Munnoch v Tay-Forth Foundries Ltd [2007] ScotCS CSOH

1. David Munnoch, the pursuer, who was very tearful and nervous at the outset of his evidence and who (subject to the comments made below) impressed as essentially honest and reliable. He spoke in support of his own averments.

2. Sharon Lee, the pursuer's partner, who impressed as a very pleasant young woman doing her best to tell the truth. She supported the pursuer's account. She felt that the pursuer's shooting and his dogs had kept him going through difficult times.

3. James Munnoch, the pursuer brother "Jamie", who gave somewhat imprecise evidence about what he was minded to offer the pursuer by way of employment and earnings. He had indicated that if push came to shove he would have given the pursuer a start as a labourer until he could find something better or he would have tried to help him find something better. Unfortunately, James Munnoch also suffered an accident on 25 April 2005 and was unable to work for about 6 months.

4. James Patterson, who had worked with the pursuer. He had seen him both before and after the accident. He also spoke to the employment which he (Mr Patterson) and others had managed to obtain after being made redundant.

5. Thomas Teven, a landscape gardener who worked as "Garden Inspirations". He had not employed the pursuer - who was not working as "a gardener on the side". No money had changed hands.

6. Lorraine Easter, who explained how the pursuer had become involved in arranging for some decking work to be done. The pursuer did not do much.

7. Robert Baird, who knew that the pursuer was a very good worker prior to his accident. Field sports are what had kept the pursuer going. Mr Baird had gone with him effectively as "a pack horse" to carry things for him. He had also done the pursuer's garden for him.

8. Mr Michael John McMaster, FRCS, Consultant Orthopaedic Surgeon, who spoke to his report Nos. 6/1 and 6/8 of Process - which can be referred to for their terms. The pursuer's position was now permanent. He was not fit for heavy manual work. The defender's medical expert, Mr Brown, had been Mr McMaster's Registrar 25 years ago. There was nothing in the defenders' surveillance video which caused him surprise. Swimming and exercise is reasonable and is sometimes recommended by medical practitioners. It was widely accepted that a back was likely to reach optimum state by attempting to do such activities and accepting a degree of discomfort. That was what the pursuer was trying to do.

9. Steven Walton, who spoke of the changes in the pursuer since the accident. He also explained more about how he became involved in providing decking for Lorraine Easter as a favour. The pursuer never did any heavy lifting and (to Mr Walton's knowledge) he never got paid anything. The sawing of wood was relatively easy.

10. Mr Thomas Brown, FRCS, Consultant Orthopaedic Surgeon, who spoke to his report No 7/1 of Process which had been prepared for the defenders. There were inconsistencies in what the pursuer had told him and in what could be seen in the surveillance photographs. Mr Brown accepted that the pursuer gave him the impression that he (the pursuer) was the sort of person who wanted to get on with life. He was in general agreement with Mr McMaster's report. There was a possibility that lines were crossed (between Mr Brown and the pursuer) in relation to the so-called inconsistencies. He felt that the pursuer was genuine. That was Mr Brown's impression.

11. Brian Keith, the employment consultant instructed on behalf of the pursuer, who spoke to his report No. 6/4 of Process which can also be referred to for its terms. Mr Keith saw the pursuer face to face and interviewed him. Working with the pursuer's brother was simply one option for the pursuer. A whole broad occupational area is not open to the pursuer now - such as heavy jobs and manual active employment. The pursuer will eventually find work but it will take him some time. He seemed to be the sort of person who would stay in a job once he got it. However he had been out of work for some time. It can be a disadvantage working with a relative.

12. Andrew Nicoll, the employment consultant instructed on behalf of the pursuer, who spoke to his report No. 7/4 of Process. Mr Nicoll would always prefer to see someone face to face - but that had not been possible in this case. Telephone was the best that could be arranged. In relation to the pursuer's job history "we rattled through it". He thought that the pursuer "had a bit of a spark to him". Mr Nicoll thought that the pursuer was going to work for his brother and, for the purposes of his report, that seemed to be enough. However, Mr Nicoll accepted that he did not ask the pursuer what would happen if a job with his brother did not work out. He accepted that he should have asked him. There was some uncertainty in relation to his conclusions. The pursuer was "bright" in the sense of positive - rather than academically. He was capable of going back to light or moderate work but he was not as flexible as a fully fit and able bodied employee. He was slightly more vulnerable and there was an added risk, a greater risk, of unemployment in contrast with a fully fit man. Mr Nicoll had no reason to think that the pursuer was considering other employment (other than with his brother). However, he regretted not putting that possibility to him. It was agreed that the pursuer could not do heavy work. The pursuer is not going to be the first and most obvious candidate for a job. He felt however that the notion that the pursuer would strike out on his own was difficult. Jobs at the bottom of the tree would have reduced job security. There was no statistic that would tell anyone what will actually happen to the pursuer.

