the period from October 2002 the date of the proof
should be calculated on the basis of a probable income of £10,800 per
annum. That figure was based on figures
quoted in Mr Dewar's reports.
Counsel for the defender submitted that loss of earnings during the
period prior to the proof should be calculated on the basis of the pursuer's
actual earnings at the date of the accident, which amounted to £10,764 per
annum. There is thus very little between
the positions taken by the parties, although it seems to me that the
theoretical approach taken by counsel for the defenders is to be preferred,
since the pursuer's employment with the defenders was clearly temporary. On the basis of the figure of £10,800
per annum advanced by the defenders, the loss of earnings down to the
conclusion of the proof is £49,887.12.
The parties are agreed that the pursuer earned £20,591 during the
period between the accident and the start of the proof; that included the
period of two years, from October 2000 to September 2002, when he was
earning £8,700 net from East Dunbartonshire Council. It follows that the pursuer's loss under this
head is £29,387.12 (the figure put forward by counsel for the defender; it
is if anything generous to the pursuer). Interest will run on that sum at 4% to
the date on which the proof concluded and 8% thereafter (this being a head
of damages that relates solely to the period prior to the proof).
Future loss of
employability
[31] For the
reasons stated in paragraph [22] above, I am of opinion that it is
impossible to predict with confidence what the pursuer is likely to do in
future. I think it very likely that he
will obtain employment, although he may have periods of unemployment or
part-time working and will probably retire slightly earlier than he would
otherwise have done. If he completes his
course at Glasgow College of Building and Printing I am of opinion that he will
probably obtain work in the field of construction management. If he does not complete the course, I think
it likely that he will manage to obtain employment, possibly in the fields of
administration or security. I formed the
impression that he is, despite his somewhat erratic employment record, quite
strongly motivated to find work, and his demeanour is such that I do not think
that he will have great difficulty in finding an employer. If the pursuer completes the course, his
earnings will be significantly greater than he would have obtained in an
unskilled or semi-skilled position in the construction industry. If he does not complete the course, his
earnings are likely to be somewhat lower than in the construction
industry. Against this, however, must be
set the serious doubt as to whether he would in fact have obtained employment
in the construction industry. In view of
the large number of uncertainties, I am of opinion that it is not appropriate
to award damages for future loss of earnings.
Instead, the pursuer should receive damages for future loss of
employability. This should cover the
uncertainties that will arise in his future career as a result of the accident,
including the likelihood of early retirement and the risks of periods of
unemployment or part time working. In
particular, it should cover the risk that, if the pursuer loses a job, because
of his disabilities he will find that it takes him longer than a fit man would
to obtain another job. It should also
compensate for the possibility that his future earnings will be somewhat lower
than would otherwise have been the case.
[32] In view
of the uncertainties that surround this part of the case, I do not think that
it is possible to achieve anything approaching precision in calculating the
future financial effects of the accident on the pursuer. I think, however, that the following method
is probably appropriate. In following
it, I have adopted the figures suggested by Mr Dewar in his reports. These were in large part based on earnings in
East
Dunbartonshire, the area where the pursuer lived. Those figures were lower than the figures for
the whole of Scotland. Counsel for the pursuer submitted that it was
more appropriate to use a general Scottish figure, as the pursuer might find
work anywhere in the country. Moreover,
the East
Dunbartonshire figures were based on a small sample; this reflected the
fact that it was a local authority area with a relatively small
population. In my opinion it is
appropriate to use the East Dunbartonshire figures as a starting point, because
that is the area where the pursuer lived and in which he was most likely to
find an employer; that is so even if work for that employer takes him into
other parts of Scotland. Moreover,
Scottish figures were somewhat inflated by above average figures in Edinburgh, Aberdeen and to some extent Glasgow. In any event, I do not think that ultimately
the choice between the East Dunbartonshire and Scottish figures matters
very much because of the inherent uncertainties of the calculation that I have
carried out and the substantial increase that I have allowed to take account of
the possibility of unemployment or part-time working.
[33] As a
starting point, I have assumed that the pursuer does not complete his course at
Glasgow College of Building and Printing and will find work in the alternative
areas suggested by Mr Dewar, administration or security. On that assumption, I have calculated his
loss of earnings during the remainder of his likely working life. For this purpose, I have assumed that but for
the accident the pursuer would have found work in an unskilled or semi-skilled
position in the construction industry.
That is far from certain, but I think that the construction industry can
be used as a guide to the sort of earnings that the pursuer might have expected
in manual employment. I have also
assumed that the pursuer is likely to retire early, at the age of 55. I have therefore carried out the calculation
in two parts. The first is to age 55,
and assumes a reduction in earnings during that period. The second deals with the period from 55
to 65, and assumes that the pursuer will not work at all during that
period. Consequently the loss of
earnings during that period is assumed at 100%. In relation to both of those periods, I have
used the appropriate section of the Ogden Tables, but I have adjusted the
multiplier to allow for contingencies other than mortality. The foregoing method takes account of the
likelihood of early retirement, on a basis that is reasonably generous to the
pursuer in that it assumes that he retires at 55; in reality, I think that
the pursuer is likely to work beyond that age, possibly even to 60. It is also favourable to the pursuer in that
it assumes that he does not complete the course at Glasgow College of Building
and Printing; if he does so he is not likely to suffer any significant loss of
income, apart from periods of unemployment.
