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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 158
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PD1126/06
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OPINION OF LORD EASSIE
in the cause
GRAHAM HENDERSON
Pursuer;
against
DAVID ALEXANDER
SUTHERLAND
Defender:
________________
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Pursuer:
Smith QC, M Stuart; Gildeas, SSC
Defender: Murphy QC; HBM Sayers
18 September
2007
[1] In
this action the pursuer seeks reparation in respect of injuries which he
suffered in a road accident which occurred on 28 June 2003. On
that date he and a number of other motor cyclists were on a motorcycle
excursion in Sutherland. The pursuer's
wife was riding on the pursuer's motorcycle as a pillion passenger. As they were proceeding along the A836 road
near Invershin a van driven by the defender turned to its right into the path
of the pursuer's motorcycle in order to enter a private entrance on the
pursuer's left hand side. The pursuer's
motorcycle collided with the defender's van and as a result of the collision
the pursuer, and his wife, were thrown from his machine. Liability is admitted and no issue of any
contributory fault is raised.
[2] There
is not much by way of controversy between the parties as to the nature and
extent of the injuries which the pursuer suffered. The principal areas of dispute in this litigation
concern the pursuer's claim for patrimonial loss and, particularly, whether the
employment which the pursuer held at the time of the accident as a prison
officer with the Scottish Prison Service - "SPS" - was terminated in March 2005
by reason of incapacity resulting from the road accident or by reason of
incapacity stemming from an earlier incident occurring roughly two years
previously on 4 June 2001 in which the pursuer had, unfortunately, been
taken hostage by two prisoners in the prison at which he worked at
Aberdeen. Associated with that area of
dispute are various ancillary questions relating to such matters as the
pursuer's promotion prospects within SPS and his claim for pension loss. By way of further general background it may
be added that prior to taking up employment with SPS the pursuer had worked as
a joiner for some 13 years; and that
subsequent to the termination of his employment with the SPS on 25 March
2005 the pursuer was able to find employment with Bristow Helicopters at
Aberdeen Airport as a warehouse inspector, that employment starting on
7 November 2005.
[3] In
terms of a Joint Minute lodged by the parties, a number of medical reports are
agreed as constituting the evidence of their respective authors. The medical specialists in question are: Mr David J Steedman, a consultant in accident
and emergency medicine; Dr Patrick P
Kearns, a consultant ophthalmic surgeon;
Professor Ian Bone, a consultant neurologist; and Dr Alan Wylie, a consultant psychiatrist. In addition, counsel for the pursuer adduced
as witnesses Mr Timothy O White, a consultant trauma orthopaedic surgeon
and Dr Timothy D Rogers, a consultant psychiatrist.
[4] The
physical injuries which the pursuer sustained in the accident consisted of:-
(i) an open fracture dislocation of the
right wrist;
(ii) a closed head injury,
with nerve palsies, double vision and some
frontal lobe damage;
(iii) a tear of the left
sternocleidomastoid muscle, with injury to the superficial cutaneous nerves
from the C2/C3 nerve roots;
(iv) a soft tissue injury to
the left knee; and
(v) dental damage.
The pursuer also developed later
some psychiatric injury. Following the
accident the pursuer was taken by helicopter to Raigmore
Hospital, Inverness
where he remained as an in-patient until 8 July
2003, his subsequent out-patient management being conducted at
hospitals in Aberdeen, closer to
his home.
[5] Of
those physical injuries not much need be said about the last three of those
listed. In reverse order, the dental
injuries were addressed by the pursuer's own dentist under local anaesthesia
and principally involved the filling of a number of teeth. The injury to the left knee has not required
any specific treatment, investigations by radiograph and clinical examination
having excluded any fractures or ligamentous instability. While the pursuer still feels nagging mild
symptoms in the knee, his walking and other mobility is not thereby
restricted. The injury to the shoulder
muscle has resulted in reduced and altered sensation over some areas of the
lower neck, the left shoulder and the front and back chest wall, but there is
no mechanical restriction of movement.
[6] Of
greater significance is the head injury.
The pursuer suffered a period of some days' post-traumatic amnesia. He
suffered from significant double vision as a result of nerve palsy, preventing
him from driving and presenting him with not inconsiderable problems in daily
living. Fortunately, an operation which
was carried out in Ninewells Hospital,
Dundee in August 2004 was successful in bringing about a
substantial improvement in his vision.
Although the pursuer still suffers from a degree of double vision at the
extremes of vision (particularly on looking upward) he has been able to resume
driving. As he put it in his evidence,
he still had some trouble in his peripheral vision but it did not affect his
day-to-day living unless he moved quickly, which might result in him feeling a
bit sick.
[7] The
most serious injury is the injury to the pursuer's right wrist. This was on any view a very bad fracture,
with the broken bone having penetrated the skin. It required reduction and stabilisation with
crossed "K" wires and a significant period of immobility in a plaster of paris
cast. The fracture has healed, but with
a deformity in the shape of a protrusion of the ulnar head, which protrusion is
noticeable. (It was obvious to me when
the pursuer entered the witness box).