13. Les Trueman, insurance claims investigator, who spoke to inter alia the surveillance report Nos. 7/2 of Process, the photographs No.7/5 and the video No. 7/3.

The Joint Minute

[18 ] Helpfully, in terms of the Joint Minute of Admissions, No. 20 of Process, the parties also agreed the following:-

1. that Production No. 6/2 of Process are the medical records of Falkirk District Council relating to the pursuer;

2. that Productions Nos. 6/3 and 6/7 of Process are the medical records of Dr Thompson , general practitioner, relation to the pursuer;

3. that Production No. 6/5 of Process are the pursuer's earning's details from 19 August 2003 relative to his employment with the defenders;

4. that but for the accident the pursuer would have earned prior to his redundancy from his said employment £4,486 net more than he did in fact earn;

5. that but for the accident the said employment with the defenders would have terminated on 19 August 2004; and

6. that from November 2005 to February 2006 the pursuer was employed as a watchman at the site of his employment with the defenders and earned £420.

The Submissions for the Pursuer

[19 ] At the end of the proof, Mr Blessing's submissions for the pursuer were to the following effect.

General (Pursuer)

[20 ] As a result of the accident, on 27 November 2003, the pursuer suffered a burst fracture of his 12^th thoracic vertebra, damaged his T11/T12 disc and suffered degenerative change to that area. He suffered arthritic changes but symptoms will not progress in the future. It was not possible to separate out the various parts of the injury, and the pain that they bring but it was recognised that they are a source of chronic pain.

[21 ] The pursuer was 39 years old at the time of the accident. He has suffered, and continues to suffer, a restrictive amount of pain. He will do so for the rest of his life.

[22 ] The pursuer was placed in a body cast until 16 January 2004. He then had to use a spinal brace for approximately 4 months. He then had to go to physiotherapy for about 6 months. He also attended the pain clinic until at least August 2005.

[23 ] The pursuer complains of back pain and also a sleep nausea probably caused by the drugs he required to take following the accident.

[24 ] The pursuer seems to have had a positive attitude to his injury and restriction although the upset and frustration caused were obvious. His marital life has been adversely affected. He seems to be different in the sense that he is more "crabbit" and a worrier and is less confident.

[25 ] The pursuer gave evidence in a forthright manner, suggested Mr Blessing.

[26 ] All the medical evidence was that he was genuine in his complaints. There was an apparent discrepancy in the level of reported disability to Mr McMaster and to Mr Brown but that may be explained by the opaque terms used in the history - such as "light housework" or "weights of significance". The doctors did not make much of those discrepancies and any differences are not of any great significance. Both medical experts stated several times that they thought that the pursuer was genuine in his complaints. At the outset of his evidence the pursuer was very clearly greatly upset for a considerable period. That was a sign of the emotional impact which the accident, and the resultant change of life, has had upon the pursuer.

[27 ] The pursuer did not tell the truth in a job application (in the bundle to be found in Production 6/6 of Process) but that was sign of how desperate he had become. He volunteered the information in evidence in chief. It was not dragged out of him. He was a man trying to minimise his loss. He was described by both himself and Mr McMaster as "desperate".

[28 ] I was invited to hold that the pursuer was truthful and reliable.

Solatium (Pursuer)

[29 ] In relation to solatium for pain and suffering Mr Blessing submitted that there should be an award of £25,000 with interest on two-thirds of that sum (two-third being attributed to the past.).

[30 ] In support of his submission, Mr Blessing referred me to the Judicial Studies Board Guideline for the Assessment of General Damages in Personal Injuries Cases, Chapter 6, section B ("Back Injuries"). It was suggested that paragraphs (a) ("severe") (iii) was appropriate. Paragraph (a)(ii) was too high. Paragraph (b) ("moderate") (ii) was too low. Paragraph (b)(i) could be a possibility but no mention is made of how the pursuer changed as a result of the accident.

[31 ] In the present case, the pursuer suffered a fracture of a vertebral body and he continues to have a level of pain that was described as "surprisingly high". There was no inference that he was not suffering the pain, just that it was surprisingly high. His sex life has been affected and he remains in severe pain and discomfort.

[32 ] Mr Blessing also provided me with the following references:-

· Leebody v Liddle 2000 SCLR 495 (soft tissue damage due to whiplash: £15,000 adjusted for inflation to £17,400);

· Kumar v Kumar, 1997 Kemp and Kemp F5-014 (crush fracture and serious soft tissue injury to spinal ligament; £18,000 adjusted for inflation to £22,500);

· Scully v Hoogstraten, 1993, from Butterworths Quantum No. 948 (crush fracture; £10,000 adjusted for inflation to £14,000);

· Mulroy v Garland, from Butterworths Quantum No. 970 (anterior wedge fracture of T12 and L1 £20,000 adjusted for inflation to £25,800).