The other major factors that must be taken into account, however, are
the greater risk of unemployment, or prolonged periods of unemployment, that
the pursuer will face during the remainder of his career and the risk that in
future he will be compelled to work part time.
After taking all of these factors into account I have increased the
figure that results from the initial calculation in the manner indicated in
paragraph [37] below.
[34] The
detailed calculation is as follows. Mr Dewar
provided likely levels of earnings for 2004 in two areas, unskilled and
semi-skilled occupations in the construction industry and general
administrative and static security work.
Those levels of earnings were based on the New Earnings Survey for 2003,
uprated by 3.5%; I consider that method to be reasonable. On this basis, the average annual earnings
for 2004 for those employed in unskilled or semi-skilled occupations in
the construction industry amounted to £11,914.50. The corresponding earnings for those engaged
in administrative and security work amounted to an initial average of £9,707
rising over five years to £11,255 50.
(All of those amounts are based on the figures quoted at page 10 of
Mr Dewar's report number 7/1 of process). If it is assumed that the pursuer's income in
an administrative or security-based occupation rose in equal instalments over
the first five years, his total loss during that period would amount to £6,508. Earnings could obviously be expected to
increase during that period, and I think that the resulting figure should be
increased by 7.5% to reflect this.
That brings out a total a few pounds short of £7,000. During the last of those five years the
annual loss is £659. That can be
assumed to be the loss that continues into the future.
[35] The
next stage in the calculation is to apply an appropriate multiplier in respect
of the period to age 55. I have derived
the multiplier from table 5 of the fifth edition of the Ogden Tables, the
table that deals with loss of earnings to age 55. At the date of the proof the pursuer
was 28. The appropriate multiplier,
based on a 2.5% discount, is 19.4.
The loss during the first five years of the period following the proof has
already been calculated, however, in the manner described in the last
paragraph. That means that it should be
assumed for this part of the calculation that the pursuer is 33, in which
case the multiplier should be 16.71.
Nevertheless, this must be discounted to allow for contingencies other
than mortality. On that basis, I think
that the multiplier should be reduced to 13.5. The loss is accordingly £700 multiplied
by 13.5, or £9,450.
[36] Thereafter
it is necessary to perform a similar exercise for the period from age 55
to age 65. The appropriate table in
the fifth edition of the Ogden Tables is table 9, dealing with loss of earnings
to age 65. The starting point is
age 55, and the relevant multiplier is 8.55. This must be adjusted for contingencies other
than mortality, and I think that a figure of six is the appropriate reduced
figure. Payment of this part of the award
will be made approximately 30 years early.
It is accordingly necessary to use table 27, which contains
discounting factors for a term certain.
On that basis, if it is assumed that payment is made 30 years early,
the appropriate reduction is 0.4767.
That reduces the basic figure of 2.86, which might be rounded up
to 3. On that basis, this element
in the calculation is £11,914.50 (the first figure mentioned in paragraph [34])
multiplied by 3, which amounts to £35,743.50.
[37] The
figures that result from the calculations described in three foregoing
paragraphs are £7,000, £9,450 and £35,743.50, which amounts in total to £52,193.50. This
can only be a starting point, however, because two other factors must be taken
into account. The first is the greater
risk that the pursuer runs of unemployment or part-time working. The second is
the possibility that the pursuer will complete his course at Glasgow College of
Building and Painting and obtain a supervisory position in the construction
industry. When these factors are taken
into account, I consider that the sum awarded under this head should be
increased by about half. This brings out
a final figure, after slight rounding up, of £80,000.
Interest
[38] Interest
will fall to be added to the above figures in the manner indicated in the
following summary. Interim payments of
damages have been made on two occasions. £10,000 was paid on 10 April 2003 and a further £30,000 on 8 April 2005. These sums
must obviously be deducted from the total damages, and an appropriate
adjustment must be made for interest. In making the interest adjustment, I have
assumed that the payment of £10,000 is attributable to solatium and that
the payment of £30,000 is attributable as to half to solatium and as to
half to past loss of earnings; that appears to me to be a reasonable view of
the basis on which it is made.
|
Solatium
|
£60,000
|
|
Interest
on half at 4% to decree
|
£6,651
|
|
Services and prescription charges
|
£7,500
|
|
Interest
on half at 4% to decree
|
£831
|
|
Past loss of earnings
|
£29,387.12
|
|
Interest
at 4% to conclusion of proof and 8% to decree
|
£7,600.39
|
|
Future loss of employability
|
£80,000
|
|
Total
|
£201,969.51
|
|
Less
interim payments
|
£40,000
|
|
Less
interest attributable to interim payments
|
£2814
|
|
Total after deductions
|
£149,155.51
|
I will pronounce decree for the foregoing sum, with
interest at 8% thereafter.