More importantly, there is a serious loss of function of the right hand
and wrist. Movement of the wrist is
severely limited. In his report
Mr White estimates this loss as 70% of the function which the pursuer
would otherwise have expected. In the
future, fusion of the wrist - to reduce pain but at the expense of mobility -
would be a real prospect in most cases in which injuries of this nature had
been sustained. However, Mr White
acknowledged that in the pursuer's case the probability of fusion is diminished
by the fact that the pursuer still has a range of function and that he is the
sort of person who would try to get on with things stoically. Earlier in his evidence Mr White had
described the pursuer as a "tryer" by which he meant someone who,
notwithstanding his injuries, would endeavour to do the most that he physically
could. Thus Mr White accepted that
with that mental attitude the pursuer could do the joinery work, which the
pursuer in his evidence accepted that he had done outside his hours of
employment with the SPS. But
Mr White observed that in doing that work the pursuer would be slow and
clumsy and would afterwards feel some pain.
Mr White's assessment of the character of the pursuer in this
respect coincided with my impression of the pursuer when giving evidence as
being someone who, if anything, understated the extent of his physical
disabilities and who had sought to overcome them and do as much as he could not
only by way of joinery work for friends and relatives but also in other
respects of daily living. Mr White's
observation that pursuer would be slow in doing such manual work also fitted
with the evidence of Mr Ian Macdonald, a building contractor with a close
friendship to the pursuer and his family, who deponed that he had had the
assistance of the pursuer as a joiner on one or two occasions after the
accident. His impression was that the
pursuer was slower and "struggled a bit" to do the joinery work.
[8] The
psychiatric injury suffered by the pursuer is described in the report by
Dr Rogers. He observed that the
pursuer suffered a loss of consciousness at the time of the road accident
followed by post-traumatic amnesia for some four days; the bilateral cranial nerve palsies were
almost certainly evidence of structural brain damage. The principal symptoms which the pursuer
described when he was seen by Dr Rogers in September 2006 were changes in
mood and self-confidence, the pursuer becoming easily frustrated and irritable
and the physical limitations to which he was subject being a cause of
exasperation; a cognitive change, in
that the pursuer had difficulty in coping with changes to routine; explosive outbursts of temper; and hyper vigilance when driving, or when
riding his motorcycle (which he resumed to only a limited extent in May 2005). In Dr Roger's opinion, the pursuer was
suffering from three co-existent psychiatric syndromes. First, the pursuer had a classic post head
injury depressive illness for which he was on appropriate treatment and likely
to be free of most of his symptoms within about six months time. Secondly, the pursuer suffered from mild post
traumatic stress disorder which was slowly settling and for which the prognosis
was also good. The third syndrome was
dysexecutive syndrome, a type of cognitive impairment caused by damage to the
frontal lobes which, in brief summary, made it necessary for the pursuer to
maintain relatively strict sequences and routines and caused him difficulty in
adapting to change. While mild, the
pursuer's dysexecutive syndrome would be long term. I did not understand counsel for the defender
to take any serious issue with Dr Roger's view of the psychiatric
consequences flowing from the road accident.
[9] Having
thus set out the injuries, physical and mental, sustained by the pursuer I find
it convenient at this point to consider the appropriate award of solatium before turning to the issues
respecting the pursuer's claim for patrimonial loss. Counsel for the pursuer suggested an award of
£45,000 of which two-thirds might be attributed to past solatium. For his part,
counsel for the defender contended for an award of £20,000 of which one-half
might be attributable to the past. Both
counsel referred to the Judicial Studies Board Guidelines in England
and Wales with
reference to the separate heads (and separate brackets) for the different
components of the injuries suffered by the pursuer. Both however recognised that it would not be
appropriate to select a figure for each component and proceed by way of simple
addition. Apart from the Judicial
Studies Board Guidelines I was also referred by counsel respectively to Mackenzie v H D Fraser & Sons 2001 SLT 116 and McDyer v Celtic Football Club
Ltd 2002 SLT 1387. For completeness,
I should also record counsel for the pursuer also entered a plea that "juries
usually award more". While it would be
appropriate to note any pertinent jury award, the basis for saying that juries
award more is largely anecdotal and equally is subject to sharp anecdotal
contradiction in some cases.
[10] Rejecting that rather subsidiary contention and approaching
matters on a conventional basis, I would say that, in my view, it is clear that
the pursuer suffered a very serious fracture of his wrist with notable
disabling effects which are likely to become worse in the future. While in view of the pursuer's stoical
attitude the fusion of the wrist is perhaps less likely in his case than in
other instances in which the patient has suffered injuries of the nature in
question, I do not think that that as such greatly affects the assessment of
damages. The pursuer is fortunate in
that the Ninewells operation brought about much improvement to the diplopia,
but prior thereto, that aspect of his disability was significantly disabling
and no doubt very unpleasant. The
pursuer has suffered psychiatrically and the difficulties which Dr Rogers
described as the dysexective syndrome are likely to be permanent. Having regard to all the injuries suffered,
including the more minor injuries which I listed and having regard to the
guidance to which I was referred and awards of solatium generally, I consider that the appropriate figure for solatium in this case would be £37,500,
of which I attribute 40% to past solatium. Interest will run on the past solatium, namely £15,000, at 4% per
annum from the date of the accident (28
June 2003) to 1 September
2007, a period of 4.16 years.
The resulting figure is £2,496 making the award for solatium including interest £39,996.
[11] I turn now to the claim for patrimonial loss. The first issue in dispute between the
parties relates to the reason for the termination of the pursuer's employment
with the SPS in March 2005.
[12] As already mentioned, the pursuer was the victim of a
hostage-taking incident in June 2001.