Loss of Earnings / Loss of Employability (Pursuer)

[33] In relation to loss of earnings and loss of employability there was evidence from two expert witnesses - Mr Keith for the pursuer and Mr Nicoll for the defenders.

[34 ] Mr Keith had prepared a reasonable report based on a face to face interview with the pursuer which lasted somewhere between 1.5 and 2 hours. Mr Keith placed considerable importance on the face to face nature of the interview. He felt that in this field it was important to build up a picture of the pursuer. That was helped by developing a rapport with the interviewee and reading their body language. It was of considerable significance, suggested Mr Blessing, that he also had practice as a career's advisor. That informed his role as an expert and vice versa. It was clear that he had recent experience of actually trying to assist people back into the job market. Within his report a broad view is taken and a scene is set. He endeavours to provide the reader with a background and context in which his report may be placed. Ultimately the import of the background information is left to the reader to judge. The approach is what is important.

[35 ] The approach adopted in Mr Keith's report was reflected in his evidence. He gave evidence in a clear manner and obviously liked to rely on statistical tables to justify his views. He was open to concession if appropriate, for example, thinking that the pursuer was literate because of the job applications and expressing sympathy with Mr Nicoll's late instruction. The court could therefore have confidence in Mr Keith's views.

[36 ] In contrast, Mr Nicoll had interviewed the pursuer by telephone for a period of 15 to 20 minutes. He did not have the opportunity to have regard to all the information which Mr Keith gleaned from a lengthy personal interview. Given the preparation undertaken it was not surprising that Mr Nicoll's report was poor. When enquiring as to what the pursuer would have done but for the accident and after being made redundant he went no further once the pursuer had said he would work with his brother. He defended this position by saying that he asked the pursuer twice and "spent three or four minutes on it" - which impressed Mr Nicoll as a lengthy period of time. In evidence Mr Nicoll said that he relied a lot on the information contained in Mr Keith's report. However, he denied that Mr Keith's report raised the prospect of doing other jobs such as a construction operative. He was surprised when confronted with the other potential jobs raised by the report. He conceded that had he may have changed his opinion in his report. He had either (a) not taken time to consider Mr Keith's report properly or (b) he had found an answer which suited him and he did not press it further. There was also the danger highlighted by Mr Keith:-

(a) that the figures being used by Mr Nicoll were the median rather than the mean. Mr Keith pointed out the relative merits and drawbacks of each approach and did not condemn either approach out of hand. Mr Nicoll, however, seemed to use them interchangeably;

(b) that the figures being used by Mr Nicoll were from too small a sample, a concern echoed by the producer of the statistics themselves; and

(c) that Mr Nicoll was looking at the wrong type of information, in that he looked at statistics which considered only those who had returned to work and did not consider those who were doing other things.

[37 ] In evidence Mr Nicoll seemed to deal with questions based upon his observations from his own working career rather than on objective testable sources. He confessed to a dislike of statistics and he relied upon his own expertise. However, he did not think that his job required skill. His evidence gave the impression of being off the cuff.

[38 ] Mr Blessing submitted that the evidence of Mr Keith should be preferred.

[39 ] It was difficult to say with any degree of certainty what the pursuer would have done but for the accident.

[40 ] The pursuer had an offer of employment with his brother, James Munnoch, that he may have taken up. Given that he did not know what he was going to get paid, or the working hours, there was a question mark over how well formed this plan was. The pursuer would have gone for the best paid job. On the evidence, the pursuer's brother would not have been in a position to indicate bonus payments at the time of the pursuer's redundancy. His brother would have required him for 50 hours a week, paying between £5.50 and £6.00 per hour giving a gross wage of £14,950 (£11,800 net). The bonus would take the net figure to a range of between £15,150 and £18,350. The picture is complicated by the fact that James Munnoch had an accident which would have required the pursuer to be laid off, at least for a period.

[41 ] Mr Keith's view was that the pursuer would have earned lower quartile to median earnings (average £13,963 net) for 3 years, followed by 2 years of median earnings (£15,059 net), followed by earnings at the median to upper quartile level (£16,593.50).

[42 ] Mr Blessing submitted that would not be appropriate to base loss of earnings on the figures postulated by the pursuer's brother. Indeed he suggested that it would be unfair to do so. The evidence regarding employment with his brother simply added confidence to the report of Mr Keith. Mr Patterson, who was 16 years the pursuer's senior, had no difficulty in finding work at a contact lens factory earning £16,800 (£13,100 net). Everyone in the pursuer's former factory was given careers advice and of 26 people only one remained without a job at the foundry's closure and that was through choice. As a further confidence check to Mr Keith's figures one could look to the job trial for the recycling job that the pursuer was unable to complete. Earnings for that job were £22,000 gross (£16,606 net).

[43 ] Trying to analyse what actually would have happened is problematic. If plans are well formed then the court can, indeed must, have regard to them. However, in the absence of anything quite so concrete it was appropriate to take the expert's view - as expressed by Mr Keith.

[44 ] Against that background, Mr Blessing dealt with past and future loss and the related question of loss of employability and increased job turnover as follows.

Past Loss of earnings (Pursuer)

[45 ] In terms of the Joint Minute loss of earnings until 19 August 2004 is agreed at £4,586.28. £420 falls to be deducted to reflect the pursuer's earnings as a security guard.

[46 ] From 19 August 2004 the pursuer would have been earning an average of £13,963 net until the date of assessment in the present case which was 3 July 2006.

[47 ] Provision also requires to be made for interest.

Future Loss of Earnings (Pursuer)

[48 ] Mr Keith's evidence was that the pursuer would have earned £13,963 net until 19 August 2007, then £15,096 until 19 August 2009. Thereafter he would have earned £16,593.50.

[49 ] On that basis, Mr Blessing calculated a time-weighted average for the pursuer's working life as being £16,332.88. He arrived at that figure by multiplying the net earnings by the number of years that the pursuer was expected to earn them and then divided by the number of years the pursuer had left to work.

[50 ] Mr Blessing also calculated a time-weighted average for the pursuers' projected earnings as being £11,659.93.

[51 ] For the first year the pursuer would lose £16,332.88.

[52 ] Thereafter his yearly loss would be £4,672.95 (£16,332.88 less £11,659.93).

[53 ] A gross multiplier of 16.95 was identified from Ogden Tables (for a male retiring at age 65) with an adjustment factor of 0.93 (for factors other than mortality). That gave Mr Blessing a net multiplier of 15.76.

[54 ] Mr Blessing's approach was to allow one full year at £16,332.88 and then to add the product of using a multiplicand of £4,672.95 and a multiplier of 14.76.

[55 ] That produced a total future loss of earnings of £85,321.98 as at 3 July 2006.

Loss of Employability / Increased Job Turnover (Pursuer)

[56 ] In addition, submitted Mr Blessing, there is also a loss arising from the fact that the pursuer can be expected to be out of work more frequently and for a longer time on each occasion. There was evidence adduced to that effect.

[57 ] In particular, it was suggested, the pursuer is 50% through his working life. The average number of jobs for a disabled person is 14. The pursuer can therefore expect to change jobs 7 times compare with an able bodied person's 3.5 times. The pursuer will be out of work for 46 weeks compared to an able bodied person's 23 weeks each time he is unemployed. He will be out of work for a total of 322 weeks compared with an able bodied person's 80 weeks. The difference is 241.5 weeks, or 4.64 years. Add to that the fact that the pursuer will have to change occupation and move back down the "earnings ladder" more frequently than an able person.

[58 ] Under this head, Mr Blessing suggested allowing 4 year income at £11,659.93 to give a total of £46,639.73.

Past Services (Pursuer)

[59 ] In relation to past services, Mr Blessing suggested the following approach.

[60 ] Sharon Lee, the pursuer's partner spent 2 hours at the hospital every day for the first month - a total of about 60 hours.

[61 ] She then cared for the pursuer for 8 hours a day for 5 months - a total of 1,232 hours.

[62 ] Thereafter she devoted 4 to 5 hours per week to tasks she did not normally have to do - a total (assuming 4 hours per week) of 541 hours.

[63 ] In total Mr Blessing submitted that the award should be for 1,833 hours at £5.00 per hour - a total of £9,165 plus interest.

Future Services (Pursuer)

[64 ] In his submissions Mr Blessing recognised that there were in fact no averments on Record in relation to future services. I was told that that was "by virtue of oversight" which had been highlighted to opposing counsel as the case called. The defenders were aware that the claim was to be made under that head. It is present in the pursuer's valuation. It is present in the defenders' valuation. Mr Blessing submitted that there was no prejudice. He moved to be allowed to amend to include averments about future services.

[65 ] In particular, Mr Blessing sought to introduce at the end of Article 6 of Condescendence the following:-

"(vi) and future services in terms of s.8 and s.9 of the Administration of Justice Act 1982 to reflect the gardening and household chores that the pursuer used to do and is now, and will continue to be, unable to do and will be completed for him by inter alia his partner Sharon Lee."

[66 ] The motion was opposed but, having heard counsel for the defenders, I have decided that it would be an appropriate exercise of my discretion to allow that amendment. Ms Hodge addressed me in relation to the assessment of future services - as outlined below.