Following that incident he was absent from work for a little short of
six months. The reason for that absence
was the mental consequences flowing from the incident. The pursuer returned to work initially on a
part-time basis but did not work with prisoners. He was assigned to a job with the staff training
officer. After some months in that job the
pursuer was transferred to the Estates Department, where he could use his
joinery skills. According to the
pursuer's evidence, that job did involve some contact with the prisoners in the
respect that he was engaged in a programme of providing in-cell improvements
which involved building up units around sinks, toilets and the like and some
prisoners were similarly employed, for example, in painting. To that extent, the pursuer had begun
interacting with prisoners and, said the pursuer, being back to working in the
Halls (ie where prisoners were accommodated) was a boost.
[13] Following the motorcycle accident the pursuer was naturally off
work because of his injuries. He was
able to return to work in the prison in 10 December 2003 but did not take up duty as a
residential officer. Instead he went
again to the staff training office for some four months, after which he was
assigned to duties in the canteen stores, which also did not involve any direct
contact with prisoners. It is apparent
that after some time the SPS had concerns about the pursuer's continuing
employment as a residential officer.
Put bluntly, while being paid as a residential officer he was in fact
only carrying out the work of someone who would be employed on a lower salary
scale. The pursuer was, understandably
unwilling to accept being placed on that lower salary scale which would have
important consequences not only immediately but also for his eventual pension
entitlement. In the event a decision was
taken that the pursuer's engagement as a prison officer should be
terminated. That decision was
communicated by a letter of 29 November
2004 (No 6/18 of process) from the governor of the prison, Audrey
Mooney, which simply stated, as the reasons for termination -
"Ÿ You are unable to resume work in the
role of Residential Officer
Ÿ You did not feel able to consider
alternative employment in any other
capacity within the Scottish Prison Service."
[14] The evidence respecting the reasons for the determination of
the pursuer's employment with the SPS is not very satisfactory. It is not, I think, disputed that the
physical incapacity arising from the injury to the pursuer's wrist prevented
his having the necessary standard of physical fitness to carry out the "control
and restraint" procedures required of a residential officer. The position of the defender, as I understand
it, is that irrespective of those physical injuries, the mental harm suffered
by the pursuer in consequence of his being taken hostage was continuing and
likely to continue and meant that his employment could not continue for that
reason and was terminated on that account.
[15] The termination letter of 29 November 2004 was preceded by a "capability hearing"
held four days earlier on 25 November
2004. What were described in
evidence as the minutes of that meeting are No 6/17 of process but it is
apparent that no conclusion was reached at that meeting. It is however evident that the pursuer's
physical fitness was discussed and it appears to have been generally accepted
that the arm and wrist injury prevented the pursuer from executing the
appropriate control and restraint techniques required of a residential
officer. However, additionally, the
pursuer is noted that he did not see himself "going up to the residential area
again".
[16] The meeting was presided by the governor of the prison, Audrey
Mooney, who was adduced as a witness by counsel for the defender. According to Ms Mooney, the capability
meeting was simply a "ritual". The
decision had already been taken to terminate the pursuer's employment on
medical grounds. That decision had been
taken by the appropriate person in the occupational health section of the Human
Resources Department of the SPS. And
from her standpoint, this was simply a meeting which was required in terms of
the procedures to be operated in the Service.
That said, Ms Mooney expressed her own very clear view that,
irrespective of the road accident, the
pursuer would never have recovered sufficiently from the hostage incident to
resume duties as a residential officer.
[17] There is in process a document, No 7/5 of process, headed
"Classic Medical Retirement Certificate" which bears to give the author's
opinion that the pursuer is likely to be permanently prevented by ill-health
from discharging his duties, the ground for that opinion being that the officer
is suffering from PTSD. The certificate
is dated 1 March 2003
(but that may be a typing error: it also
bears a receipt stamp in March 2005). The
document was not spoken to in evidence and the qualification of the author, or
the materials upon which he formed that view are far from clear. It is in particular unclear how the reference
to PTSD may have come about, since, as counsel for the pursuer pointed out,
that was not the prior diagnosis of the pursuer's condition at any point
according to the other material before the court. In the course of his cross-examination the
pursuer expressed the belief that the document might have been arranged by Human
Resources to support the view that such was the basis of his medical
retirement. In the circumstances I do
not find this document of any assistance.
[18] It is however the case that at that time the pursuer did wish
to have his medical retirement based on the sequelae
of the hostage incident. As I understand
it, that was to his financial advantage.
It is also to be noted that the pursuer raised an action for damages
against the Scottish Ministers (as representing the SPS) arising out of the
hostage incident. The pleadings in that
action are No 7/8 of process. It is
therein averred on behalf of the pursuer that "following a capability hearing
on 26 November 2004 the
pursuer was dismissed from the SPS on the basis that he was no longer able to
fulfil his duties as a prison officer."
However, his employers averred in their defences that the reason for
termination was the pursuer's physical inability to work as a residential
officer by reason of the injuries suffered in the road traffic accident with
which the present proceedings are concerned.