[67 ] Mr Blessing suggested the following calculation.

[68 ] Four hours per week produces approximately 200 hours per year. At £5.00 per hour the multiplicand is £1,000. A suitable multiplier was said to be 17.

[69 ] The pursuer's total claim for future services is therefor £17,000.

The Submissions for the Defenders

[70 ] Ms Hodge's submissions for the defenders were to the following effect.

General (Defender)

[71 ] Ms Hodge very fairly indicated that, on the evidence, she was not suggesting that the pursuer was not genuine. Nor was she attempting to suggest that he was lying or deliberately exaggerating. There was, however, a degree of scepticism about the pursuer's description of what he was unable to do and there was, perhaps a tendency on his part to take a more pessimistic view and "over-egg the pudding". There were inconsistencies in his evidence.

[72 ] The evidence of his brother should also be approached with some scepticism.

[73 ] At the end of the day, the two medical experts were not very far apart. There was going to be some continuing restriction in the pursuer's abilities. The difference was essentially one of emphasis.

Solatium (Defender)

[74 ] Ms Hodge submitted that an award of £10,000 would be appropriate for solatium (two-thirds being attributed to the past).

[75 ] The defenders placed solatium in the range described in the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injuries Cases, Chapter 6, section B ("Back Injuries"), paragraph (b) ("moderate") (ii).

[76 ] I was also referred to:-

· Dall v Gaughan 2004 SCLR 1073 (£11,000 adjusted for inflation to £11,500); and

· Emslie v Bell 12 August 2004, Lord Menzies (£12,000 adjusted for inflation to £12,300).

[77 ] Ms Hodge indicated that she had at first been drawn to paragraph (b)(i) of the Judicial Studies Board Guidelines but, having further considered the circumstances and the consequences for the pursuer, she considered that paragraph (b)(ii) was more appropriate.

Loss of Earnings / Loss of Employability (Defender)

[78 ] The defenders' submissions depended, to some considerable extent, on the proposition that the pursuer would have worked for his brother.

[79 ] The defenders also relied upon the evidence of their employment consultant, Mr Nicoll- who was criticised by Mr Blessing.

Past Loss of earnings (Defender)

[80 ] In relation to past loss, Ms Hodge suggested the following approach and figure.

· From 27 November 2003 until 19 August 2004 (agreed by Joint Minute) - £4,586.

· From 31 August 2004 until 30 April 2005 (loss of wages with brother) - £5,465.

· From 1 October 2005 (8 months at £9,745) - £6,497.

[81 ] The total, including provision for interest, was calculated to be £18,033.

[82 ] £420 plus interest also falls to be deducted - to reflect the pursuer's earnings as a watchman.

Future Loss of Earnings (Defender)

[83 ] There was a large degree of speculation in relation to future loss, suggested Ms Hodge, but both employment experts were agreed that the pursuer would find a job.

[84 ] A broad impressionist view was appropriate - rather than an approach based on multiplier and multiplicand.

[85 ] I was invited to accept Mr Nicoll's evidence.

[86 ] There would be no loss after two years.

[87 ] On the defenders' approach, a lump sum for loss of employability was all that should be awarded.

Loss of Employability (Defender)

[88 ] There were several ways in which a figure for loss of employability might be illustrated or cross-checked - but they all fell within modest limits of between £3,600 and £7,000.

[89 ] It was submitted that any multiplicand was very modest - between £95 and £250.

[90 ] A multiplicand of £250 and a multiplier of 14.4 would produce a total of £3,600.

[91 ] A lump sum reflecting six-months wages at £9,745 per annum would be £4,872.

[92 ] In short, the defenders submitted that an appropriate award for loss of employability was a lump sum of £5,000.

Past Services (Defender)

[93 ] In relation to section 8, Ms Hodge based her assessment on Sharon Lee visiting hospital every day for 2 hours from 27 November 2003 until 24 December 2003 - a total of about 52 hours.

[94 ] Thereafter Ms Hodge allowed for 8 hours per day (plus 2 extra hours at weekends) until 16 January 2004 (when the pursuer's cast was removed) - a total of about 200 hours.

[95 ] Allowing for 250 hours at £3.00 per hour (a discounted figure to reflect non-commercial rates) produced a total of £750.

[96 ] Thereafter, in relation to the period to the end of March 2004, Ms Hodge suggested a lump sum of £500.

[97 ] That gave a total for past section 8 services of about £1,250.

[98 ] In relation to past section 9 services, a broad brush approach was favoured in relation to grass cutting and extra housework.

[99 ] Ms Hodge suggested about £500 per annum from 27 November 2003 until 1 June 2006 - a total of about £1,250.

[100 ] The total for past services, on a broad lump sum basis, was therefore £2,500 - plus interest at 4%.