In response to that contention it is averred on the pursuer's behalf
that "the pursuer has recovered from his road traffic accident. It is the symptoms associated with the
hostage incident which had rendered the pursuer unfit for work involving
contact with prisoners." No proof took
place in that action, which was settled extra-judicially. Again, I do not feel able to draw much
assistance from this document, beyond an indication that the pursuer was
content for emphasis to be placed on the hostage incident, rather than the road
traffic accident, in a situation in which it was financially advantageous to
him for that to be done. Conversely in
giving evidence in the present proceedings it was my impression that the
pursuer was inclined to minimise the difficulties presented by the psychiatric
effects of the hostage incident in his return to work with prisoners and to
place much greater comparative weight on the physical difficulties.
[19] In contending that the pursuer's inability to continue working
as a prison officer arose from the mental state produced by the hostage taking
incident, counsel for the defender placed reliance on inter alia the psychiatric report prepared by Dr Wylie dated 25 June 2003, following an interview
with the pursuer on 5 June 2003. At that interview the pursuer described,
among other things, being on occasions physically sick by the prospect of going
in to work. As a matter of diagnosis,
Dr Wylie concluded that the pursuer had gone from an adjustment disorder
to a depressive disorder. Dr Wylie
was of the view that, in addition to the counselling which the pursuer was
receiving and the psycho-therapeutic assistance which he was receiving from
Professor Alexander (a psychiatrist whom the pursuer was attending in Aberdeen),
the pursuer would benefit from being commenced on anti-depressant medication. Meanwhile Dr Wylie had the feeling that
while the pursuer might improve he was likely to be left with some
"considerable residual symptomatology which may well interfere in the long term
with his ability to function as a prison officer in regular contact with
prisoners in the course of his occupation".
He went on to say that - "The extent of the recovery cannot be
determined at this stage until a full and aggressive attempt at pharmacotherapy
has been undertaken."
[20] Some further comments should be made respecting Dr Wylie's
report. First, self-evidently, it
ante-dates the road accident. At the
time the pursuer was not on any medication and treatment was recommended, as
just indicated. The pursuer in fact received
anti-depressant medication after the road traffic accident. To that extent, the report is of limited
assistance as to the state of affairs prevailing at the time of the decision to
terminate the pursuer's employment. Secondly,
as Dr Roger pointed out in the course of his evidence, the interview on 5 June 2003, and the email from
the pursuer's wife to which reference is made in the report, both occurred on
the eve of the second anniversary of the incident, and it might be expected that
symptoms might be re-triggered. Thirdly,
as Dr Rogers also pointed out, some three weeks after his interview with
Dr Wylie the pursuer was able to go with a group of motorcyclists on a
weekend motorcycle tour of the North West Highlands, which it would have been
very hard for him to have done if he was suffering from any significant
depressive illness.
[21] For his part, Dr Rogers expressed the view that when he
saw the pursuer he appeared largely to have made a recovery from the hostage
incident. He based this view not only on
what was said to him by the pursuer and his wife but also on the records which,
he said, noted improvement following the pursuer's return to work after the
road traffic accident. The manuscript
notes by the general medical practitioner recorded improvement and in his
letter of 24 February 2004
to that practitioner, Professor Alexander had noted what was in effect a
considerable resolution of symptoms; but also concern on the part of the
pursuer that his physical difficulties might prevent his return to working in
the Halls.
[22] In this state of the evidence it is difficult to make a clear
finding as to the actual ground or grounds upon which the SPS decided to
terminate the pursuer's employment for health reasons. I did not hear from the decision-taker. However, it is, I think, clear that because
of the arm injury and the pursuer's consequent inability to carry out the
appropriate control and restraint techniques and procedures the employers were
aware that the pursuer did not satisfy the requirements of physical fitness for
a prison officer and that he would never do so in the future. It is also, I think, clear that there had
been a history of mental difficulties also known to the employers. The conclusion which I have formed on the
basis of the material before me is that the probability is that the decision to
terminate was based on both the physical disabilities and also the history of
psychiatric difficulties. I am not able
to accede to the invitation of counsel for the defender to find that, on the
balance of probabilities, the pursuer's employment would have been terminated
anyway, even if the road accident had not happened, on the basis that the
hostage incident had rendered the pursuer mentally incapable of working as a
prison officer. Counsel advanced two
principal grounds for making that submission.
First, there was the position recorded prior to the road traffic
accident culminating into what was said in the report by Dr Wylie. I have already commented upon the report and
the limitations to its utility in addressing the situation 18 months later,
after the pursuer had had the benefit of the pharmacotherapy which
Dr Wylie counselled. Secondly,
counsel also invoked what had been said by Ms Mooney in her evidence. I do not question the genuineness of Ms
Mooney's belief that the pursuer would not return to work as a prison officer,
but Ms Mooney does not have any professional qualification in mental
health and, as I understood it, her belief was simply based on her awareness of
an earlier case of the prisoner officer who had been taken hostage and who had
not been able to resume duties.
[23] The practical consideration underlying the submission of
counsel for the defender that the Court should find that the reason for the
termination of the pursuer's employment was solely mental incapacity arising
from the hostage incident was no doubt the consequences of such a finding for
the calculation of the pursuer's claim for damages for loss of earnings and
loss of pension benefits. If the pursuer
would have lost his job solely because of the sequelae of the hostage incident, his salary and pension benefits
with SPS could not be used as a measure of his loss thereafter.
[24] For his part, counsel for the pursuer submitted that it was
sufficient for him that the evidence demonstrate that the injuries suffered in
the road accident made a material causal contribution to the loss of employment
in the SPS. Reference was made to Simmons v British Steel Plc 2004 SC (HL) 94, particularly at para. [18]. I understood counsel for the defender not to
dispute that if the loss of the pursuer's employment with SPS occurred by
reason of both the physical injury suffered in the road accident and
psychiatric problems resulting from the hostage incident, the defender would
have made a material contribution to the loss of employment and one would be in
a Simmons situation. Accordingly, in light of my conclusion on the
evidence available to me that on a balance of probabilities the road traffic injuries
materially contributed to the termination of the pursuer's employment, I shall
proceed on the basis that the employment with SPS is the appropriate measure
for assessing the pursuer's claim for patrimonial loss following the
termination of that employment.
[25] I turn now to the next area of dispute, namely promotion. It was contended by and for the pursuer that,
had he continued in the SPS, he would have been promoted from his existing
posting in Band D of the salary scale to a posting in Band E by the
time of the proof. According to the
pursuer's evidence, he had "acted up" to Band E on some occasions in the
past; and he had passed the accelerated
promotion examination. He said that he
was one of only a small percentage of successful candidates. In his report (No 6/6 of process) the
employment consultant, Mr Gordon Cameron, adduced by counsel for the
pursuer stated that there were good grounds for believing that the pursuer
might by now have obtained promotion to Band E. However, earlier in his report (para. 3.4)
Mr Cameron acknowledges that only the SPS could provide confirmation on
the realistic prospects of promotion for the pursuer. Mr Cameron then goes on to state -
"3.5 The SPS report that in recent years there
was something of a block on promotion following the closure of a number of
small prisons and a subsequent temporary glut of staff. However, that process has been completed and
things are moving again on the promotion front.
This being so, there seems to be good grounds for believing that
Mr Henderson would by the present date have realistically been in the
running for a promotion to Band E."
In his oral evidence
Mr Cameron indicated that the basis for that was a telephone conversation
which he had had with someone in the SPS.
[26] In her evidence Ms Mooney gave her views on the pursuer's
promotion prospects. She indicated that
these were very few. Re-organisation and
cuts in the SPS meant that there was little opportunity for anyone to be
promoted. The pursuer would have to be
extremely lucky to have been promoted. Having
been referred to what was reported in the passage in Mr Cameron's report
which has been quoted above, Ms Mooney was clear that promotion was not "moving
again" in the North East of Scotland, though she accepted that it might
possibly be so elsewhere.
[27] Insofar as there may be conflict in the evidence on this
question I prefer the views of Ms Mooney, who has more direct knowledge of
matters, than Mr Cameron whose more optimistic view is based upon, but
does not wholly follow from, the hearsay noted in para. 3.5 of this
report. As was pointed out by counsel
for the defender in his submissions, the pursuer had served for a good number
of years in Band D without obtaining promotion. His absence from active prison officer duties
following the hostage incident seemed unlikely to assist. Additionally, as the pursuer fairly
recognised, in a small gaol such as Craiginches promotion opportunities did not
arise frequently and to obtain promotion he would probably have to move to a
larger establishment in the central belt, such as HMP Shotts. As noted by Dr Rogers, the pursuer was
born and brought up in the Inverurie area and had lived there for all of his
life, the last 18 years having been in Kenmay with his wife. While the pursuer stated in evidence that to
obtain promotion he would be willing to move to the central belt, I do not find
that statement persuasive. The pursuer's
family and social circumstances as disclosed in the evidence effectively mean,
in my view, that the pursuer is largely thirled to living if not in Donside, at
least in the North East of Scotland and that the relatively small financial
benefit of promotion to Band E would not clearly outweigh the disruption
and inconvenience of moving his household to the central belt or the cost and
inconvenience of commuting on a weekly basis.
I therefore have little hesitation in rejecting the contention that, on
the balance of probabilities, had the road accident not occurred, the pursuer
would by now have achieved promotion to Band E.
[28] It was also submitted by counsel for the pursuer that, had the
pursuer not received such promotion by now, he would have left the SPS and
taken up employment as a joiner. The
submission proceeded upon what the pursuer had said in evidence, with some
reliance on some statistical information on the supply in the United
Kingdom of labour in the construction
industry reported by Mr Cameron (paras. 3.7 to 3.9 inclusive) and from the
evidence of Mr Macdonald and Mr McConnach that, as it was put, better
times for joiners had arrived in the North East in the last 8-10 years. It also proceeded upon the view that earnings
which the pursuer might make from joinery were higher.
[29] I have to say that I did not find the pursuer's evidence on
this matter to be at all persuasive. Nor
could I find any material support for it in what was said by Mr Cameron,
Mr McDonald or Mr McConnach.
Although it may have been that when the pursuer joined SPS in 1988 there
was a downturn in the construction trade, the evidence for which was pretty
vague, but there were no doubt other reasons affecting the pursuer's decision
to seek the more secure employment with the SPS. The pursuer was not promoted to a higher Band
prior to the road accident and he was evidently not tempted by the claimed
greater financial attractions of employment as a joiner in the many years
preceding the road accident, including the period after his having been taken
hostage - when one would think that escape to the claimed better remuneration
of a joiner might be an obvious and attractive solution. In my view, the pursuer's contention that in
the absence of promotion he would by now have left the SPS is a further
indication of the pursuer's willingness to assert, or at least go along with, what
is conceived to be of best financial advantage to him in the context of the
particular litigation in which he is involved.