Future Services (Defender)

[101 ] Ms Hodge opposed the pursuer's amendment in relation to future services, and suggested that if there is to be any award in relation to future services it should be a lump sum of no more than £3,000.

Discussion

[102 ] I was satisfied that the evidence justified many, but not all, of the sums claimed by the pursuer.

[103 ] In general terms, I found the pursuer to be an honest witness. I also found him to be reliable in relation to most of this evidence. There were, however, some discrepancies. The pursuer did not tell the truth in a job application - but I accepted that he did so out of desperation to find a job (and thereby minimise his loss). There was also "surveillance" evidence - but it did not cause me to think that the pursuer was anything other than genuine.

[104 ] There were, however, several issues which were difficult to determine with any degree of certainty (as was recognised by counsel) and there were a number of imponderables.

[105 ] The best that I can do is to make an assessment on the evidence and arrive at an award that I consider to be fair and reasonable -bearing in mind that the onus lies on the pursuer.

[106 ] It might be helpful to illustrate my views by reference to the pursuer's suggested approach - showing the approach which I consider appropriate taking into account the various factors highlighted by the defenders.

[107 ] For ease of reference, I will also set out my conclusions in an associated spreadsheet (annexed).

[108 ] Before doing so, it might also be helpful to outline my views on some of the main figures in dispute. The other details should be self-evident from the spreadsheet itself.

Solatium

[109 ] On the evidence, at the end of the day, there was little real difference between the medical experts although there were some differences in emphasis.

[110 ] The pursuer's position was fairly summarised by Mr Blessing (as outlined above). In my view, the differences in emphasis are best resolved by accepting Mr McMaster's evidence - as Mr Blessing suggested.

[111 ] Mr McMaster's opinion and prognosis (in his report No 6/8 of Process) was to the following effect:-

"(The pursuer) is now in a stable stage and there will be no further improvement. He will always have some degree of mild intermittent discomfort in his back aggravated by stressful activities and will not be fit to return to his previous heavy manual work. However he appears well motivated with regard to work and should be capable of moderate activities which do not require repeated heavy lifting from a low level and he will find it difficult to work in awkward or confined spaces. He should be able to walk as far as is necessary but it will be uncomfortable to be in one position sitting or standing for more than 30 to 40 minutes without being given the opportunity to move around for a short period. Theoretically, it is possible that he could develop increasing degenerative arthritic changes in his back at the site of the fracture over a prolonged number of years but this is unlikely to cause any significant deterioration in his present level of pain or disability."

[112 ] In my opinion, in the whole circumstances and having regard to the competing submissions o the parties, the appropriate award for solatium for pain and suffering in this case is £18,000.

[113 ] Interest will run on two-thirds of that sum (attributed to the past) at 4 %.

Loss of earnings

[114 ] In relation to loss of earnings and loss of employability, I preferred the evidence of Mr Keith to that of Mr Nicoll.

[115 ] I did so essentially for the reasons outlined by Mr Blessing.

[116 ] That is not to say that I accepted all the pursuer's submissions in their entirety. There was a degree of uncertainty about the pursuer's employment prospects and potential earnings - with the added complication of the offer of employment from the pursuer's brother. There were a number of uncertainties and imponderables.

[117 ] I agree with Ms Hodge that the evidence of the pursuer's brother should be approached with some scepticism.

[118 ] In his report (No. 6/4 of Process) Mr Keith concluded inter alia that:-

"7.4 (The pursuer) reports that employment as a driver/labourer with his brother, a plumber, would have been an option at the time of the redundancy, and one which he would probably have taken, but for the accident ... .

7.5 Otherwise, using his transferable skills Mr Munnoch would have had little difficulty finding other employment. Earnings would have been higher than those apparently being offered by his brother ... .

7.6 Post-accident, Mr Munnoch is placed at a major disadvantage in the labour market, in terms of the range of occupations open to him, in terms of his ability to find and perhaps sustain work, and in terms of probable earnings.

7.7 Nevertheless, he should be able to find employment of an elementary nature ... In such employment, and given his symptoms and other issues, employment may to some extent be intermittent."

[119 ] I accepted the evidence to the effect that working with the pursuer's brother was simply one option for the pursuer. As a result of the accident, a whole broad occupational area is not open to the pursuer - such as heavy jobs and manual active employment - essentially as outlined by Mr Blessing.

Past loss of earnings

[120 ] In relation to past loss of earnings, I was satisfied that on the evidence Mr Blessing's approach was appropriate and that the result was fair and reasonable.

[121 ] I was not persuaded by the defenders' arguments to the contrary.

[122 ] I preferred the evidence of Mr Keith rather than Mr Nicoll - for the reasons already outlined above.