[30] The issue of promotion also arises in respect of the pursuer's
claim for loss of pension benefits, there being a further contention that,
assuming he had stayed with the SPS, by retirement at age 60 the pursuer would
have received promotion from Band D to Band E. The pursuer was 47 years of age when his
employment was terminated. As already
mentioned he had been employed by the SPS since 1988 as a Band D officer without
promotion. For the reasons already
indicated, I consider that the opportunities for promotion were few and that
the probability of the pursuer being a successful candidate for one of those few
opportunities were low. It is of course
a possibility that prior to retirement the pursuer might have been promoted but
in my view there is no proper evidential basis upon which I can find that on
the balance of probabilities promotion to Band E would have occurred prior
to the pursuer's retiral from the SPS at age 60.
[31] A further issue in relation to promotion prospects is raised on
the other hand by counsel for the defender respecting the pursuer's prospects
for promotion in his current employment with Bristow. Evidence on this was given by Mrs Julie
Geddes, the Human Resources Manager for the UK Business Unit of Bristow
Helicopters. It is, I think, unnecessary
to rehearse her evidence in any detail.
The upshot was basically that the pursuer's prospects for promotion were
pretty difficult and while the possibility of some form of promotion was not
excluded I similarly do not find any proper evidential basis for holding that,
on the balance of probabilities the pursuer will be promoted to a better
remunerated post within employment in Bristow Helicopters.
[32] I turn now to the issue described by counsel as the "early
recoveries" issue. As already mentioned,
in May 2004 the pursuer raised proceedings against Scottish Ministers for
damages arising out of the hostage incident alleging fault on the part of
certain officers in SPS. I would record
that the pursuer was represented by different counsel and different solicitors
from those acting in the present proceedings.
(I speculate that the reason for this may be that the claim against the
Scottish Ministers was conducted via a trade union). In that action the pursuer sought damages for
the non-patrimonial consequences of the hostage incident on his mental health
and initially for loss of overtime payments.
Following the termination of his employment with the SPS, the pleadings
were altered to include averments relating to the termination of employment and
loss of wages for the future. In July
2005 the defenders in that action - the Scottish Ministers - lodged a Minute of
Tender in a certain sum indicating for CRU purposes a sum which represented
loss of earnings. The tender was not
accepted. However, in advance of the
diet of proof an increased sum was offered, again without any admission of liability,
which was accepted extra-judicially.
[33] Through his counsel the defender in the present proceedings
contends that a part of the settlement sum in the prior action should be
deducted from - or at least brought into account in assessing - his liability
for the pursuer's patrimonial loss. With
a view to establishing a basis for assessing that part of the settlement sum counsel
for the defenders called as a witness Mr Barnes, Advocate, who was the
counsel instructed for the pursuer in the earlier proceedings against the
Scottish Ministers. (Since counsel for
the pursuer in the present proceedings did not object to this, I assumed that
that client confidentiality had been waived, as was to be inferred from the
documents recovered from the pursuer's solicitors in the earlier litigation).
[34] Mr Barnes produced a statement (No 7/11 of process) based
on such papers as he had retained in electronic form. They gave two valuations of the claim on two
bases, both greatly exceeding the sum at which the action was compromised. As one would expect, in settling the claim at
the improved offer, Mr Barnes did not have any particular break-down in
mind. But he offered retrospectively a
break-down arithmetically scaled down from his earlier valuation.
[35] Counsel were able to offer only limited assistance by way of
citation of authority on the question of principle posed by the introduction
into these proceedings of the compromise in the earlier action. In particular, counsel for the defender
essentially advanced his position on the basis that there would be "double
recovery" and that it would be unfair that the pursuer should recover more than
his true loss. For his part counsel for
the pursuer submitted that what may have been settled as a compromise, without
admission of liability, in the earlier action was irrelevant to the defender's
liability. He referred to an article
respecting third party procedure in 2003 SLT (News) 113. I was also referred to certain passages in
Chapter 7 (Mitigation of Damage) in McGregor on Damages 17th
Ed. and, more significantly to paragraph 35-132 in that work.
[36] In approaching this issue it has to be noted at the outset that
in the action against them the Scottish Ministers did not admit liability; in particular they did not admit that the
termination of the pursuer's employment was a consequence of the hostage
incident; on the contrary their
contention was that the termination of his employment was a consequence of the
injuries sustained in the road traffic accident. One cannot therefore characterise the
settlement payment as a payment made in the regular course of economic
activity, such as the take-up of alternative employment in order to mitigate
one's losses. While the Scottish
Ministers no doubt had what are sometimes described as "commercial grounds" for
settling, it was on any view a payment made without any admission of
liability. As I understand it, at common
law the author of a delict is not entitled to escape or reduce his liability in
damages by reason of payments made to the injured party by some third party for
benevolent or similar reasons (cf. Dougan
v Rangers FC 1974 SLT (Sh.
Ct.) 34).
The thrust of the common law rule receives some statutory expression in
section 10 of the Administration of Justice Act 1982, to which some attention
was given in the course of the discussion.
The existence of that rule or principle seems to me to be inconsistent
with the central contention of counsel for the defender that in principle the
law does not in any circumstances contemplate double recovery. If the Scottish Ministers had expressed the
payment to be entirely benevolent or ex
gratia, the matter would be beyond argument. I do not see that the fact that it was made
against a claim in respect of which liability was denied must necessarily take
it out of that principle. Counsel for
the defender was unable to present me with any authority to the contrary
effect.
[37] Further, the practical problems presented by the approach of
counsel for the defender seem to me to offer reason for thinking that his
approach is unsound. Counsel
understandably did not suggest that the entirety of the settlement payment
should be taken into account. Plainly
the loss claimed in the action against the Scottish Ministers involved the
mental harm suffered by the pursuer as a result of the hostage incident and
other losses, ante-dating the termination of employment. So counsel for the defender felt himself
constrained to set about some exercise of apportionment and hence the calling
of Mr Barnes as a witness. But in
my view it is an unrealistic exercise to take a valuation by counsel of the
claim on every optimistic assumption and then scale it down on a figure which
is simply an unexplained and inexplicable compromise. One of the elements in the particular
contention on the pleadings was the reason for the termination of
employment. Why it should be assumed
that that element weighed equally in the minds of those making and accepting
the compromise is not evident to me.
Nor, in fairness to Mr Barnes, did he say that such was the
case. It was simply an offer which,
taken in the round, seemed a reasonable compromise and he had no particular
figures in contemplation. In my view, it
would be inexpedient and not in accordance with the wider interests of the
system of the administration of justice for the Court to entertain inquiry into
the thinking of parties to an extra-judicial settlement - in any event res inter alios acta - such as that in
the present case. Ultimately it would be
to inquire into the very issues resolved by the compromise and thus defeat the
purpose and utility of compromise.
[38] For these reasons I reject the submission of counsel for
defender that any account should be taken of the settlement in the action
brought by the pursuer against the Scottish Ministers.
[39] I turn now to quantification in the light of the foregoing
conclusions and observations.
Past
Wage Loss:
[40] Parties are agreed on the
relevant salary scales. Counsel for the
pursuer tendered an illustrative calculation based on the assumption of no
promotion within either the SPS or Bristows, which brings out a net wage loss
of £26,415. As I understand it, counsel
for the defender reached a broadly similar figure. Having examined the arithmetic, I find no
reason to question in any material way the accuracy of the calculation put
forward by counsel for the pursuer. That
figure is before allowing interest at 4% per annum. However, according to my arithmetic, it is
not easy to see how counsel for the pursuer arrives at a figure for interest of
£4,226. Interest should only run from 25 March 2005, when the
pursuer's employment terminated. Prior
to that date he had suffered no wage loss, the sum of £7,748 referable to the
period 28 June 2003 to 30 December 2003 being simply
the amount paid to him in that period subject to the condition of its being
recoverable in the event of success in this claim. So, calculating interest from 25 March 2005 to 1 September 2007 (2.58 years) at 4% per annum
on £18,667 produces a figure for interest of £1,926. So I assess the amount of the pursuer's past
wage loss in the sum of £26,415 and interest of £1,926 totalling £28,341 which
I shall round up to £28,350 to reflect the fact that the past wage loss has not
been altered to take account of the interval between the date of the proof and
the date of decree.
Future
Wage Loss to Age 60:
[41] It
is necessary to approach first the loss likely to occur prior to retirement
from the SPS. The first step exercise
here is of course to identify the differential between the pursuer's earnings
as a prison officer and his earnings at Bristow and apply an appropriate
multiplier. The current difference is
between the SPS annual net earnings of £19,301 and the annual net earnings in
Bristow of £13,074, namely a difference of £6,227 per annum. The pursuer is currently 48 years of
age. Counsel for him submitted that the
appropriate Ogden multiplier for
this period to age 60 was 10.623.
Counsel for the defender however sought rather to address future wage
loss to age 65, without making any distinction flowing from the SPS retiral age
of 60. His approach obviously gives a
different multiplier. Part of the reason
for counsel for the defender seeking to calculate wage loss as a single calculation
to age 65 was, I think, in order to bring in the sixth edition of the Ogden
Tables in which provision is made for qualification of the multiplier by reason
of risks other than mortality. However
the relevant tables in the sixth edition do not contemplate wage loss to a
retiral age of 60 and for reasons which I think will become more evident, I do
not think that one can simply approach the calculation of future wage loss in
this case as a single calculation to age 65.
Nonetheless, one has to recognise that the Ogden multiplier selected by
counsel for the pursuer takes account only of risks of mortality and not the
other vicissitudes, including ill-health, and loss of employment by way of
redundancy etc. which may affect the economic
life of the person concerned. In
addressing those risks it appears to me however that employment in the SPS is a
more secure employment than employment in the private sector with Bristows. Doing the best I can, it appears to me that
it would be appropriate to modify the multiplier of 10.623 to 9.75. Applying that multiplier to the multiplicand
of £6,227 produces a result of £60,713.
Future
Wage Loss After Age 60:
[42] This
element assumes that, but for the road accident injuries, on retiring from the
SPS, the pursuer would have sought and obtained other employment. The pursuer's position was that he would have
continued to work as a joiner, he having already left the SPS in the event of
his not having received early promotion by the date of the proof. I have already expressed my views on the
latter part of that proposition but I am prepared to accept that on retirement
from the SPS at age 60, the pursuer may be taken to have sought employment
as a joiner, to at least some extent. So
the first issue under this head is the appropriate level of earnings to take
into account. It was said by
Mr McConnach that he knew of some joiners making £1,000 gross per week but
he qualified that in cross-examination by agreeing that such an individual will
be working for 60 or more hours per week for a housebuilder. I have much difficulty in accepting that
after his retirement from the SPS at age 60 the pursuer would have the
desire, or energy, to work at that rate.