Future loss of earnings

[123 ] In relation to future loss of earnings, I was satisfied that the pursuer's calculation provide a sound starting point.

[124 ] However, having regard to the defenders' submissions, I was also satisfied that the pursuer's figures should be modified downwards to reflect uncertainties and imponderables. Allowance for such matters might be made by selecting a reduced multiplicand and/or multiplier or by adopting a broader approach and awarding a reasonable lump sum.

[125 ] In the present case, in my opinion, it would be fair and reasonable to allow two-thirds of the sum sought by the pursuer - as outlined in the spreadsheet (annexed).

Loss of employability / increased job turnover

[126 ] In relation to loss of employability / increased job turnover, I was satisfied that the pursuer's approach to loss of earnings did not adequately compensate for the fact that the pursuer can now expect to be out of work more frequently and for longer times on each occasion.

[127 ] However I was not persuaded that this head of claim, on the evidence, justified an award of four years income at £11,659.93.

[128 ] In my opinion, a lump sum award of £23,000 would be fair and reasonable.

[129 ] In general terms, that is slightly less than two years' income at £11,659.93.

Past Services

[130 ] In relation to past services, the pursuer's approach provides another useful starting point. The claim was for 1,833 hours at £5.00 per hour - a total of £9,165.

[131 ] However, having regard to the defender's submissions, I was also satisfied that that the pursuer's figures should be modified downwards. A broad approach is more appropriate.

[132 ] In my opinion, the appropriate course is to allow a modest lump sum of £3,500 (divided equally between section 8 and section 9) plus interest.

[133 ] In general terms, that is slightly less than one-half of the hours claimed by the pursuer - at £4.00 per hour.

Future Services

[134 ] In relation to future services, I was satisfied that there should be some award under this head.

[135 ] However, having regard to the defenders' submissions on the merits of that head of claim, I was not persuaded that the pursuer's multiplier/multiplicand approach was justified.

[136 ] The factual position was not sufficiently clear to justify anything more than a modest lump sum.

[137 ] In my opinion, a total award £3,500 would be appropriate under this head (divided equally between section 8 and section 9).

Further details

[138 ] I was also informed that an interim payment of £5,000 was made to the pursuer by the defenders on 22 November 2005. As requested, I shall deduct that interim payment, and attendant interest, from my award.

[139 ] I also propose to allow interest on the total award at 8 per cent per year from the date of assessment, 3 July 2006, until payment.

Conclusions

[140 ] In the whole circumstances, in my opinion, damages can be assessed fairly and reasonably as follows:-


Heads of Claim		Asssessment


1. Solatium inclusive of interest	£	19,254.24


2. Past loss of earnings inclusive of interest		33,444.91


3. Future Loss of Earnings		56,881.32


4. Loss of Employability / Increased Job Turnover		23,000.00


5. Services		7,364.00

		_________

Total heads of claim		139,944.47

Less

6. Interim payment inclusive of interest		5,122.19
		_________


Total		134,822.28
Less
Benefits		0.00
		_________

Total	£	134,822.28
		_________

[141 ] My conclusions and calculations are set out in the spreadsheet (annexed) - which I refer to for its terms.

[142 ] An Excel version of that spreadsheet can also be obtained by emailing a request to [email protected].

Decision

[143] For the reasons outlined above, I propose to grant decree for payment by the defenders to the pursuer of the sum of £134,822.28 Sterling with interest thereon at the rate of 8 per cent per year from 3 July 2006 until payment.

[144 ] Before doing so, however, I shall put the case out "By Order" so that parties have an opportunity to suggest corrections to my arithmetic and my interest calculations.

[145 ] I shall also reserve the question of expenses.

Annexation : Assessment of Damages

David Duncan William Munnoch v Tay-Forth Foundries Limited

September 2007				Lord Kinclaven


PART 1: GENERAL

Background details of dates, age, time periods and interest

Dates

	(a)	Pursuer's date of birth			01/06/1964
	(b)	Date of Accident			27/11/2003
	(c)	Date of Pursuer's redundancy			19/08/2004
	(d)	Date of Assessment			03/07/2006

Age

	Pursuer's age at time of accident				39.52	years
	Pursuer's age at time of redundancy				40.24	years
	Pursuer's age at date of assessment				42.12	years

Time Periods

	From	(b)	Accident		27/11/2003
	To	(c)	Redundancy		19/08/2004
	Period				0.73	years

	From	(c)	Redundancy		19/08/2004
	To	(d)	Assessment		03/07/2006
	Period				1.87	years

	From	(b)	Accident		27/11/2003
	To	(d)	Assessment		03/07/2006
	Period				2.60	years

Interest

	From	(b)	Accident		27/11/2003
	To	(d)	Assessment		03/07/2006
	Period				2.60	years
	At half judicial rate				4.00	% pa
	Interest as multiplier				10.40	%