Without wishing to be in any way flippant, having seen
Mrs Henderson in the witness box I am not sure that she would be at all
content that her husband on retirement should indulge in such long hours of
working. Mr Cameron's report
contains (para. 3.10) statistical information on joiners' earnings, the median
figure being £21,326 gross (approximately £16,650 net). Given the hypothesis of a return to joinery
post-retirement it seems to me unlikely that the pursuer would be earning more
than at best the median figure, even allowing for higher local rates in the Aberdeen
area. Counsel for the pursuer suggested
a multiplier of 4.59, based on the Ogden Table.
I was not referred by him to the particular table but I note from
Table 9 of the 6th Edition that such is the multiplier (at the
2.5% return) for loss of earnings to pension age 65 (males) where the person
concerned has attained age 60 at the "date of trial". So the multiplier appears to assume survival
to age 60. Counsel for the defender also
pointed out that any such multiplier had to be discounted for risks other than
mortality. I agree. For the purposes of this sector of the future
wage loss, I do not find that the tables for risks other than mortality in the
new edition of Ogden provide any
useful assistance.
[43] The Ogden Tables are of course only guides, albeit in
appropriate cases no doubt useful guides.
But the present exercise involves considerations which are not readily
reducible to arithmetical or statistical precision. In my view it is ultimately a large "jury"
question which is presented in this branch of the quantification of the
pursuer's claim. It involves a judgment
as to the likelihood of the pursuer's resuming work as a joiner, the extent to
which he would do so, his willingness to continue and so on. These are all subject to the other risks of
life such as injury or illness unrelated to the present circumstances. There is also, on the other side, a question
as to whether the two years of Bristow earnings between 60 and 62 should be
brought fully into account. That
employment is also subject to non-mortality risk. In the event, I consider that I should use
the traditional judicial weapon of the "broad axe". Employing that implement, I assess a future
wage loss for the period between ages 60 and 65 in the sum of £32,000.
Loss
of Employability:
[44] In my view an award under the
head of Loss of Employability is appropriate in this case. While the pursuer has been fortunate in
obtaining employment with Bristow's if, for any reason, that employment should
cease to be available, it appears to me that with his serious physical
disabilities he will suffer a substantial disadvantage on the labour
market. Counsel for the pursuer
suggested a sum of £14,000 under this head.
Counsel for the defender suggested a somewhat smaller sum but in the
whole circumstances I consider that the sum proposed by counsel for the pursuer
is appropriate.
Loss
of Pension Benefits:
[45] This matter was covered by the report and evidence of
Dr Pollock, an actuary. In the
event, I think the matter is largely uncontroversial. According to Dr Pollock's report, on the
"no promotion" assumption upon which I feel obliged to proceed, and before
allowance of any benefit from the SP2 Pension, the loss of pension benefits is
estimated at £33,560. Dr Pollock's
report was however based on the salary scales as known to him at the time of
its compilation and in light of the increased salary scales he indicated in his
oral evidence that that sum should be increased by some £4,200, thereby making
the sum in issue £37,760. As I understood
it, Dr Pollock accepted that the SP2 Pension should be deducted. That amount is £7,600. So the net loss of pension benefits is
£30,160.
Necessary
Services:
[46] This matter has been agreed, including interest, in the sum of
£3,000. I assume that there is also
agreement as to the persons and the proportions in which the pursuer is to pay
over this sum in terms of s. 8(2) of the Administration of Justice Act
1982.
Personal
Services:
[47] The principal contention
under this head of claim was that the pursuer was prevented by reason of his
physical disabilities from performing the joinery work which he would otherwise
have given to his friends and relations on a gratuitous basis. The evidence disclosed, as the pursuer
accepted, that he was yet capable of performing joinery services albeit with
difficulty and slowness. As I understood
him, counsel for the pursuer did not ultimately dispute that this was simply a
matter of a broad lump sum approach and in this respect I assess the relevant
amount as being £5,000 inclusive of interest for past services.
Miscellaneous:
[48] The only remaining head relates to miscellaneous costs and
expenses, principally the dental charges, and it appears that parties are
agreed that the sum, inclusive of interest, which should be allowed under this
head is £190.
[49] Listing all these heads together the award of damages is
accordingly as follows:-
|
1
|
Solatium, including interest:
|
£
|
39,996
|
|
2
|
Past Wage Loss, including
interest:
|
£
|
28,350
|
|
3
|
Future Wage Loss
(a) to age 60 £60,713
(b) after age 60 £32,000
|
£
|
92,713
|
|
4
|
Loss of Employability
|
£
|
14,000
|
|
5
|
Loss of Pension Benefits
|
£
|
30,160
|
|
6
|
S. 8 Necessary Services,
including interest
|
£
|
3,000
|
|
7.
|
S.9 Personal Services, including
interest
|
£
|
5,000
|
|
8.
|
Miscellaneous expenses, incl
interest
|
£
|
190
|
|
|
|
£
|
213,409
|
I
shall according grant decree for payment by the defender to the pursuer of the
sum of £213,409 with interest at the usual rate from the date of decree until
payment.