PART 2: HEADS OF CLAIM


*1. Solatium -* for pain and suffering

Pursuer claims			£	25,000.00

Having regard to the defenders' submissions
Allow			£	18,000.00
Apportion				0.67	% to the past

i.e.
Past Solatium				12,060.00
Plus
Interest
on past solatium
at half judicial rate		4.00	%
i.e.	x	10.40	%	1,254.24

Future Solatium				5,940.00
				_________


*Total solatium* inclusive of interest**						£	19,254.24


2. Past Loss of Earnings			(for Periods A + B)

Pursuer claims

Period A
Loss in Defenders' employment
From	(b)	Accident		27/11/2003
To	(c)	Redundancy		19/08/2004
Period				0.73	years

Period B
Subsequent Loss
From	(c)	Redundancy		19/08/2004
To	(d)	Assessment		03/07/2006
Period				1.87	years

Period A
Loss agreed by Joint Minute			£	4,586.28
Less earnings as security guard				420.00
				_________

				4,166.28
Period B
Loss of			13,963.00		net per annum
For			1.87		years
			_________

				26,128.02
				_________

Sub-total of A + B				30,294.30

Plus
Interest
on past loss of earnings
at half judicial rate		4.00	%
i.e.	x	10.40	%	3,150.61
				_________

Allow				33,444.91


Total net past loss of earnings (A+B) inclusive of interest						£	33,444.91


3. Future Loss of Earnings			(For periods A + B)

Pursuer claims

Period A
Loss of net earnings in first year

Total for A					16,332.88

Period B
Loss in second and subsequent years

Multiplicand
Pre-accident net earnings per annum				16,332.88
Net future earnings per annum				11,659.93
				_________

Continuing net loss per annum				4,672.95

Multiplier
Ogden Tables
Table	9
Loss of earnings to pension age 65 (males)
For male aged		42	years
At discount rate of		2.5	%

Gross multiplier			16.95
Allow for risks other than mortality
		x	0.93
			_________

			15.76

Net multiplier				14.76
				_________

Total for B					68,989.10
					_________

Total A + B					85,321.98

Having regard to defenders' submissions
Allow	x	0.67	thereof	i.e.	56,881.32


Total future loss of earnings (A + B)						£	56,881.32


4. Loss of Employability / Increased Job Turnover

Pursuer claims
Projected earnings				11,659.93	net per annum
For				4.00	years
				_________

				46,639.72

If allow	x	0.50	thereof	23,319.86

Having regard to defenders' submissions
Allow for a lump sum of				23,000.00


Loss of employability / increased job turnover						£	23,000.00


5. Services: Administration of Justice Act 1982 sections 8 and 9

Past Services

Pursuer claims				1,833.00	hours
At			£	5.00	per hour
				_________

				9,165.00

Having regard to defenders' submissions
Allow for a lump sum of				3,500.00

Plus
Interest	at half judicial rate
x	10.40	%		364.00
				_________

				3,864.00

Past services inclusive of interest						3,864.00

Future Services

Pursuer claims			£	1,000.00	per annum
For				17.00	years
				_________

				17,000.00

Having regard to defenders' submissions
Allow for a lump sum of				3,500.00

Future Services						3,500.00
						_________

						7,364.00


Total services						£	7,364.00
							_________


Total Heads of Claim						£	139,944.47


Total		b/f				£	139,944.47

*6. Less interim payment*

Interim Payment				5,000.00
Received on				22/11/2005

Interest
From				22/11/2005
To		Assessment		03/07/2006
Period				0.61	years

At half judicial rate				4.00	% pa
Interest as multiplier				2.44	%

Interim Payment				5,000.00
Plus
Interest
at half judicial rate		4.00	%
i.e.	x	2.44		122.19
				_________

*Total interim payment inclusive of interest*						£	*5,122.19*
							_________

TOTAL						£	134,822.28
							_________

PART 3: SUMMARY

Heads of Claim					Asssessment


1. Solatium inclusive of interest				£	19,254.24


2. Past loss of earnings inclusive of interest					33,444.91


3. Future Loss of Earnings					56,881.32


4. Loss of Employability / Increased Job Turnover					23,000.00


5. Services					7,364.00

					_________

Total heads of claim					139,944.47

Less

6. Interim payment inclusive of interest					5,122.19
					_________


Total					134,822.28
Less
Benefits					0.00
					_________

Total				£	134,822.28
					_________

Plus	Interest
	at	8.00	%
	from	03/07/2006
	until	payment

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Munnoch v Tay-Forth Foundries Ltd [2007] ScotCS CSOH_159 (18 September 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_159.html Cite as: [2007] ScotCS CSOH_159, [2007] CSOH 159

Scottish Court of Session Decisions